Family reunification - EU law or Danish law?

[mh1]

Well, you may not have to go overseas to solve the problem.

If you and your husband can move in with your father-in-law tomorrow, or very soon, you can most likely apply for a EU-residence card and obtain it.

However, it depends on you husbands income - is he receiving pension? If so, he can bring it with him to Sweden and there should be no problems.

In this best-case scenario you will have a right to accompany your EU-spouse, and your application for an EU-residence card can therefore be filed in spite of your (probably) having overstayed in Schengen (more than 90 days).

If, however, you husband is living on sick-pay it is another matter. Could you add the info about your husbands income? AND you father-in-laws situation, as he might just be the life-line.

[Melissa]

My husband's income is a disability pension and NOT sick-pay. My father-in-law owns his own home outright and has three bedrooms and a basement. So there is room for us. His pension will follow him to Sweden, but some of his other benefits will. So while money is not our chief concern at this time, it is a concern.

My father-in-law is coming for a brief visit today, actually. There would be no problem with him drawing up a lease for us (I assume I need to be on it?) today. We would have to give up our current apartment right quick, if I am not mistaken, and put what doesn't travel into storage... as well as find medical support in Sweden that he can access within 24 hours of our arrival, as that is of critical importance.

Assuming all of this were to happen in a great hurry... I still don't understand how my questionable legal statis is resolved.

If I have overstayed, and the debate rages on on that point, then I am illegal not only in Denmark, but all of Schengen. How can I move to Sweden, stay for a few months, and then apply... without jeopardizing my long-term ability to stay? Denmark says I may be expelled, and banned for at least two years.

[fundiver199]

Dear Melissa

The right to free movement in the EU takes precedence over the schengen visa rules. So even though you will technically enter Sweden illegal, if you go there tomorrow, since you have now indisbutably been in Schengen for more than 90 days, nomather how it is calculated, this does not affect your husbands right to free movement, and therefore also not your right.

Technically Sweden could perhaps give you a fine for entering illegally, but they can not refuse you the right to stay there, or deny to issue a residence card within 6 month. And in ÆUG we have never heard about Swedish authorities making a big deal out of an expired Schengen visa or a visa free person having exceded 90 days, when he/she applied for residence card.

The situation would be exactly the same, if your husband was a swedish citizen living in Denmark. Then authorities could also mourn all, they wanted, about you having stayed here for 102 days rather than 90, which ever way they want to count those days. But they would still have to issue you a residence card under EU-law, if you applied for it, and at most they could give you a fine for your “crime”.

If you decide to transfer to Sweden, I really cant blame you or argue with that. However I think you could also choose to give Udlændingenævnet just a few days or maybe weeks to loke at the complaint, I know you have filed, or is going to file.

Your experience is very regrettable, but in my opinion it is nothing more or less than some bureaucrats at Udlændingestyrelsen, who are not very competent at their work. And these sort of problems you can experience in all countries in my opinion, not just in Denmark.

[mh1]

I think that your husband's pension will be sufficient for him to be a 'person with sufficient means'.

This - being a 'person with sufficient means' - means that it will be wise for you to stay in Sweden a bit longer than the minimum app. 3 months, and apply for a Danish residence card while staying in Sweden (persons who can work in Sweden are more easily accepted as having had a 'real residence'). Once the Danish card is approved you will have 6 months to move back to DK - if you have not decided that staying in Sweden is a better option.

You do not have to be on the lease, but you might as well - however, you will not be able to register yourself on the address in Sweden right away.

First you husband must register, then he must get his Swedish registration number, then you can apply for EU-residence and normally you cannot get yourself registered until you get your residence card.

Be sure to get a receipt when you deliver your application, as proof that you are not an illegal immigrant.

I can see why you want to get things started, since a move to Sweden together might be less stressful for your husband than your having to go away for 3 months. It is good that your father-in-law is ready and able to help.

[Melissa]

Thank you both for such comprehensive responses.

Of course, I/we are filing a complaint. I have 8 weeks to do so from the date issued and we have a draft we are looking at now (provided by your wonderful service). In the same letter of applicaton rejection, however, is a very clear edict that I must leave Denmark immediately, and re-file from another area outside Schengen (presumably the US, my home country). Nothing precludes me from both leaving the country and filing the appeal, they are not mutually exclusive. So even though our complaint includes a request for me to be allowed to stay in Denmark during the appeal process, there is no certainty that will be granted.

Does it make sense to wait here in Denmark for the complaint to be received and acted upon? I don't want to risk expulsion and the subsequent ban on my re-entry to Schegen. I understand the Danish police will likely not come beating down my door to drag me off to the airport under duress... but they have every right (according to the letter) to do so. I would be more willing to stay and wait it out and THEN decide to go to Sweden if it goes against us, if I knew I would not be risking my ability to be in Schengen long-term. The (at least) two-year ban on my return is my biggest immediate concern.

[fundiver199]

Dear Melissa

In the letter, they write, that if they do not recieve proff, that you left Denmark, within 4 weeks, they will initiate a socalled "udrejsekontrol". So I really dont think, that such a control will be initiated before at the earliest 4 weeks after the date of the letter. And by that time hopefully, Udlændingenævnet has had time to look at your complaint and allow you to stay.

Also the police do have other cases to look after than yours, its not like they are just sitting and waiting for Udlændingestyrelsen to write to them about your case, so that they can take immideate action against this dangerous american woman, who might still be in Denmark. So it might be well over 4 weeks, before someone actually come knocking on your husbands door to look for you.

If you are expelled by police though, this will make it impossible to enter Schengen again on a visa free stay, or to achieve a residence permit after danish rules, since you will be reported to SIS in that case. And then your only option left will be to use the EU-rules in Sweden or another EU-country. So you are right in thinking, that this is a situation, that should be avoided.

[Melissa]

Thanks so much for the responses!

I would like to clarify a couple of points:

Are we talking about EU residency or family reunification?

This is where we are having trouble understanding:

"First you husband must register, then he must get his Swedish registration number, then you can apply for EU-residence and normally you cannot get yourself registered until you get your residence card."

1) When we go to Sweden, how long before we can apply for familiy reunification/residency (please clarify which it is) under EU/Swedish law. I know my husband can register immdiately, but do we then have to live there for a "period of real residence" (3 months) BEFORE we apply? Or can we apply as soon as he is registered?

I read your response to me as saying we need to move to Sweden, my husband registers as soon as we arrive, and then we live there for 3 months and THEN we apply. My husband reads your response as, since he is ALREADY a citizen, we move to Sweden, he registers, gets his person number, and then we IMMEDIATELY apply, no waiting required.

2) If I decided to return to the States for a period of time, how does passport control view my exit? If I go back for three months to "reboot" my 90 days here, how do they view my overstay on this visit? Do I get reported and blocked from re-entry? If I want to go visit my family, but not for a prolonged stay (a few weeks, a month?) when could I do this? I assume I have to wait until we have applied under EU/Swedish law.

[fundiver199]

Your husband is basically right. He in an EU-citizen, and therefore he has a right to settle in Sweden with his wife. An application for residence card can be handed in, as soon as you have entered Sweden. No waiting period is required. However the residence card will not be issued, before Migrationsverket have the necessary documentation, which include some kind of proff, that your husband is actually settled in Sweden. Like a Swedish registration number. So you might need to wait a while to get your residence card. And in actual life, many people have recently waited 6 month or more to get it, because Migrationsverket in Malmø is simply behind with their work. It might be different though, if you settle in other parts of Sweden.

The 3 month is a guideline for, how long your husband need to be settled in Sweden as a minimum, before he will also have an EU-right to bring you with him, if he move back to Denmark. So please don’t confuse these two things with each other. Also ÆUG cant really recommend to make a stay in Sweden as short as just 3 month and then hope, that an application for EU-recidence card in Danmark will be approved after your return. It is much better to apply, before you move to Denmark, and to wait in Sweden, until the application has been approved. You can not really start an active life in Denmark anyway, before the application has been approved, so from your point of point, it is much better to wait in Sweden, where there is no insecurity and discussion about your legal status. And who knows. Maybe you enjoy life in Sweden so much, that you do not even want to transfer to Denmark, even you are legally entitled to do it. That has happened to many others before you.

This might all be very confusing. But think of the EU as a less progressed version of the USA, where you are born as a Californian citizen as well as a US citizen. As long as you stay in California, only Californian law applies to you, and your US citizenship is in reality dormant. But as soon as you move to New York, you activate your US citizenship and become covered by US federal law, even if at some later point you choose to return to California.

About your overstay that is really a good question. The normal consequence of an overstay is, that you can not get another visa. But you are visa free, so you do not need a visa in the first place. I think therefore, that there can not be any other consequence than a fine, if someone feels like giving it to you. But you might want to leave Schengen from Denmark in order to not complicate things further by dragging another schengencountrys authorities into the matter. And also you will not be able to reenter for 3 month, once you left.

If your husband has already moved to Sweden, and you have applied for an EU-residence card, you would on paper have a right to enter Sweden in spite of the Schengen rules. But this would then require the issuance on a nationally limited Swedish visa and a direct travel to Sweden without arrival or intermediate landing in other Schengen countries. And frankly that is so bothersome and complicated, that unless there is some kind of emergency situation, you really are better off postponing any traveling plans, until your swedish residence card has been issued.

According to the EU-commission spending 6 month to issue a residence card is only justified, when there are public safety concerns involved in the case. However Sweden do regrettably not live up to these guidelines at all at the moment, at least not in Malmø, so patience is definitely required. This is in stark contrast to, how the situation was even just 18 month ago, when residence cards were sometimes issued in Malmø directly upon delivery of the application, or after a few weeks waiting time only.

[fundiver199]

By the way did you file a complaint to Udlændingenævnet about the rejection of your danish application? It is a very principle matter, so ÆUG would definitly appreciate, if you have it tested for the benefit of our other members, even if you decide to transfer to Sweden.

[Melissa]

We did mail our complaint last week, and have a receipt from the post office. We have not heard any result as of yet, nor do I expect to hear this week.

However, we do anxiously await the response. We have complained based on their, to our mind, misinterpretation of the 90 day rule. If I am allowed to stay during their decision-making process, we have some time (5-6 weeks?) to make a considered decision. If I am NOT allowed to stay during the process, regardless of ultimate outcome, then we need to decide what to do much more quickly.

Which brings up another question: How do I provide "proof" to Danish Immigration that I have left Denmark. Presumably I will not have a passport stamp or airline ticket, as truly, it is best for my husband's health if I remain with him, rather than him having to get aids, etc. during a three-month (or more) absence.

We will have to provide "proof" of my departure within a 4 week time-frame, most likely. Will my application to EU/Sweden be sufficient "proof" that I am no longer in Denmark?

[fundiver199]

If you have transferred to Sweden, are you really that concerned, if some danish policemen come to the place, where your husband used to live, only to find that neither you nor your husband is there any more? They will have wasted their time for sure, but that is not really your problem, is it?

If you are currently legally or illegally in Denmark will depend on the decision of Udlændingenævnet. That is for sure not an ideal situation. But in reality it is no different than the situation, which you were in at the moment, where your 90 days expired, and Udlændingestyrelsen had not yet accepted your application and granted you a processual stay. So it is a situation, which a very large percentage of those, who choose to apply from Denmark, will find themselfes in for a period of time. And as such it is neither unusual nor dramatic in any way.

I think you somewhat overinterprete the letter, you have received from Udlændingestyrelsen. It is just a standard letter. But in such an official letter, they need to warn you, what could happen in the worst case, if you decide to just ignore their decision and stubbornly refuse to leave Denmark. It might look like, they are “threatening” you. But it is for your own benefit in the sence, that they want to make sure, you do got get yourself into an undesirable situation because of lack of knowledge. As a public authority they have a socalled “guidance duty”, which they fulfill in this way.

[Melissa]

I see your point. Of course it is of no concern to me if Danish police go to remove me and I am not there... But I think I (and I have seen this with other US Citizens) am, and perhaps overly so, concerned with "doing things the right way". The fact that there are as many "right ways" as there are countries confounds me...

Are you saying that when we move to Sweden, the rule that I must provide proof of exit from Denmark is no longer applicable? Would failure to provide this "proof" in any way jeopardize my EU/Swedish application?

I wonder, as a foreigner, if I could actually get an education in this immigration law stuff and work to help others? It seems a potentially satisfying career... lol

I don't mean to make light of this, but it seems like there so much to know, and even more to understand, and it amazes me how quickly you are able to provide such succinct and rapid responses.

[fundiver199]

Are you saying that when we move to Sweden, the rule that I must provide proof of exit from Denmark is no longer applicable?

There is no rule, that you MUSTprovide such proof. Udlændingestyrelsen just inform you, that if you do not do it within 4 weeks, then some policemen will at some point come to look for you.

So if you, or more likely your husband, find a visit from the police inconvenient and maybe a little bit embarrassing, since his neighbours might wonder, why the police is knocking on his door, you can avoid the situation by sending proff to Udlændingestyrelsen, that you already left.

This will then also spare the police from making a visit to your husbands place and writing a report about it. So it benefit both your husband and the police, that you send proff, that you left. But you do not have a legal obligation to do it.