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Fined for employing an illegal foreign national

April 2010 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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Some foreign nationals need a residence and work permit in order to work in Denmark. If they do not hold such a permit, it may cost their employer a fine.

The responsibility for ensuring that foreign nationals hold the necessary residence and work permit is the employer's. This principle was established in a case from the Court in Lyngby.  

Before the new electronic tax card was introduced on 1 January 2008, it would always be clear from the paper-based tax card if the foreign national had no work permit. Then the tax card would bear a stamp saying "Tax card is not a work permit".  

An Iranian national had worked for a local authority for 4 years. Before that, she had lived in Denmark for almost 3 years. She had a civil registration number and a tax card which did not say: "Tax card is not a work permit". As a result, her employer could not know that her residence and work permit, which had been obtained through marriage, no longer existed as the couple had divorced already before she was employed by the local authority.  

Although the employee was without legal residence in Denmark throughout her employment, she was issued with a ‚Äėclean' tax card every year. The Danish Immigration Service thought, in spite of the tax card and her employment, that she had left the country.  

Her employer knew nothing about all this. At one point, however, the employer became aware that the employee was involved in an inquiry by the Danish Immigration Service. After contacting the employee's lawyer and the tax authorities, the employer was informed by the tax authorities that before issuing a tax card, they would always check that the necessary work permit had been issued. The employer was thus assured that if the tax card was ‚Äėclean', there was no reason for concern. The employer therefore did nothing further.  

When the Danish Immigration Service became aware that the employee was working for the local authority, the police was contacted and the employer was charged with contravening the Danish Aliens Act.  

DKK 20 000 fine
There was no doubt that the employer had employed a foreign national without a work permit.  

The prosecution asked for a DKK 960 000 fine, equivalent to DKK 20 000 for each month in which the employee had had no work or residence permit.  

But the fine imposed by the Court was much lower - DKK 20 000 in total. The Court took into account that it was standard practice for the employer to rely on the paper-based tax card and whether it bore the stamp, but that the employer had failed to contact the appropriate authority when it became concerned about the employee's legal status.

 

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