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Work permits: What is Denmark’s ‘formodnings’ rule and how does it affect applications?

Applications for work permits in Denmark can be rejected on the basis of authorities deeming the salary offered for the position to be too high to be believable.

Work permits: What is Denmark’s ‘formodnings’ rule and how does it affect applications?
People who work in kitchens are among those most likely to be affected by Denmark's "formodnings" rule on work permits. Photo by Daniel Nijland on Unsplash

Denmark has a number of different schemes under which individuals and employees can apply for work permits to be granted.

Some of these schemes – notably the Pay Limit Scheme – require a minimum salary as part of the criteria for the work permit. The minimum salary was reduced from 448,000 kroner per year to 375,000 kroner per year in a rule change earlier this year.

The Pay Limit scheme allows work permits to be granted to applicants who have been offered a salary above a government-set amount by a Danish employer.

However, even if a company agrees to pay an employee the minimum salary required under the work permit scheme, the application can still be rejected by authorities based on a rule known as formodningsreglen, which loosely translates to “rule of suspicion” or “rule of doubt”.

In short, if authorities think the salary offered for a certain job in a work permit application is unrealistically high, they can rejected the application based on a suspicion that a false salary is being declared in order to secure the permit.

READ ALSO: How have work permit rules been changed in Denmark?

This conclusion is reached by the work permit agency on the basis of formodning, which can translate to “presumption”, “assumption” or “guess”.

As such, the case officer processing the application can deem the salary being offered, even though it meets the minimum pay criteria for the Pay Limit Scheme, to be unrealistically high based on the position in question, the applicant’s qualifications and other factors considered relevant.

Earlier this year, the Danish Agency for International Recruitment and Integration (SIRI), which is responsible for processing work permits, told The Local in a written statement that it assesses in Pay Limit Scheme applications “whether there is a certain suspicion that it is not a case of genuine employment or that the purpose is solely to obtain residence in this country which the alien would otherwise not be able to obtain.”

“In such cases, the application is rejected,” the agency wrote.

The “formodningsafslag” (“suspicion rejection”) law, introduced in 2021, was introduced to prevent abuse of the Pay Limit Scheme, particularly in cases where restaurants hired Chinese chefs, SIRI said.

The law allows SIRI to reject applications that fulfil the regular criteria related to salary and employment terms “if there is a certain suspicion that the factual employment circumstances do not fit with those outlined in the application,” it continued.

These can include a “certain suspicion” (vis formodning) related to the applicant’s education and employment history, previous applications for Danish residence permits and the salaries considered to be normal for the business and sector in question, it said.

“We always conduct a concrete and individual assessment of the relevant information of the case,” SIRI wrote.

“In the legal descriptions there is no suggestion that a labour shortage or domestic difficulties acquiring in-demand labour can be seen as a criteria in the assessment of whether a job offer is genuine,” it also noted.

Reports in Danish-language media, and in The Local, have in the past described individual cases in which a work permit application has been rejected on this basis even though the employer and applicant have offered evidence that the salary is realistic and shown that the job and employment are genuine.

The Moderate Party, a partner in the coalition government, criticised the rule in July this year, citing cases in which foreign chefs could not be hired because their salaries, required to live up to the Pay Limit Scheme, result in rejection of their work permit applications under the formodningsregel, creating a Catch-22 situation.

The Social Democrats, the senior party in the coalition, continues to back the rule.

“It’s important that the authorities can put the brakes on in cases where they suspect that the employment is not genuine,” the party’s employment spokesperson Jens Joel told media TV2 Østjylland in July.

The trade union for the Danish hospitality industry Horesta, says it wants the rule scrapped.

“Our members receive rejections to their applications because someone, for example, has looked at the prices of a starter in relation to the salary the chef gets. We think that is, quite simply, absurd,” Horesta CEO Jeppe Møller-Herskind told TV2 Østjylland.

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WORK PERMITS

‘Tinder for jobs’: EU’s new job scheme for non-EU workers moves step closer

The creation of a common EU Talent Pool platform, in which non-EU nationals can register their profiles and find jobs across the 27 member states, has moved a step closer to reality.

'Tinder for jobs': EU's new job scheme for non-EU workers moves step closer

At a meeting of the Justice and Home Affairs Council in Luxembourg, the EU Council, which includes representatives of each of the 27 member states, agreed a joint position on the proposal, referred to as “Tinder for jobs” by EU Home Affairs Commissioner Ylva Johansson. 

The Council will now begin negotiating with the European Parliament to agree on the final legislative text on the proposal, which is part of the EU’s broader skills and talent mobility package. 

What’s the scheme?

“This will not replace anything but it will be an additional tool to make recruitment from outside the EU easier,” Johannes Kleis, a press officer at the European Council, told The Local. “It should help to overcome some barriers that employers might find if they look for staff outside the EU, and this portal will be an easier entry point for third country jobseekers.” 

In a press release announcing the agreement, the Council said it hoped to reconcile principles of fair recruitment with a secure and comprehensive migration system while also “reinforcing the position of the European Union in the global race for talent”. 

READ ALSO: The new scheme to help non-EU nationals find jobs in Europe

The EU’s Home Affairs Commission Ylva Johansson hsa described the Talent Portal as ‘Tinder for jobs’. Photo: Simon Wohlfahrt/AFP

The idea is to set up an EU-wide online platform where jobseekers from outside the EU can set up profiles detailing their skills, qualifications, work experience and which languages they speak. Employers from all participating member states will then be able to post up jobs to the platform. 

Only job vacancies involving skills or professions where member states or the EU as a whole have declared a labour shortage will be listed on the platform. 

The Talent Pool will be designed to help EU employers overcoming some of the challenges of recruiting internationally by helping ensure the “accuracy, quality and comparability” of the foreign applicants’ qualifications and skills. It will also help applicants overcome some of their current difficulties in “accessing and understanding information about recruitment processes” as well as reducing costs. 

The Talent Pool is not intended to set up a common work permit system, with anyone who gets a job through the platform still having to apply for a regular work permit in the country where they find a job. 

The Council has added several new proposals to the system put forward by the European Commission in November, setting up a withdrawal procedure through which member states can leave the Talent Pool after giving six month’s notice.

The Council also wants to empower member states to be able to decide whether individual employers can post up vacancies, whether private employment agencies can do so, or whether only state-run national employment agencies can do so.   

What happens next?

“We’re at the beginning,” Kleis said. “The European Parliament and the Council will now have to sit together to agree on the legal text, and that will happen after the summer. From the Council side, this is the first step but the legislation has yet to be agreed on. So there a lot more hoops to jump through.”  

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