Business Immigration. An outline of Danish immigration schemes.

Transcription

1 Business Immigration An outline of Danish immigration schemes.

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3 3 Over the last two decades, Denmark has seen a significant increase in its numbers of foreign employees and professionals. Not only has the number of foreign employees from other EU Member States almost doubled from 2010 to 2016, but so has the number of non- EU employees who have been granted a work and residence permit under the special schemes outlined in the Danish Aliens Act.

4 4 Citizenship The Danish immigration rules differ for Nordic citizens, EU (and EEA) citizens, and non-eu citizens. Nordic citizens Generally, Nordic citizens (from Finland, Iceland, Norway and Sweden) are free to live and work in Denmark pursuant to an intra-nordic agreement. For any stay up to six months, Nordic citizens may freely travel in and out of Denmark without further registration. This also applies to Nordic citizens residing in other Nordic countries and commuting to work in Denmark. Only if a Nordic citizen moves to Denmark for more than 6 months must he or she register with the Danish national register. EU citizens EU citizens are free to live and work in Denmark pursuant to EU regulations on freedom of movement. Freedom of movement similarly applies to all EEA citizens, i.e. citizens from Iceland, Norway and Lichtenstein as well as Swiss nationals. However, EEA citizens from Iceland and Norway are already covered by the intra-nordic agreement, cf. above. Under the EU regulations on freedom of movement, EU citizens together with citizens from Lichtenstein (EEA) and Switzerland do not need a residence and work permit in order to reside and work in Denmark.

5 5 However, it is a requirement for any EU citizen (including citizens from Lichtenstein and Switzerland) that they obtain an EU residence document if their stay in Denmark exceeds three months. In the following, any reference to EU citizens includes citizens from Lichtenstein (EEA) and Switzerland. Non-EU citizens In order for a non-eu citizen to be eligible to work and reside in Denmark, he or she must apply for a residence and work permit from the Danish immigration authorities. Various special schemes have been designed in order to make it easier for highly qualified and/or skilled employees to obtain a residence and work permit in Denmark. However, in certain cases, non-eu citizens may perform work-related activities while in Denmark on a business visa, without holding a valid residence and work permit. When working with these special schemes it is imperative that the non-eu citizen (i.e. the employee) obtains the Danish residence and work permit before any work in Denmark is commenced. Any work performed prior to the actual granting of the residence and work permit will be a violation of the Danish Aliens Act, which may have significant consequences for both the employer and the employee. However, for companies who are covered by the so-called Fast-Track Scheme, it will be possible to allow employees to perform work immediately after they enter Denmark, even though the permit has not yet been issued. The Danish immigration authorities may at any time revoke or refuse to extend a residence and work permit if the legal grounds on which it was issued have changed, for instance if the non-eu citizen has been terminated from employment, or if the residence and work permit was obtained through fraud or the like. Employees who change jobs while staying in Denmark must apply for a new residence and work permit, which must be handed in to the Danish immigration authorities before the new work commences. A valid residence and work permit will usually lapse in the event that the non-eu citizen leaves Denmark for an extended period of time, or if the non-eu citizen is no longer residing in Denmark.

6 6 Special immigration schemes The Danish Aliens Act provides for various special immigration schemes, initiated to ensure that Danish employers may still hire qualified employees from non-eu countries. The special immigration schemes only apply to citizens from non-eu countries or non-eea countries. Further, the special immigration schemes do not apply to citizens from Switzerland, as such citizens are treated like EU/EEA citizens, cf. above. The Pay Limit Scheme The Pay Limit Scheme is a scheme that was designed in order to make it easier for professionals with high salaries to obtain a residence and work permit in Denmark. Requirements Duration Processing time The non-eu citizen must have been offered a job with an annual pay above a certain limit (in 2018 no less than DKK 417,793.60). In addition, salary and employment conditions must correspond to Danish standards. 4 years with the possibility of extension. Currently approx. 1 month.

7 7 The Fast-Track Scheme The Fast-Track Scheme enables so-called certified companies to employ highly qualified employees on short notice without having to wait for an application to be processed by the Danish immigration authorities. Also, the scheme offers the foreign national the option of working both in and outside Denmark without the residence and work permit lapsing. The processing time for a company to be certified under the Fast-Track Scheme is currently around 1 month. Requirements Duration Processing time The non-eu citizen must have been offered a job by a certified company. 4 years with the possibility of extension. Currently approx. 5 days. The job must be offered on the grounds of either 1) an annual salary within the requirements of the Pay Limit Scheme 2) employment as a researcher 3) employment at a high-level educational stay, or 4) short-term employment of up to 3 months.

8 8 The Positive List This scheme ensures easy access to the Danish labour market for non-eu citizens who have been offered a job in a profession currently experiencing a shortage of qualified professionals. These professions are listed on the Positive List. Requirements Duration Processing time The non-eu citizen must have been offered a job listed on the Positive List and have a written job contract specifying salary and employment conditions that at least correspond to Danish standards. For open-ended employment contracts the duration is 4 years with the possibility of extension. Currently approx. 1 month.

9 9 Business Visa For short-term stays, non-eu citizens may perform work-related activities while in Denmark on a business visa without holding a valid residence and work permit. In order for a non-eu citizen to be eligible for a business visa, there must be an actual commercial connection between the non-eu company/organisation and the Danish company. The commercial relationship between the companies must be established prior to the non-eu citizen entering Denmark. Moreover, a business visa is only applicable in case the individual concerned is involved in specific activities such as teaching, attending a course, attending meetings, negotiations and briefings, or training only. It is important to note that a business visa does not permit the performance of any work that is related to (1) the creation of a product, (2) a change of a product or (3) any contribution to the commercial output of a Danish company in any way. In these situations, the employee must obtain a residence and work permit before commencing the work. As a consequence, a business visa is not the correct basis for staying legally in Denmark if the individual in question is in fact performing actual work. Requirements Duration Processing time The Danish immigration authorities must be informed in detail of the activities that the employee is to perform during his or her stay in Denmark. Furthermore, non-eu citizens must be able to document their line of business and background, and the Danish company must confirm the visit. Non-EU citizens may spend a maximum of 90 days per six months in Denmark or another Schengen country. Currently approx days.

10 10 Consequences of violation of the Danish Aliens Act Any non-compliance with the Danish Aliens Act and the requirements to obtain and hold a valid residence and work permit (or business visa) may have significant consequences for both the employer and the employee. The Danish Immigration Service notifies the police of any possible violations of the Danish Aliens Act. While a non-eu citizen may be deported from Denmark and may also be subject to a ban on re-entering into the Schengen countries for 2 years, the employer may face fines ranging from DKK 10,000 to DKK 20,000 per month of employing a non- EU citizen with an invalid residence and work permit. In the most severe cases, the fines can be even higher.

11 11 Our team Bech-Bruun has a highly specialised business immigration law team, offering legal advice to accommodate the needs of the individual undertaking. For many years, we have assisted Danish undertakings in obtaining work and residence permits for their foreign employees. If you have any questions or need assistance with business immigration matters, please do not hesitate to contact one of our immigration law specialists or direct inquiries to your usual Bech-Bruun contact person. Lise Lauridsen Partner T E llau@bechbruun.com Thomas Christian Thune Managing associate T E tct@bechbruun.com Sandro Ratkovic Associate T E srat@bechbruun.com

12 Bech-Bruun is a market-oriented law firm offering specialist services. With our wide range of products, we serve a large section of the Danish corporate sector, the Danish public sector as well as international enterprises. With the help of more than 500 talented employees and some of the most recognised and experienced experts in the business, we customise solutions to our clients, embracing all of our business areas. Our goal is to strengthen our clients businesses and help them outperform their competitors. Copenhagen Denmark Aarhus Denmark Shanghai China T