Denmark: Order No. 761 of 1994 on Residence in Denmark for Aliens falling within the Regulations of the European Community or the Agreement on the European Economic Area

Pursuant to section 2(3) and section 46c of the Aliens Act, cf. Consolidated Act No. 562 of 30 June 1995, and section 2(3) of Act No. 063 of 9 December 1992 on Denmark's Ratification of the Agreement on the European Economic Area, the following provisions are laid down:
(amended by the Order of the Ministry of the Interior dated 17 August 1995)

1.

(1) The provisions of this Order shall apply to any alien who is a national of a Member State i) of the European Community (an EC national) or any alien who falls within the Agreement on the European Economic Area (an EEA national) subject to the provisions of section 4 of this Order, insofar as the alien concerned, under the Community regulations or the Agreement on the European Economic Area, pursues an activity as an employed or self-employed person or provides or receives services in the territory of Denmark or, on the termination of his employment or self-employment, is entitled to maintain his residence in the territory of Denmark.

(2) The provisions shall likewise apply to the following members of such a person's family irrespective of their nationality:

i)His spouse and their descendants who are under 21 years of age or are his dependents.

ii)Dependent relatives in the ascending line of the EC or EEA national or his spouse.

iii)Any other dependent member of the family of the EC or EEA national who in the home country of the EC or EEA national was admitted into his household may be deemed to fall within the provisions of this Order if such a family member belongs to the household of the EC or EEA national in Denmark as well.

2.

(1) The provisions of this Order shall likewise apply to:

i)EC or EEA nationals who are recipients of invalidity or early retirement pensions or old-age benefits or of compensation in respect of accidents at work or occupational diseases, provided that such pensions, benefits or compensation are of such an amount that the recipients thereof, during their period of residence in Denmark, will not become a burden on the Danish social security system.

ii)EC or EEA nationals who have sufficient resources to avoid becoming a burden on the Danish social security system during their period of residence in Denmark.

iii)The following members of such a person's family irrespective of their nationality:

(a)His spouse and their descendants who are dependents.

(b)Dependent relatives in the ascending line of the EC or EEA national or his spouse.

(2) Furthermore, this Order shall apply to EC or EEA nationals who have been enrolled in Denmark on a recognised course of education qualifying for the taking up or pursuit of a regulated profession and to their spouses and dependent children irrespective of their nationality.

3.

(1) The provisions on spouses shall likewise apply in cases where a person over the age of 18 years cohabits at a joint address in a continuous long-term relationship with an EC or EEA national over the age of 18 years.

(2) For the issue of an EC/EEA residence certificate or residence permit to a cohabitee, cf. section 14, it may be a condition, in compliance with the provisions of the Aliens Act, that the person residing in Denmark undertakes to support and maintain the applicant and that the person who is charged with the duty to support and maintain provides proof of his capacity thereto.

4.

Nationals of Finland, Iceland, Norway and Sweden shall be subject to the provisions of the Aliens Act. Nationals of the said countries who satisfy the conditions herefore may file applications for EC/EEA residence certificates and thereby acquire rights in compliance with the provisions of this Order.

5.

The issue of an EC/EEA residence certificate shall be conditional upon the alien taking up permanent residence in Denmark.

6.

An EC/EEA residence certificate shall be issued to an EC or EEA national who, by declaration made by an employer, proves to pursue an activity as an employed person in the territory of Denmark or who proves to pursue an activity as a self-employed person or to provide or receive services within the territory of Denmark.

7.

An EC/EEA residence certificate shall be issued to such members of the family of an EC or EEA national as are themselves EC or EEA nationals, provided that they prove their relationship with an EC or EEA national falling within section 6 of this Order.

8.

(1) An EC/EEA residence certificate shall be issued to:

i)any EC or EEA national who ceases his activity as an employed or self-employed person after having attained the age entitling him to receive national pension as laid down in the National Pension Act, provided that he has pursued his activity as an employed or self-employed person in the territory of Denmark for at least the preceding 12 months and has resided there continuously for the preceding three years;

ii)any EC or EEA national who, as a result of permanent incapacity to work, has to cease his activity as an employed or self-employed person, provided that he has resided continuously in the territory of Denmark for the preceding two years or more. No condition shall be imposed as to the length of residence if such incapacity is the result of an accident at work or an occupational disease entitling him to a lasting benefit which is payable in whole or in part by a Danish authority;

iii)any EC or EEA national who, after three years' permanent residence and activity as an employed or self-employed person in Denmark, pursues an activity as an employed or self-employed person in the territory of another Member State while retaining his residence in the territory of Denmark, whereto he returns daily or at least once a week.

(2) Periods of employment or occupational activity so completed in the territory of another Member State by a person falling within paragraph iii) of subsection (1) hereof shall, for the purposes of entitlement to the rights referred to in paragraphs i) and ii) of subsection (1) hereof, be deemed to have been completed in the territory of Denmark.

(3) In the instances referred to in paragraphs i) and ii) of subsection (1) hereof, the conditions as to the length of residence or the duration of the activity as an employed or self-employed person shall not apply if the spouse of the employed or self-employed person is a Danish national or has lost such nationality by marriage to that person.

(4) An EC or EEA national who has a right of residence under paragraphs i) or ii) of subsection (1) hereof may, within the first 2 years from the date of acquiring the right of residence, leave the territory of Denmark without adversely affecting his right.

9.

An EC/EEA residence certificate shall further be issued to EC or EEA nationals who are members of the family of an EC or EEA national referred to in section 8 of this Order, provided that they reside with him or resided with him at the time of his death.

10.

(1) An EC/EEA residence certificate under section 2(1) of this Order shall be issued to an EC or EEA national, insofar as the applicant and his accompanying family provide proof that they have income either from an invalidity or early retirement pension, old-age benefits or compensation in respect of an accident at work or occupational disease or from resources equivalent to at least the cash benefit payable to a corresponding family which falls within section 37(2) of the Social Assistance Act or clause I of subsection (3), cf. subsection (5), of the said Act.

(2) An EC/EEA residence certificate under section 2(2) of this Order shall be issued to EC or EEA nationals who have been enrolled in Denmark on a recognised course of education qualifying for the taking up or pursuit of a regulated profession and approved as being eligible for support under the Educational State Grant and Loan Scheme Act. Furthermore, the EC or EEA national concerned shall be required to declare that he possesses sufficient resources to support and maintain himself and his family without becoming a burden on the social security system.

(3) For the issue of an EC/EEA residence certificate under subsections (1) and (2) hereof, the applicant may be required to take out a sickness insurance covering the period until the applicant acquires a right to benefit under the National Health Insurance Act, the Hospital Services Act and the Pregnancy Hygiene and Birth Assistance Act.

11.

An EC/EEA residence certificate shall be issued to such members of the family of an EC or EEA national as are themselves EC or EEA nationals, provided they prove their family ties with an EC or EEA national falling within section 10 of this Order.

12.

(1) An EC/EEA residence certificate shall thus be issued to:

i)EC or EEA nationals falling within section 1 of this Order: For at least five years unless a shorter period is applied for.

ii)EC or EEA nationals falling within section 2(1) of this Order: For five years or initially for two years and subsequently for three years unless a shorter period is applied for.

iii)EC or EEA nationals falling within section 2(2) of this Order: For a period corresponding to the period of the course of education on which the residence is based, cf. section 10(2), always provided that a certificate may be issued for a maximum period of one year at a time.

(2) Where the applicant is to take up an activity as an employed person for more than three months but less than one year, the residence certificate shall be issued for the expected period of the course of education. If the actual period of employment with the same employer is longer than one year, a residence certificate shall be issued for five years as from the date of commencement of employment.

(3) Where the applicant is a recipient or provider of services, the residence certificate shall be issued for the expected period of the service.

(4) A residence certificate to such members of the family of an EC or EEA national as are themselves EC or EEA nationals shall be issued to expire at the same date as the residence certificate held by the principal.

13.

(1) After five years' permanent residence a permanent EC/EEA residence certificate shall be issued unless renewal for a shorter period is applied for. This shall not apply to students and their families falling within section 2(2) of this Order.

(2) Renewal of a residence certificate issued for a period of five years under paragraph i) of section 12(1) may be limited to 12 months where the applicant has been involuntarily unemployed for the preceding 12 months. Any further renewal shall in such case be allowed if the conditions set out in section 6 are proved to have been fulfilled anew

14.

(1) A residence permit entitling its holder to pursue an activity as an employed or self-employed person shall be issued to such members of the family of an EC or EEA national as are not themselves EC or EEA nationals, provided that they meet the requirements set out in section 7 or 11 of this Order and that in the home country or in a later country of residence they have lived in joint household with a person falling within section 6 or 10 or are dependent on such a person.

(2) A residence permit shall further be issued to the family members referred to in subsection (1) hereof of an EC or EEA national falling within section 8 of this Order, provided that they reside with him or resided with him at the time of his death.

(3) A residence permit shall be issued and renewed to expire at the same date as the EC/ EEA residence certificate held by the principal. Where the principal has died and the family member referred to in subsection (1) hereof has preserved the right to remain in Denmark, cf. subsection (2) hereof or section 17, the permit shall be issued for the periods set out in sections 12(1) and 13(1) of this Order.

15.

Such members of the family of an EC or EEA national as are under the age of 18 years and permanently reside with the person who has legal custody of them shall not be required to hold a residence certificate or residence permit.

16.

(1) A time-limited EC/EEA residence certificate or a residence permit, cf. section 14, may be withdrawn or its renewal refused where the basis for issuing the certificate or permit no longer exists. A residence certificate or residence permit may not be withdrawn and its renewal may not be refused, however, when its holder no longer pursues an occupational activity, either because he is temporarily incapable of work as a result of illness or accident or because he is involuntarily unemployed, cf. section 13(2) of this Order.

(2) An EC/EEA residence certificate or a residence permit, cf. section 14, may further be withdrawn or its renewal refused where deportation can be effected under part 4 of the Aliens Act.

(3) An EC/EEA residence certificate may not be withdrawn nor may its renewal be refused where a national of a Member State who has pursued an occupational activity in the territory of Denmark wishes to enroll on a course of education qualifying for the taking up or pursuit of a regulated profession and when a connection exists between the previous occupational activity and the course of education concerned.

17.

(1) An EC/EEA residence certificate or a residence permit, cf. section 14, may further be withdrawn or its renewal refused when the person who falls within section 6 of this Order and from whom the holder's right is derived has died. This shall not apply, however, if

i)the deceased, at the time of his death, had resided in the territory of Denmark for two years or more; or

ii)his death resulted from an accident at work or an occupational disease; or

iii)the surviving spouse of the deceased is a Danish national or has lost such nationality by marriage to the deceased.

(2) Section 8(4) of this Order shall apply correspondingly.

18.

In instances other than those set out in section 14(3) of this Order, a residence permit may be withdrawn or its renewal refused when the residence certificate held by the principal expires or is withdrawn or when the renewal of such a certificate is refused.

19.

A residence permit issued to members of the family of a person falling within section 10 of this Order may not be renewed on the death of such a person.

20.

(1) Any decision to issue, prolong, cancel or withdraw an EC/EEA residence certificate or a residence permit under this Order shall be made by the county in the place in Denmark where the applicant lives or stays. If the applicant has no residence nor stay in Denmark, the matter is decided by the county in the place where according to the application filed it must be assumed that the applicant will reside or stay in Denmark. If on the basis of the application filed it cannot be established where the applicant will reside or stay in Denmark, the prefect's office in Copenhagen will decide the matter. In special cases the Directorate of Immigration may authorize another county to decide in the matters mentioned.

(2) Applications for a residence certificate or residence permit or extension thereof shall be filed to the county which must decide the matter pursuant to subsection (1). If the applicant does not reside or stay in Denmark, the application shall be filed to a Danish representation in the applicant's country of origin or in the country where the applicant has had permanent residence during the last six months. The application is sent by the representation to the prefect's office in Copenhagen, which will re-forward the application to the county which must decide the matter pursuant to subsection (1).

(3) An application shall be filed before the expiry of a valid visa or before the date when the alien concerned is required to hold a permit, cf. section 2(1) of the Aliens Act. An application for renewal shall be filed not later than 15 days before the expiry of the permit.

(amended by the Order of the Ministry of the Interior dated 17 August 1995)

20a

(1) The decision by the county pursuant to section 20(1) can be appealed to the Directorate of Immigration.

(2) The decision by the Directorate of Immigration cannot be appealed to any other administrative authority.

(inserted by the Order of the Ministry of the Interior dated 17 August 1995)

20b

The Directorate of Immigration can lay down detailed provisions for and decide on the proceeding of the matters mentioned in section 20(1).
(inserted by the Order of the Ministry of the Interior dated 17 August 1995)

21.

(1) Any decision to issue, renew or refuse an EC/EEA residence certificate or a residence permit shall be made as soon as possible and not later than six months after the date of receipt of the application in question.

(2) Any refusal shall state the reasons on which it is based unless this is contrary to the Order No. 20 of 18 January 1984 on interests of national security.

22.

(1) This Order shall come into force on 1 September 1994.

(2) Order No. 20 of 18 January 1984 on residence in Denmark for aliens falling within the regulations of the European Communities shall be repealed.

The Ministry of the Interior, 22 August 1994.
BIRTE WEISS/ Claes Nilas