New amendments to the Danish Immigration Act entail stricter requirements for work and residence permits

Requirement for payment of salary to a Danish bank account

Before the amendments, the requirement for salary to be paid to a Danish bank account only applied to applicants under the Pay Limit Scheme and the Fast Track Scheme.

With the adoption of the amendments, this requirement has now become stricter to the effect that salary payments relating to applications after 1 January 2021 must be made to a Danish bank account for the following schemes:

• The Fast Track Scheme
• The Pay Limit Scheme
• The Positive List for the Highly Educated 
• The Positive List for Skilled Work
• Researchers
• Special Individual Qualifications
• Herdsmen and Farm Managers
• Labour Market Attachment
• Job change within the professional field forming the basis for the residence permit as a consequence of the labour market attachment
• The Intern Scheme

Furthermore, the requirement for salary payment to a Danish bank account has become stricter to the effect that not only payment of the minimum salary amount (if relevant), but all payments of cash amounts must be made to a Danish bank account.

In addition, and following the adoption of the amendments, only the salary amount paid out in cash is included in the calculation of the salary level when the Danish Agency for International Recruitment and Integration (“SIRI”) must assess whether the employment may be considered to be in accordance with Danish standards for salary and terms of employment. This tightens the previous practice under the fast track scheme and the pay limit scheme under which the value of e.g. a paid company car, paid internet access, per diem allowances for food and paid accommodation were included in this assessment. 

When must the Danish bank account be opened?

The Danish bank account must be opened within 90 days from the date on which the work and residence permit was granted to the applicant. If the applicant travels to Denmark after the notification of the work and residence permit, the Danish bank account must be opened within 90 days after the date of entry. 

If the applicant already has been granted another residence permit of at least 3 months at the time of the filing of the application, the 90-day time limit will, however, not apply. 

Requirement for special work permit for accompanying family members

In case an accompanying family member is to work in the business entity to which the work and residence permit of the “key applicant” relate or in close cooperation with this business entity, the accompanying family member must apply for a special work permit.

This requirement applies to all applications – new ones and extensions – for work and residence permits as an accompanying family member to an employee legally in the country based on the following schemes:

• The Fast Track Scheme
• The Pay Limit Scheme
• The Positive List for the Highly Educated 
• The Positive List for Skilled Work 
• Trainees
• Special Individual Qualifications
• Employees on Drilling Vessels or the like 
• Herdsmen and Farm Managers
• Labour Market Attachment
• Job change within the professional field forming the basis for the residence permit as a consequence of the labour market attachment

Any such separate application for a work permit along with a copy of the employment contract must be filed with SIRI. In that connection it is also a requirement that the employment is for at least 30 hours per week and that the salary and employment terms otherwise are in line with regular salary and employment terms for the relevant business field. 

A separate application for a work permit is exempted from fees, and no specific biometrics must be recorded in connection with the application. 

Control measures

Apart from the above-mentioned tightening within the immigration area, the adoption of the law amendments is accompanied by increased options for SIRI to perform inspection calls without prior notice. In connection with the inspection calls, the employer and the third country citizen will be obligated to answer the questions from SIRI. Furthermore, SIRI may demand that the employer keeps a daily digital log for a period of 12 months, during which period the employer must register the information of all persons expected to perform duties in the business entity, including name personal identity number, working hours, salary, etc.  

Any such order may be e.g. be issued on the suspicion of:

• unlawful unpaid extra hours
• differences between actual working hours and the number of working hours reported to the Danish salary reporting system (E-indkomst) 
• payment of a higher salary than what is usual for persons with a similar type of position, or
• no preparation of a definite plan specifying when the employees are on duty and if the employer may not present such a duty roster

Bird & Bird’s remarks:

The purpose of the amendments to the Immigration Act is to prevent social dumping in connection with employment of foreign labour, and this is carried out in practice by demanding compliance with even stricter formal requirements for both the employer and the employee. Furthermore, it has become easier for SIRI to monitor whether the conditions for obtaining work and residence permits have been fulfilled – and keeps being fulfilled.

Only applications filed after 1 January 2021 are covered by the new and stricter rules. Such applications will have to meet stricter compliance requirements of which both the employer and the employee must be aware when an application is filed.

Bird & Bird has vast experience in assisting employers to apply for work and residence permits on behalf of third country citizens and will be happy to help you with the application process and questions related thereto.

[1] L 92 A