Understand the special child rule and other exceptions

[Kim P. Nyberg]

Understand the special child rule and other exceptions

Denmark has signed several conventions that mean that not all requirements for family reunification can be upheld in all circumstances. There are situations where some of the rules are waived. We will look at these now.

The most well-known is the ‘special child rule’. A ‘special child’ is a minor child from a previous relationship whose other parent is Danish/has legal residence in Denmark, and with whom both parents have regular contact.
If you have such a child/children under the age of 18, and both biological/adoptive parents have regular contact with the child or children, you are exempt from a number of requirements. The comprehensive list of exemptions includes all the financial requirements (bank guarantee, application fees, and the ban against receiving social benefits), the housing requirement, the integration requirement, and the requirements for the A1 and A2 language tests.
In my counselling work, I have often come across people who have simply been blinded by all the normal requirements without realising the exceptions which the special child rule gives rise to, and therefore are still strongly considering realising their family reunification via a temporary move to Sweden or Germany. It is a bad idea to use this method for two reasons: Firstly, using it will in most cases affect your or the other parent’s contact with your special children, and secondly, using the EU rules in this case is completely unnecessary. If you fulfil the special child rule, you are far better off with the Danish rules than you will ever be with the EU rules. But you should also realise that the moment the child turns 18 (if you have several separate children, it is the youngest child that is considered here), all normal requirements will in principle apply to you. However, there may be situations where they do not. For example, the integration requirement and the bank guarantee requirement will not be imposed if your current spouse has been here for a number of years, and if your spouse has obtained a permanent residence permit in the meantime, the other requirements will also disappear.

Your or your partner’s sexual orientation or religious orientation may also have an impact on the case. If you apply, but are refused family reunification here in Denmark, the Immigration Service will always refer you to live out your family life in your spouse's home country. However, that may be impossible because people who are not heterosexual or have different religious beliefs than the majority in your spouse's home country are being persecuted to the point of being in life danger, or it may be that the country has issued an outright travel ban for you for the reasons mentioned. In such circumstances your partner can still be granted residence in this country. In such a situation, several requirements will also be waived.

If you are so disabled or ill that a move to your spouse's home country would be detrimental to your health because you cannot get the necessary medical help there, you are also exempt from some of the normal requirements. Previously, the rule in this area was that if you can get the help in that country, there is nothing to stop you from moving there. However, a court judgement made it clear that it is not enough for the help to be hypothetically present. It must also be realistic and within a reasonable physical distance. Thus, if you would need to travel a full day for a bottle of vital pills it would be considered disproportionate. This could result in a residence permit in this country.

It is up to you as a couple to prove this to the Danish Immigration Service. If you fail to do so, your application may be rejected (FA1). The Danish Immigration Service does not have to prove anything. But they will, of course, verify your claim. They will do this via the documents you send them.