Family reunification for Danish nationals under EU law

The EU rules on freedom of movement do not apply to purely internal matters. This means that family members of Danish nationals who live in Denmark and have not exercised the right of free movement in another EU/EEA Member State or Switzerland cannot obtain a residence card for Denmark under the EU rules.

However, the case-law of the European Court of Justice shows that a Danish national will be covered by the EU rules in his/her own country in certain cases and will be eligible for family reunification on that basis.

In certain cases, a registration certificate or residence card can therefore be issued to a foreigner who is a family member of a Danish national applying the EU rules on free movement of workers, self-employed persons, service providers, retired workers, retired self-employed persons, retired service providers, seconded persons, students and self-supporting persons.

The case-law of the European Court of Justice shows that exercise of the right of free movement under EU law for the purpose of obtaining family reunification cannot be considered a circumvention of the Danish immigration legislation. What is crucial is that it is a genuine relationship and/or a genuine marriage/registered partnership/regular cohabitation and that the Union citizen/EEA national has exercised his/her right of free movement in another EU/EEA Member State in reality (read more about the Akrich judgment here).

Family members of Danish nationals who have resided in another EU/EEA Member State or Switzerland may apply for a registration certificate, if the relevant family member is a Union citizen/an EEA national, or a residence card, if the family member is a third-country national.

There is no fee to be paid when applying for family reunification under the EU regulations.

At this page you will learn more about the conditions that applicants must satisfy to achieve family reunification under EU law. You can also read more about the requirements no longer made as a consequence of the case-law of the European Court of Justice.

1. Free movement

The Danish national must have exercised his/her right of free movement in another EU/EEA Member State or Switzerland.

There is no minimum requirement for the length of the Danish national's residence in the other EU/EEA Member State or Switzerland, but it is a precondition that s/he has genuinely exercised the right of residence on the basis of the EU rules.

The Danish national must have resided in another EU/EEA Member State or Switzerland as either:

a worker
a self-employed person
a service provider
a retired worker
a retired self-employed person
a retired service provider
a seconded person
a student at an educational institution accredited or financed by public authorities, where s/he was able to support him/herself during the period of residence, or
a self-supporting person, i.e. the person must dispose of such sufficient income or means so that s/he is presumed not to become a burden on the public authorities

When is a Union citizen/an EEA national deemed to be a worker under EU law?

It depends on a concrete assessment of the specific circumstances of each case whether a Union citizen/an EEA national, including a Danish national, is deemed to be a worker under EU law. What is crucial is whether a person has had genuine and effective employment. Emphasis will also be laid on whether the person performs services for and under the direction of another person in which s/he receives remuneration. Employment appearing to be a mere marginal supplement is excluded from the scope of application of the concept. It is therefore normally a condition that the relevant employment amounts at least 10-12 hours a week.

According to the jurisprudence of the European Court of Justice it is normally a requirement that the applicant has been employed for a minimum of 10-12 hours per week, see judgment Kempf (C-139/85) and Megner and Scheffel (C-444/93).

In the case of Kempf the employment in question was 12 hours per week, and in the case of Megner and Scheffel the European Court of Justice has ruled that paid employment where the working hours normally do not exceed 18, 12 or even 10 hours per week do not exclude the person to be regarded as a worker under the EU legislation.

In the judgment of Genc (C-14/09) the European Court of Justice established criteria for the purposes of the concrete and individual assessment of whether an employment for less than 10-12 hours per week is genuine and effective. These criteria may be the entitlement to paid leave, remuneration during illness, the duration of the employment, and whether a collective agreement applies to the employment. The employment in the mentioned case was 5,5 hours per week.

The European Court of Justice did not consider whether a weekly employment of 5,5 hours was sufficient in order to be considered as a worker under EU law, or whether the employment was of a merely marginal nature. It was left to the member state to undertake this evaluation.

It is not possible to fix a lower limit for the duration of the employment for assessment purposes.

The European Court of Justice ruled in Franca Ninni-Orasche (C-413/01) that a fixed-term contract of employment for ten weeks was sufficient for the applicant to be a worker under EU law. The case concerned educational grants and led to the issue of guidelines to the local authorities about when a person is deemed to be a worker. The guidelines concern employment relationships for which a short-term contract has been concluded in advance. The guidelines fix a minimum period of ten weeks for such situations. However, it should be emphasised that a concrete assessment must be made in each case.

Accordingly, a concrete and individual assessment must be made in each case, and the ten-week period fixed by the Court in the Ninni-Orasche judgment is thus only to be seen as an example of a situation in which ten weeks of employment were deemed to suffice.

A Union citizen/an EEA national who has permanent employment, but ceases working after less than ten weeks, may satisfy the conditions for being a worker under EU law in certain circumstances, while another person having worked for more than ten weeks may not always satisfy the conditions, e.g. due to lack of genuine work or for other reasons.

Is a Danish national working in another EU/EEA Member State or Switzerland, but having retained his/her residence in Denmark, entitled to family reunification under EU law?

A Danish national working in another EU Member State, but having retained his/her residence in Denmark, does not fall within the rules on freedom of movement and is accordingly not eligible for family reunification under EU law.

2. Genuine and effective residence

The Danish national must have established genuine and effective residence in another EU/EEA Member State or Switzerland.

One condition that must be satisfied before a family member of a Danish national who has exercised his/her right of free movement in another EU/EEA Member State is entitled to residence under the EU rules is that the Danish national has had genuine and effective residence in the EU/EEA Member State in which s/he has worked or resided for other purposes.

The condition that a Danish national must have had genuine and effective residence in another EU/EEA Member State implies that it must be a genuine and effective move to that State. The move must be real, and a short stay at, for example, a hotel room is not sufficient.

Generally, a Danish national having stayed for a short period in a sublet room or at a c/o address with relatives or acquaintances does not satisfy the condition of having established genuine and effective residence in another EU/EEA Member State.

By contrast, a Danish national having resided for a long period in a rented flat on the basis of an indeterminate tenancy agreement or in a dwelling bought by the relevant person immediately satisfies the condition of having established genuine and effective residence.

However, a concrete and individual assessment of all specific circumstances of the case will have to be made, including the above circumstances.

On the basis of the information in the application form and the enclosed documents, the Danish Immigration Service will assess whether the condition of genuine and effective residence is deemed to be satisfied.

If the Danish Immigration Service assesses on the basis of the information received that it is questionable whether the Danish national has had genuine and effective residence in another EU/EEA Member State, further evidence of such residence will be requested.

Examples of documents that a Danish national may submit as proof of his/her genuine and effective residence in another EU Member State are:

proof of address, including a transcript from the national register that the applicant's residence has been registered
a conveyance for property, a tenancy agreement or receipts for payment of rent
evidence that the Danish national moved from his/her former residence, including evidence that s/he has terminated his/her tenancy agreement, sold his/her property or sublet his/her home for a certain period
enrolment of children at school, kindergarten, etc.
proof of a national health insurance number or a special health insurance

This not an exhaustive list of documents that a Danish national may submit to prove his/her genuine and effective residence in another EU/EEA Member State. However, family reunification cannot be refused merely with reference to the fact that a Danish national has not been able to submit one or more of the above documents.

In all circumstances, the Danish Immigration Service will make a concrete assessment of the aggregate circumstances of the case.

In connection with the application, a Danish national applying for family reunification in Denmark under EU law must solemnly declare that s/he has had genuine and effective residence in another EU/EEA Member State. The declaration forms part of the application form.

3. Which family members are eligible for family reunification with a Danish national under EU law?

The following family members fall within the scope of eligibility for family reunification with a Danish national who has exercised his/her right of free movement in another EU/EEA Member State:

Spouse
Registered partner
Regular cohabitant over 18 years of age
Direct descendants under 21 years of age (i.e. children, grandchildren, etc.) of the Danish national or of his/her spouse/registered partner/regular cohabitant
Direct descendants over 21 years of age (i.e. children, grandchildren, etc.) of the Danish national or of his/her spouse/registered partner/regular cohabitant if the descendants are dependent on the Danish national or on his/her spouse/registered partner/regular cohabitant
Relatives in the ascending line (i.e. parents, grandparents, etc.) of the Danish national or of his/her spouse/registered partner/regular cohabitant if the relatives are dependent on the Danish national or on his/her spouse/registered partner/regular cohabitant
Other family members (e.g. siblings, cousins, etc.) if they are dependent on the Danish national or are living under his/her roof in the country they come from
Other family members (e.g. siblings, cousins, etc.) if it is strictly required for serious health reasons that the Danish national provides personal care of the family members

Paragraph 6 below provides more information on the conditions of support.

4. Genuine family relationship and/or genuine marriage/registered partnership/regular cohabitation

A genuine family relationship and/or a genuine marriage/registered partnership/regular cohabitation must exist between the Danish national and the family member.

In connection with an application for family reunification, evidence must be submitted to prove that family ties were established between the Danish national and the family member before the Danish national returned to Denmark, for example a marriage certificate (for spouses) or a certificate of baptism (for children).

If a family member to a Danish national who has exercised his or her freedom of movement in another EU/EEA country does not apply for family reunification under the EU law until later than at the time of the return to Denmark, a concrete assessment will be made of whether the family members’ application has been submitted in natural continuation of the return to Denmark of the Danish national. Such assessment will lay emphasis on the reasons for the late application, including whether the family member postponed the application for special reasons of work or education, as well as the length of the delay. A memorandum on the temporal correlation of the return of the Danish national to Denmark and the application of residence as a family member to the Danish national under EU law has been produced, but is only available in Danish.

It is also a requirement that the Danish national and the family member/applicant have genuinely cohabited in the EU/EEA Member State in which the Danish national has exercised his/her right of free movement. The requirement implies that the family member/applicant has had a residence in the EU/EEA Member State in which the Danish national has exercised his/her right of free movement. It should be noted that it is a condition that the family member's/applicant's stay in the EU/EEA Member State take place during the period in which the Danish national exercises his/her right of free movement. There is no requirement that the family member's/applicant's stay in the EU/EEA Member State was lawful.

The Danish Immigration Service will also make a concrete assessment of whether the EU rules have been abused, including whether the sole purpose of contracting the marriage/registered partnership or establishing the cohabitation was to obtain an independent basis of residence for the family member.

Accordingly, a Danish national and his/her spouse/registered partner/permanent cohabitant applying for family reunification in Denmark under EU law must solemnly declare in connection with the application that the purpose of contracting the marriage/registered partnership or establishing the cohabitation was not solely to obtain an independent basis of residence for the family member. The declaration forms part of the application form.

If the couple are married or registered partners, the marriage/registered partnership must still be valid when the couple enter Denmark. If the couple are permanent cohabitants, cohabitation must still exist when the couple enter Denmark and during their continued residence in Denmark.

5. Economic activity upon return

As a consequence of the Eind judgment, a Danish national who has exercised his/her right of free movement in another EU/EEA Member State as:

a worker
a self-employed person
a service provider
a retired worker
a retired self-employed person
a retired service provider

need not be economically active to obtain family reunification with his/her spouse/registered partner/permanent cohabitant and/or his/her or the spouse's children under 21 years of age upon his/her return to Denmark.

Accordingly, it follows from the Eind judgment that:

"When a worker returns to the Member State of which he is a national, after being gainfully employed in another Member State, a third-country national who is a member of his family has a right under Article 10(1)(a) of Regulation No. 1612/68 as amended by Regulation No. 2434/92, which applies by analogy, to reside in the Member State of which the worker is a national, even where that worker does not carry on any effective and genuine economic activities."

Paragraph 6 below provides more information on the condition of support.

6. Support of yourself and your family

The condition of support differs depending on the basis of residence of the Danish national in the EU/EEA Member State in which the relevant person has exercised his/her right of free movement, and depending on the status of the family members included in the application for family reunification.

A Danish national applying for family reunification in Denmark under EU law after having exercised his/her freedom of movement in another EU/EEA Member State as a worker, self-employed person or service provider (economically active person) or as a retired worker, self-employed person or service provider (retired economically active person) is not required to prove that s/he can support his/her spouse/registered partner/permanent cohabitant and children under 21 years of age and the spouse's children under 21 years of age. This applies regardless of whether the relevant person receives social assistance or other maintenance in Denmark.

However, a Danish national applying for family reunification with family members other than his/her spouse/registered partner/permanent cohabitant or children under 21 years of age or the spouse's/registered partner's/permanent cohabitant's children under 21 years of age after having exercised his/her freedom of movement in another EU/EEA Member State as an economically active or retired economically active person and having returned to Denmark may be required to prove that s/he is able to support those family members.

A Danish national applying for family reunification upon his/her return to Denmark after having exercised his/her right of free movement in another EU/EEA Member State as a student may also be required to declare or by such similar mean as they may choose that s/he has sufficient means for him/herself and all his/her family members, including his/her spouse/registered partner/permanent cohabitant and children under 21 years of age and the spouse's/registered partner's/permanent cohabitant's children under 21 years of age. Is the family member a spouse/registered partner/permanent cohabitant, a child under 21 years of age or the spouse's/registered partner's/permanent cohabitant's child under 21 years of age the Union citizen/EEA national need only declaring that s/he has sufficient means.

Moreover, a Danish national who has exercised his/her freedom of movement in another EU/EEA Member State as a self-supporting person may be required to prove that s/he has sufficient means for him/herself and all his/her family members, including his/her spouse/registered partner/permanent cohabitant and children under 21 years of age and the spouse's/registered partner's/permanent cohabitant's children under 21 years of age.

The Danish Immigration Service can give you more information about which family members may be eligible for a registration certificate or residence card and the conditions that must be satisfied.

7. Family members' previous lawful residence in another EU/EEA Member State

As a consequence of the Metock judgment, a family member, including a foreign spouse/registered partner/permanent cohabitant, is not required to have had previous lawful residence in the EU/EEA Member State or Switzerland in which the Danish national has exercised his/her right of residence so far.

Accordingly, it follows from the Metock judgment that:

"Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States precludes legislation of a Member State which requires a national of a non-member country who is the spouse of a Union citizen residing in that Member State but not possessing its nationality to have previously been lawfully resident in another Member State before arriving in the host Member State, in order to benefit from the provisions of that directive."

However, it is a condition that the Danish national and the family member/applicant have in fact cohabited in the EU/EEA Member State in which the Danish national has exercised his/her right of free movement.

Accordingly, it follows from paras. 35-36 of the Eind judgment that:

"A national of a Member State could be deterred from leaving that Member State in order to pursue gainful employment in the territory of another Member State if he does not have the certainty of being able to return to his Member State of origin, irrespective of whether he is going to engage in economic activity in the latter State.

That deterrent effect would also derive simply from the prospect, for that same national, of not being able, on returning to his Member State of origin, to continue living together with close relatives, a way of life which may have come into being in the host Member State as a result of marriage or family reunification."

8. Danish nationals providing cross-border services

In exceptional cases, Danish nationals residing in Denmark and providing cross-border services to other EU/EEA Member States are entitled to family reunification under EU law.

In the Carpenter judgment, the European Court of Justice ruled that a Union citizen/an EEA national residing in his/her country of origin, but providing services to customers in other EU/EEA Member States, is entitled to family reunification under EU law in that country under highly exceptional circumstances.

The judgment is based on very specific circumstances that only apply when the concrete circumstances correspond to the actual circumstances cited in the judgment.

The Carpenter case concerned the British national Mr Carpenter, who provided cross-border services to customers established in other EU Member States and in the United Kingdom. Mr Carpenter's business was established in the UK, and he travelled to other EU Member States for the purpose of his business. The UK Secretary of State made a deportation order against Mr Carpenter's spouse, who is a national of the Philippines, but the European Court of Justice determined that, by virtue of the provisions of the EC Treaty relating to the freedom to provide services, she had a derived right of residence in the UK.

If a Danish national residing in Denmark and providing cross-border services wants to obtain a registration certificate/residence card for his/her foreign spouse/registered partner/permanent cohabitant or for their children under 21 years of age, the following conditions must be satisfied:

The Danish national's spouse and children under 21 years of age (third-country nationals) must have entered Denmark lawfully.
The Danish national must reside in Denmark and provide cross-border services to another EU/EEA Member State or Switzerland from Denmark.
The Danish national must make business trips to the other EU Member States to which services are provided.
The Danish national's provision of services must constitute a large proportion of the relevant person's business activities, both in Denmark and in other EU Member States.
A marriage/registered partnership may not be contracted, nor may cohabitation be established solely for the purpose of achieving an independent basis of residence for the applicant. If the couple are married or are registered partners, the marriage/registered partnership must still be valid when the foreign spouse/registered partner enters Denmark. If the couple are permanent cohabitants, cohabitation must still exist when the cohabitant enters Denmark and during his/her continued residence in Denmark.
The couple must have established a genuine family life in Denmark.

Evidence that the above conditions are satisfied may be requested.

9. Permanent residence

As a family member to a Danish national comprised by the EU rules on free movement, and with a right to residence according to the EU-executive order, you have a right to permanent residence in Denmark, if you have lawfully resided in Denmark for a continuous period of five years. Further details on the right to permanent residence in accordance with the Free movement directive has been described in the guidance note, which is only available in the Danish language version: "notat om tidsbegrænset ophold efter opholdsdirektivet"