This page answers your questions about the basis for residence arising from intimate partner violence
I reunited with my spouse here in Denmark, but now I wish to get a divorce. How do I retain my residence permit in Denmark?
On 21 February 2019, the Danish Government adopted a bill concerning the so-called ‘paradigm shift’ in immigration legislation (Act No. 174 of 27 February 2019), entailing several amendments of the Aliens Act, etc.
Insofar as refugees and reunited family members are concerned, it means that from now on, the residence permit of reunited family members will usually be withdrawn or will not be extended, when this is possible, unless this is in direct contravention of Denmark’s international obligations.
It is not yet possible to say how this will specifically impact the legal status of aliens who have reunited with their spouses and then subsequently been subjected to violence.
⇒Termination of cohabitation due to violence: Section 9(1)(i) (cf. Section 19(7) of the Aliens Act.
If someone from abroad reunites with a family member/spouse in Denmark, the residence permit must usually be withdrawn if marital cohabitation with one’s spouse is terminated.
Whenever the Danish Immigration Service processes cases involving the confiscation of the residence permit, the Service must take account of whether the confiscation will be particularly burdensome, cf. Section 26 of the Aliens Act.
In making this assessment, a separate provision in Section 19(7) of the Aliens Act applies to victims of violence who, due to the violence, have terminated cohabitation with the spouse with whom he/she has been reunited.
Section 19(7) of the Aliens Act
“In making a decision to confiscate a residence permit issued pursuant to Sections 9(1)(i), 9(c)(1) or 9(q)(ii), special consideration shall be given to whether the basis for residence no longer exists as a result of a termination of cohabitation caused by the alien, or his/her children, having been subjected to assault, abuse or other injury, etc., here in Denmark. This shall apply regardless of the alien’s length of stay in Denmark.”
This is contingent on the violence being physical or psychological and that the violence can be documented. In addition, you must be able to prove that the termination of cohabitation is due to violence. The documentation may exist as a police report, A&E declaration or a medical certificate, for instance. A statement issued by a crisis shelter, if relevant, is usually not enough in itself.
The grounds for terminating the cohabitation will be included in an overall assessment of whether the residence permit should be upheld pursuant to Section 26 of the Aliens Act. In other words, even if it is provable that there was violence in the marriage and that this violence is the direct cause of the termination of cohabitation, this does not guarantee that the residence permit will be upheld.
The rule applies regardless of how long the person concerned has lived in Denmark.
⇒Overall affiliation with Denmark: Section 26 of the Danish Immigration Act
If the termination of cohabitation is not due to violence, or if the violence is not sufficiently documented, you may apply for a residence permit on the basis of your overall affiliation with Denmark (Section 26 of the Aliens Act). The Immigration Service makes the combined actual assessment based on, among other factors, the language tests you have passed, whether you are employed and/or studying, whether you are active in associations, or whether you have otherwise let yourself be integrated into Denmark.
⇒Reuniting with other family members: Section 9(c)(1) of the Aliens Act
In addition, there is a possibility that you can apply for reunification with other family members, such as your children, residing in Denmark. For instance, you can apply for reunification with your children who have already been reunited with their father who lives here in Denmark. This is often referred to as “interlinked applications”.
In this respect, you should note that your residence permit, if it is issued under this provision, will be contingent on your ex-spouse continuing to live in Denmark. In the event that he/she decides to leave Denmark, a different basis for residence must be secured for you and your children if you want to keep living in Denmark. This explains why the procedure is primarily used in cases where a residence permit cannot be issued on a different basis.
⇒Procedural residence
It is important to note that as long as you have a residence-permit application pending with the Immigration Service or the Agency for International Recruitment and Integration (SIRI), you are reasonably likely to have legal residence in the form of a so-called procedural residence permit. As long as you are legally residing in Denmark, you have the right to assistance pursuant to the Service Act and, thus, the right to remain registered at a crisis shelter or men’s shelter, provided that you meet the general criteria of the Service Act. The letter acknowledging your application from the relevant authority will state whether you have a procedural residence permit.
EU RESIDENCE
My residence permit was issued pursuant to EU regulations on an accompanying family member, but I want to get a divorce. How do I retain my right to reside in Denmark?
If you have a residence permit based on EU regulations on an accompanying family member, the decisive factor is whether you yourself are an EU citizen or a third-country national. If you are an EU citizen, you retain the right to reside in other EU countries, due to the freedom to move within the EU for Union citizens.
If you are a third-country national, a distinction will be made between whether you have continuously resided in Denmark for more than or less than five (5) years. If you have resided in Denmark for more than five years, you will continue to have a residence permit. If you have resided in Denmark for less than five years, you must meet a number of conditions to get a residence permit.
if you need advice about your options for continuing to reside in Denmark after the termination of cohabitation, including as this relates to public assistance, call Lev Uden Vold’s legal advisory services on tel. +45 3118 4441.