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.

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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.