Documentation Database: Questionnaires: Family Reunification Directive 2003/86/EC
Denmark

Subject Comparative study on the implementation of the Family Reunification Directive 2003/86/EC in (25) Member States
Data from other countries Go to Questionnaire (with links to the answers of all other countries)
This Form Data by Denmark (14/12/2006)

Section Question Answer

A. General
A.1 top Q: Has the Directive been implemented in your country? If so, please add the references and the texts of relevant legislative and administrative measures and the dates they entered into force.

answer Denmark A: No, the Directive has not been implemented due to the Danish reservation concerning legal measures under Title IV TEC. The answers below to the questions on specific provisions will be based on national rules on family reunification according to the Aliens Act (as of 1 December 2006, cf. Consolidation Act No. 945 of 1 September 2006 of the Danish Ministry of Refugee, Immigration and Integration Affairs; hereinafter AA).
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A.2 top Q: Has there been a political or public debate on the implementation of the Directive? If so, please summarize the main issues of the debate.

answer Denmark A: No, see answer on A1.
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A.3 top Q: What have been the main changes in the national law or practice due to the Directive. Please indicate for each change whether it improved or deteriorated the legal status of third country nationals and their family members? Did it make the national rules more strict or more liberal?

answer Denmark A: No, see answer on A1.
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A.4 top Q: Are there already judgments of national courts applying or interpreting the Directive? If so on which issues?

answer Denmark A: No, see answer on A1.
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A.5 top Q: Did the judgment of the Court of Justice of 27 June 2006 in the case Parliament v. Council (C-540/03) already have any effect on the implementation of the Directive, the national practice or case-law or the legal literature? If so, please specify the effects.

answer Denmark A: The question is probably not relevant due to the Danish reservation towards the Directive, see answer on A1.
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B. Questions on specific provisions
B.1 top Q: Article 3(1):
How is the clause: who has reasonable prospects of obtaining the right of permanent residence
implemented in the national law?

A:
According to Section 9 (1) (i) AA, if family reunification is sought for a spouse/partner the sponsor has to be either:
  • a Danish national
  • a national of one of the other Nordic countries
  • holding a residence permit under Section 7 vor 8 (asylum, either with Convention refugee status or with subsidiary protection) or
  • having held a permanent residence permit for more than the last 3 years (i.e., normally after 10 years of residence; see answer on Article 15 below).
As a modification of the latter requirement, family reunification for a child requires only that the sponsor is holding a permanent residence permit or a residence permit with the possibility of permanent residence, cf. Section 9 (1) (ii).
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B.2 top Q: Article 3(3):
Will a third country national also having the nationality of your country be able to rely on the Directive?

answer Denmark A: No, not relevant due to the Danish reservation, see answer on A1.
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B.3 top Q: Article 3(3):
Are nationals of your country and their third country national family members entitled to the same treatment, to a more privileged treatment or to less favourable treatment as provided in the Directive? Please specify the differences.

answer Denmark A: The national rules on family reunification in the AA that apply to Danish nationals (except in such cases as allow them to invoke Directive 2004/38 under the Singh principles) are generally less favourable than Directive 2003/86.
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B.4 top Q: Article 4(1):
Has the right to family reunification of spouses and minor children been codified in national law? If so, please mention the relevant provisions of national law.

answer Denmark A: Yes, see Section 9 AA. The rules are structured as follows:
  • Family reunification with spouses/partners
    • Section 9 (1) (i) provides the basic requirements
    • Section 9 (2) - (11) lays down a number of additional requirements
  • Family reunification with unmarried minor children
    • Section 9 (1) (ii) provides the basic requirements
    • Section 9 (12) - (16) lays down additional requirements.

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B.5 top Q: Article 4(1) and 4(6): (children over 12 or 15 years)
Does the national law of your country provide special rules concerning the admission of children aged over 12 or 15 years?

answer Denmark A: Yes, according to Section 9 (1) (ii) AA the general age limit for children seeking family reunification is 15 years.
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B.6 top Q: If children over 15 are prevented from applying for family reunification under what conditions are they entitled to reside considering the obligation for Member States second sentence of Article 4(6)?

answer Denmark A: If exceptional reasons, including respect for family unity, make it appropriate, a residence permit may be issued under Section 9 c (1) AA to a child over 15 years applying for family reunification. The travaux préparatoires of this provision have laid down various circumstances which shall be considered exceptional in this regard.
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B.7 top Q: Is your country barred from using the exceptions in Article 4(1) last sentence and Article 4(6) by the standstill-clauses in those two provisions?

answer Denmark A: Not relevant due to the Danish reservation towards the Directive.
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B.8 top Q: Article 4(3) (unmarried partners)
Has the provision on the admission of unmarried partners been implemented in national law? If so, under what conditions do they have a right to family reunification?

answer Denmark A: According to Section 9 (1) (i) AA unmarried partners have a right to family reunification if they have been living in regular cohabitation of prolonged duration; in practice this means that the partners normally have to prove that they have been cohabiting for a total period of 1˝-2 years, although this requirement may be modified if they can show good reasons why they have only been able to cohabit for a shorter period, and/or other proof of stable long-term relationship.
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B.9 top Q: Article 4(5) (minimum age spouse)
Does the national law require a minimum age for the admission of spouses that is higher than 18 years? If so what is the minimum age?

answer Denmark A: Yes, 24 years according to Section 9 (1) (i) AA. This requirement may be dispensed with by way of issuing a residence permit under Section 9 c (1), yet under very restrictive criteria.
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B.10 top Q: Article 5(2) (documents and fees)
What kind of documentary evidence has to be presented with a family reunification application?

answer Denmark A:
  • Valid passport or other travel document,
  • Passport-like photo of applicant(s),
  • Documents proving the family relationship (marriage/registered partnership/ cohabitation, or maternity/paternity of child and, if relevant, custody document; original documents must be presented as well as an authorised translation in Danish or English language),
  • Statement of actual or intended cohabitation of the applicant spouses/partners, and
  • Integration declarations signed by both the applicant spouse/partner and the sponsor.

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B.11 top Q: Does the applicant have to pay any fees and, if so, what is the (total) amount of those fees?

answer Denmark A: No.
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B.12 top Q: Article 5(3) (place of application)
May an application be submitted when the family members are already residing in the Member State?

answer Denmark A: As a general rule, residence permits for family members must be obtained before entry into Denmark. After entry, an application cannot be submitted or examined unless exceptional reasons, including respect for family unity, make it appropriate, cf. Section 9 (18) AA. There is some uncertainty as to the criteria for obtaining such dispensation, and the criteria have formally been widened in recent years, but some cases seem to suggest that restrictive criteria may be applied in practice.
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B.13 top Q: Article 5(4) (length of the procedure)
Is there any time limit for the decision on the application by the administration?

answer Denmark A: No.
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B.14 top Q: Article 5(5) (interest of the child)
How is the provision that Member States 'shall have due regard to the best interests of minor children' implemented in national law?

answer Denmark A: In terms of dispensing with the age limit of 15 years for submitting an application for family reunification under Section 9 (1) (ii) AA. If exceptional reasons, including respect for family unity, make it appropriate, a residence permit may be issued to a child over 15 years according to Section 9 c (1) AA. The travaux préparatoires have laid down various circumstances to be considered exceptional in this respect, reflecting considerations of the best interests of the child.
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B.15 top Q: Article 6 (public policy exception)
How has the public policy and public security exception been implemented and defined in the national law?

answer Denmark A: According to Section 10 (1) AA a residence permit cannot be issued if:
  • The alien must be deemed a danger to national security,
  • The alien must be deemed a serious threat to public order, safety or health, or
  • The alien is deemed to fall within Article 1 F of the Refugee Convention.
In cases other than those just mentioned, a residence permit cannot be issued unless particular reasons, including respect for family unity, make it appropriate, if the applicant is or would be expellable due to offences committed or suspected, or an alert has been entered into the SIS, cf. Section 10 (2) AA.
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B.16 top Q: What are the similarities and differences compared to the definitions of the same notions in the context of free movement of EU citizens?

answer Denmark A: While the above mentioned rules under Section 10 (1) and (2) AA formally apply also to EU citizens invoking free movement rights, they will in practice be implemented less restrictively in order to comply with EU law, cf. the general harmonisation rule in Section 2 (3) AA.
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B.17 top Q: Article 7(1)(a) and (c)(income and housing)
How is the income requirement specified in the national law?

answer Denmark A: Unless exceptional reasons, including respect for family unity, make it inappropriate, it will be a condition for family reunification that the sponsor proves his/her ability to maintain the applicant spouse/partner, cf. Section 9 (3) AA.
For children applying for family reunification the sponsor's proof of maintenance ability will only be required if essential considerations make it appropriate, cf. Section 9 (12); in practice this will be the case if the sponsor has deliberately remained out of contact with the child for a longer period in which contact could have been established and reunification could have been sought.
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B.18 top Q: What is the level of net monthly income required (in euros)?

answer Denmark A: The level of income required depends on the age and family status of the sponsor and, if relevant, his/her household. Generally, the requirement implies that the sponsor's income must be so high as to exclude the sponsor and his/her family from receiving cash benefits under the social welfare legislation in order to cover ordinary living costs once the reunification has taken place. The required amount is app. 625 euros pr. adult person (including the applicant spouse/partner) + app. 160 euros pr. child in the household (cf. Ministerial Order No. 70 of 27 January 2006 on the assessment of maintenance ability in family reunification cases, Sections 7 and 8).
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B.19 top Q: Is there a housing requirement in force, and if so, what is the minimum surface of the accommodation (in square meters)?

answer Denmark A: Unless particular reasons, including respect for family unity, make it inappropriate, it will be a condition for family reunification that the sponsor proves that he/she disposes of his/her own dwelling of a reasonable size, cf. Section 9 (6) AA. Such condition will only be made for children applying for family reunification if essential considerations make it appropriate, cf. Section 9 (12); the housing requirement for children is practised in the same manner as the maintenance condition (see above).
If proof of housing is required, the sponsor will have to prove that he/she is entitled to dispose personally - as an owner or a tenant - of a dwelling of:
  • Either at least 20 square meters pr. person
  • Or with maximum 2 persons pr. separate room (cf. Ministerial Order No. 814 of 20 July 2004 on the housing requirement in family reunification cases, Section 7).

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B.20 top Q: Article 7(2) (integration measures)
Are family members required to comply with integration measures? If so, do they have to comply before or after admission and what are they actually required to do (follow a course, pass a test, etc.)

answer Denmark A: Yes, third country nationals will normally be required to participate in an introduction programme under the Act on Integration of Aliens (Consolidation Act No. 839 of 5 September 2005, as amended) upon taking up residence in Denmark. A recent proposal to amend Section 9 AA will, however, make it a precondition for family reunification for spouses/partners that an ‘immigration test' has been passed before the residence permit is issued, i.e. before admission (see Bill No. L 93/2006-07, amending the Aliens Act and the Act on Active Social Policy, proposed by the Minister of Refugee, Immigration and Integration Affairs on 29 November 2006).
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B.21 top Q: Are there any positive or negative sanctions (privileges, subsidies, fines, residence rights or other) attached to the integration measures?

answer Denmark A: Participation in the introduction programme will normally be a requirement for the receipt of cash benefits under the Integration Act. In addition to economical sanctions for the refusal of participation or absence from introduction measures, the right to permanent residence permit will normally be conditioned upon the applicant's successful participation in the introduction programme, cf. Section 11 (9) AA.
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B.22 top Q: Does the national law distinguish between the concepts 'integration conditions' and 'integration measures' (compare Article 4(1) last indent and 7(2))?

answer Denmark A: Not explicitly, but see above on proposed legislation. In addition, a requirement similar to the apparent meaning of Article 4 (1) last indent will apply to an applicant child living with one of the parents in their country of origin or another country, so that family reunification will only be permitted if the child has, or is able to obtain, such ties with Denmark that there is a basis for successful integration. This integration condition under Section 9 (13) AA does not apply, however, if the application is submitted within the first 2 years after the sponsor satisfied the conditions for family reunification, or if exceptional reasons including respect for family unity make it inappropriate.
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B.23 top Q: Article 8 (waiting period)
Is there any waiting period before the family reunification application can be filed?

A: As mentioned above (see answer on B1), if the sponsor is neither Danish or Nordic national nor having an asylum-based residence permit, he/she must have held a permanent residence permit for more than the last 3 years in order to be granted family reunification with a spouse/partner (i.e., the waiting period will normally be 10 years of residence for third country immigrants).
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B.24 top Q: Article 9(2) (privileges for refugees)
Which privileges granted by the Articles 10-12 are in the national law limited to family relationship that predate the entry of the refugees?

answer Denmark A: Most of the additional requirements for family reunification according to Section 9 (2) - (11) AA (for spouses/partners) can be dispensed with for refugees. Since the 2002 amendments of the AA such dispensation was generally limited to family relationships predating the entry of the refugee, but further amendments adopted in 2005 extended the privileges (i.e., the dispensation criteria) so as to include family relationships established subsequent to the entry under certain, rather narrow conditions. Notably, among these conditions is that the refugee's actual risk of persecution has to be tested at the time of processing the application for family reunification.
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B.25 top Q: Do other protected persons than Convention refugees benefit from the provisions of Chapter V of this Directive?

answer Denmark A: Yes, there is similar treatment under the AA rules on family reunification of all sponsors with an asylum-based residence permit, regardless whether they have Convention refugee status or have been granted subsidiary protection.
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B.26 top Q: Article 10(3) (family members of unaccompanied minors)
Are the parents, legal guardians or other family members of a refugee who is an unaccompanied minor, entitled to a residence permit under national law?

answer Denmark A: No, there is no entitlement (i.e., legal claim under a specific provision) to a residence permit for such persons. Family reunification with unaccompanied minors may be permitted on a discretionary basis according to Section 9 c (1) AA, but that is likely to be decided under very restrictive criteria.
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B.27 top Q: Article 11 (lack of documents)
Which rules on alternatives to official documents in case of lack of official documents proving the family relationship are provided for in the national law?

answer Denmark A: Section 40 (1) AA obliges applicants to provide such information as is required for deciding whether a residence permit can be issued. According to the travaux préparatoires of this provision, however, the obligation to provide official documents has to be implemented in a manner taking account of the particular circumstances prevailing in the applicant's country of origin. Hence, while there is no specific rule governing that situation, a refugee lacking official documentary evidence of the family relationship will in practice have his/her application for family reunification assessed under evidentiary rules largely in accordance with Article 11 of the Directive.
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B.28 top Q: Article 12 (exemption from requirements)
From which requirements for family reunification, mentioned in Article 7 or Article 8, are refugees or their family members explicitly exempted by national law?

answer Denmark A: Refugee sponsors are explicitly exempted from the lengthy waiting period normally required from third country nationals under Section 9 (1) (i) AA (see answers on Article 3 (1) and Article 8 above).
As regards the additional requirements for family reunification with spouses/partners under Section 9 (2) - (11) AA, including income and housing, refugees will normally fall within the dispensation criteria, thus in practice being exempted in accordance with the travaux préparatoires.
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B.29 top Q: Article 13(1) (visa facilitation)
How has the obligation to grant third country family members 'every facility for obtaining the required visas' been implemented in national law?

answer Denmark A: There is no specific rule on this, but normally administrative practice is likely to be in accordance with the standard laid down in Article 13 (1). There has, however, been reported certain practical difficulties in obtaining the requisite visa due to long distance or difficult access to Danish embassies (or even closed embassies at a particular stage of recent Danish history).
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B.30 top Q: Article 14 (equal treatment)
How has the right of admitted family members to 'access to employment and self-employment in the same way as the sponsor' been implemented in national law?
answer Denmark A: Aliens holding a residence permit for the purpose of family reunification are generally exempt from the requirement of a work permit, cf. Section 14 (1) (iv) and (vii) AA.
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B.31 top Q: Did your country make use of the exception to that equal treatment allowed under Article 14(2) of the Directive?
answer Denmark A: Not relevant, due to the Danish reservation (and in any event Danish law does not deviate from the general rule under Article 14 (1), see above).
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B.32 top Q: Article 15 (autonomous residence permit)
After how many years are spouses, unmarried partners and children entitled to an autonomous residence permit under national law? What other conditions are they required to fulfil in order to obtain such a permit?
answer Denmark A: An autonomous residence permit under Danish law must be understood as a permit that is protected against withdrawal in case of either expulsion of the sponsor or breakdown of the family relationship. Hence, it has to be a permanent residence permit which is normally issued after 7 years of lawful residence on the same legal and factual basis, cf. Sections 11 (3) and 19 (1) AA. In exceptional cases a permanent residence permit may be issued after 3 or 5 years of lawful residence (see below).
In addition to the required duration of residence, the issue of a permanent (i.e., autonomous) residence permit generally depends on the fulfilment of conditions relating to:
  • Criminal offences (exclusion due to serious criminal offences; suspension for periods between 2 and 15 years after conviction for a less serious criminal offence),
  • Completion of an introduction programme under the Integration Act,
  • Passing a test in the Danish language, and
  • Having no overdue debts to public authorities
    (cf. Section 11 (7) - (9) and Sections 11 a and 11 b AA).

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B.33 top Q: Under what conditions can an autonomous residence permit be obtained before the period of time normally required under national law?
answer Denmark A: According to Section 11 (4) AA a permanent (i.e., autonomous) residence permit may be issued after 5 years of lawful residence if the alien:
  • Has had permanent ties with the labour market as an employee or self-employed for the last 3 years, and must be assumed to continue to have such ties,
  • Has not received cash benefits under the Act on Active Social Policy or the Integration Act on an ongoing basis for maintenance purposes (apart from pension-like benefits) for the last 3 years, and
  • Has obtained essential ties with Danish society.
According to Section 11 (5) AA a permanent residence permit may be issued after 3 years of lawful residence if exceptional reasons make it appropriate.
According to Section 11 (6) AA a permanent residence permit may be issued irrespective of all of the abovementioned periods of residence, if essential considerations conclusively make it appropriate; in practice that may be the case for aliens having particularly strong affiliations with Danish society or with other persons living in Denmark.
In the exceptional cases here mentioned, the conditions under Section 11 (7) - (9) relating to criminal offences, introduction programme, etc. (see above) normally have to be fulfilled as well.
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B.34 top Q: Article 16(1)(a) (resources)
Is the income of family members taken into account for the calculation of the sufficient resources at the time of the renewal of the permit?
answer Denmark A: Yes, cf. Ministerial Order No. 70 of 27 January 2006 on the assessment of maintenance ability in family reunification cases, Section 15.
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B.35 top Q: Article 16(1)(b) (real family relationship)
Does the national law allow for refusal or withdrawal of a residence permit on the ground that the family member does no longer live in a real marital or family relationship? If so, which criteria have to be fulfilled under national law? Is the ground applicable to the relationship between parents and minor children?
answer Denmark A: Yes, according to Section 19 (1) (i) AA a time-limited residence permit may be withdrawn if the basis of the application or the residence permit was incorrect or is no longer present; this provision includes situations where the marital or family relationship has ceased to exist (i.e, can be proven to have ceased). It follows from Section 11 (2) that extension of the residence permit can therefore also be refused. If withdrawal or refusal of extension is being considered, the grounds for doing so have to be weighed against various humanitarian criteria such as those listed in Section 26 (1) (i)-(vi), cf. Section 19 (7) AA (see below).
In principle this ground of withdrawal or refusal of extension also applies to residence permits issued to minor children for the purpose of family reunification with their parent(s) in Denmark. However, if the only ground of withdrawal would be that the child no longer is unmarried/single or no longer lives with the person (parent or parent's spouse) having custody, such change of the family relationship to the sponsor will normally not result in the withdrawal of the child's residence permit after app. 1 year of residence in Denmark.
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B.36 top Q: Article 16(4) (marriage of convenience)
Does the national law contain provisions on fraud or on marriages or partnerships of conveniences? Is so are the definitions, checks and practices in conformity with Article 16(4)?
A: Yes, according to Section 9 (9) AA family reunification for a spouse/partner must be refused if there are definite reasons for assuming that the decisive purpose of contracting the marriage/establishing cohabitation was to obtain a residence permit. If the residence permit has already been issued, and fraud - relating either to possible marriage of convenience or to any other part of the basis for issuing the residence permit - can be proven subsequently, the residence permit can be withdrawn, cf. Section 19 (2) (i) AA; this provision applies even in cases where the spouse/partner has in the meantime obtained a permanent residence permit.
The checks undertaken in this regard seem to be generally in conformity with Article 16 (4), including both documentary evidence, data checks and the possibility for the immigration authorities to request police inspection of the spouses'/partners' common place of residence.
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B.37 top Q: Article 17 (relevant considerations)
How has this clause, requiring that certain specific elements are to be taken into consideration in the decision making on residence permits and removal orders, been implemented in the national law?
A: If an expulsion order is being considered, the grounds for removal must be weighed against various humanitarian criteria such as those listed in Section 26 (1) (i)-(vi) AA. Hence, regard must be had to whether expulsion can be assumed to be particularly burdensome, in particular because of:
  • the alien's ties with the Danish society,
  • the alien's age, health, and other personal circumstances,
  • the alien's ties with persons living in Denmark,
  • the consequences of the expulsion for the alien's close relatives living in Denmark,
  • the alien's slight or non-existent ties with his/her country of origin or other country of expected residence,
  • the risk that the alien will be ill-treated in his/her country of origin or any other country of expected residence, outside the scope of the asylum provisions in Section 7 AA.
According to the travaux préparatoires of the expulsion provisions in Part IV AA any decision to expel an alien must have due regard to Article 8 ECHR and other international obligations. This has resulted in a number of Supreme Court and other judgments which in practice significantly limit the scope of the expulsion provisions, especially the far-reaching rules in Section 22 (4) - (7) AA.
The criteria mentioned above apply correspondingly to decisions on withdrawal or refusal of extension of residence permits, cf. Sections 19 (7) and 11 (2) AA.
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B.38 top Q: Article 18 (judicial review)
Are the sponsor and his family members entitled to have a negative decision reviewed by a court or independent tribunal? If so, please specify the relevant provisions in the national law and the scope of the judicial review (full review, review on legality or marginal control only)?
answer Denmark A: According to Section 52 (1) (i) and (ii) AA the refusal of an application for a residence permit under Section 9 (1) (ii) (i.e., for a child below 15 years applying for family reunification with parent(s) in Denmark), as well as the withdrawal or refusal of extension of such permit, can be brought before the courts for special review proceedings. All other negative decisions relating to family reunification can be reviewed by the courts under the ordinary procedure for review of administrative acts, based on Section 63 of the Danish Constitution.
While the special review procedure under Section 52 AA can be characterised as implying full review, the ordinary Constitution-based procedure implies only review on legality of the administrative act.
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B.39 top Q: Article 18 (judicial review)
Is (publicly funded) legal aid available for an appeal against a decision to refuse fam-ily reunification or to withdraw the residence permit of a family member?
answer Denmark A: Yes, At least as regards applications for family reunification with children below 15 years, cf. Section 52 (4) - (5) Aliens Act. In other cases it may depend on a more concrete assessment of the basis for appeal under the general free legal aid scheme.
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C. Final questions
C.1 top Q: What are in your view the main strengths and weaknesses of the Directive?
answer Denmark A: Given that the Directive does not apply to/in Denmark, and has therefore not been implemented in Danish law, my assessment is only based on general analysis and considerations of the Directive. On this limited basis the main strength is probably the very fact of having adopted binding rules on (some aspects of) the right to family reunification, and the recognition of the special situation for refugees in this regard, while the main weakness is the vagueness in dealing with (many aspects of) this right and the important derogations/exceptions permitted to Member States. In addition, it is rather catastrophic that the Directive does not apply to persons in a refugee-like situation, most notably those who have been granted subsidiary forms of protection.
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C.2 top Q: Please add any other interesting information on the Directive or its implementation in your country that might be relevant for our study.
answer Denmark A: Not relevant in terms of implementation.
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C.3 top Q: Please send us copies of the relevant laws and regulations, of any legal or other publications on the Directive or of judgments of national courts applying or interpreting the Directive, if possible in electronic form.
answer Denmark A: The following documents are annexed to this questionnaire:
a) Laws and regulations:
  • Danish Aliens Act Consolidation Act No. 826 of 24 August 2005 of the Danish Ministry of Refugee, Immigration and Integration Affairs
b) Explanatory reports
    --
c) Publications:
    --
d) Judgements:
    --

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D. Table
D.1 top Q: This table refers only to mandatory provisions of the Directive.
Please choose for each article one of the four alternative labels:
  • correct transposition
  • no transposition
  • violation of the Directive
  • unclear
If you choose the label 'violation' or 'unclear', please add a footnote with a short explanation.
answer Denmark A: Not relevant
Articles of the
Directive
Opinion about TranspositionExplanation
5(5)
10(3)(a)
11
13(1)
14(1)
15
16(1)(b)
17
18

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