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Denmark: Law to Stem Asylum-Based Immigration

(Feb. 1, 2016) On January 26, 2016, the Danish Parliament, in a vote of 81 to 27 (with 70 absentees), adopted several measures meant to reduce the number of asylum seekers arriving in Denmark. (Forslag til lov om ændring af udlændingeloven [Bill of the Law on Amending the Aliens Act] (final text of the proposal as adopted)  (Amending Bill), Law No. 87 (Jan. 26, 2016), FOLKETINGSTIDENE C [FOLKETING HANSARD C]; Afstemning Afstemningsnummer 245 [Vote Number 245], FOLKETINGET (Jan. 26, 2016).) The law will take effect immediately, on the day following the publication of the law in the Danish Gazette (Lovetidende). Certain provisions, such as the imposition of a fee for certain applications (see below) enter into force on March 1, 2016.

The measures are based on the asylum packet that the government presented to the public on November 13, 2015. (Asylpakke [Asylum Packet], STATSMINISTERIET (last visited Jan. 22, 2106).)  The following measures put forward in the packet were adopted:

  • delay of family reunification for asylum seekers fleeing indiscriminate violence: applicant family member must have been in Denmark for three years instead of one year;
  • increase in time requirement (time spent legally in the country) before awarding of permanent residency status;
  • imposition of additional integration requirements, such as the ability to prove language skills, before permanent residency can be attained;
  • permanent as well as temporary residence status made easier to lose;
  • introduction of a fee to apply for family reunification and to convert temporary residence permit to permanent residence permit;
  • increase in threshold for how long an asylum seeker can be required to pay for his own housing;
  • 10% reduction in economic aid to asylum seekers;
  • power given to police to search the persons of asylum seekers and their luggage for items of value to support the cost of their stay;
  • authority given to Danish Immigration Service to confiscate assets to support the asylum seeker’s stay in Denmark;
  • requirement that asylum seekers live in special housing centers; asylum seekers are no longer permitted to find their own housing;
  • changes to the selection criteria for United Nations High Commissioner for Refugees (UNHCR) quota refugees, with the reintroduction of the requirement that only refugees with the highest potential for integration into the Danish society be accepted; and
  • more restrictions on travel by the asylum seeker back to his or her home country.

Most Controversial Measures

The most criticized measure is the one that allows search and seizure of the property of asylum seekers. In the original draft, each asylum seeker was only allowed to keep property and monetary instruments up to a value of DKK3,000 (about US$437). In the legislation that was adopted, the threshold was increased to DKK10,000 (about US$1,456). (Press Release, New Bill Presented Before the Danish Parliament (Jan. 13, 2016), Ministry for Immigration, Integration and Housing website; Amending Bill, § 73 (under the Aliens Act, § 40 stk 3).) During the process of debate on the bill, the government clarified that this means that a family of four (mother, father, and two children) are allowed to keep property with a value of up to DKK40,000 (about US$5,824) in total. (2015-16 L 87 endeligt svar på spørgsmål 28 (2015-16 L 87 Final Answer to Question 28), FOLKETINGET (Jan. 17, 2016); Flygtningefamilie på fire må have op til 40.000 kroner (A Refugee Family of Four Can Have up to 40,000 Kroner), DR (Jan. 19, 2016).)

Under the new provision as adopted, asylum seekers are allowed to keep personal belongings of special significance or sentimental value such as wedding and engagement rings. (New Bill Presented Before the Danish Parliament, supra.)

The new legislation also gives the Danish police the right to search asylum seekers who arrived in Denmark before the law’s passage. (Id.) Prior to the adoption of the new provisions on confiscation of property, asylum seekers were required to inform the Danish Immigration Service of any property they possessed that could be used for the purpose of supporting themselves. (Id.)

The measure to confiscate property has been criticized by both the European Union and the UNHCR, as well as Amnesty International. (Denmark: Amendments to the Aliens Act Risk Violating International Legal Standards, Council of Europe website (Jan. 15, 2016); UNHCR Observations on the Proposed Amendments to the Danish Aliens Legislation, L 87, UNHCR Regional Representation for Northern Europe website (Jan. 6, 2016); Europarådet til Støjberg: Ondsindede asylstramninger (Council of Europe to Støjberg: Malicious Asylum Tightening), DR (Jan. 15, 2016); Press Release, Amnesty International, Danish Parliament Should Reject Cruel and Regressive Changes to Refugee Law (Jan. 20, 2016).) Former U.N. Secretary-General Kofi Annan also recently criticized the move. (The Migration Debate in Denmark: A European Race to the Bottom, Kofi Annan Foundation website (Jan. 26, 2016).)

Defense of the New Measures

On the day prior to the vote on the legislation, January 25, 2016, the Danish Minister for Foreign Affairs, Kristian Jensen, and the Minister for Immigration, Integration and Housing, Inger Støjberg, had to defend the draft law before the Civil Liberties Committee of the European Parliament. (Press Release, European Parliament, Civil Liberties Committee Debates Danish Law on Asylum and Refugees (Jan. 25, 2016).) The European Commission will be conducting a review of whether the Danish law violates European Union law. As Denmark is only bound by the Dublin Regulation and the EURODAC [European Dactyloscopy] Regulation, the European Convention on Human Rights, and the 1951 Geneva Convention (with its 1969 Protocol) and is not bound by EU law on asylum generally, the European Commission will only review the Danish law against these legal documents. (EP LIBE Committee: Danish Draft Law on Asylum Seekers: Exchange of Views in the Presence of Danish Authorities Following the Plenary Decision of 20 January 2016. Statement Steve RYAN, EC (DG Home) (4 – 15:29 – 15:35), EUROPA (Jan. 25, 2015).)

The Ministry of Immigration, Integration and Housing asserts in defense of the new confiscation measure that in Denmark the social welfare state helps only those people who are in need of assistance and that Danish citizens who receive assistance also have assets confiscated to help finance that support. (New Bill Presented Before the Danish Parliament, supra.) Reportedly, Switzerland and the Netherlands already have similar laws in effect, whereby asylum seekers’ property and valuables are confiscated to pay for their housing and upkeep. (Switzerland Seizing Assets from Refugees to Cover Costs, GUARDIAN (Jan. 15, 2016); Gordon Darroch, Netherlands Claimed More Than £500,000 from Refugees in Four Years, GUARDIAN (Jan. 25, 2016).)

Other Recent Danish Measures Related to Asylum Seekers

  • Legislative Changes

On November 20, 2015, the Danish Parliament passed legislation prescribing that asylum seekers whose applications have been refused can be held by the police pending their deportation and that special building rules apply to the housing of asylum seekers. (Lov om ændring af udlændingeloven (Lov. Nr. 1273 af Nov. 20 2015) [Act on Changes to the Aliens Act (Act No. 1273 of Nov. 20, 2015)], RETSINFORMATION.) Under this law, Danish police can also hold aliens arriving at the border to seek asylum, in order to properly identify and register them. The law further provides that in exceptional cases no court order is needed to arrest aliens for 72 hours. (Id.)

On December 11, 2015, the Danish Parliament adopted an act on transporters’ responsibilities, to the effect that in cases when border controls are in effect, the police can require transportation companies to check identification documentation (IDs) prior to boarding of passengers of vessels (trains, ferries, buses) that will carry them into Denmark. Transportation operators who fail to complete the ID checks and carry persons without identification into Denmark can be fined. (Lov om ændring af udlændingeloven (LOV nr 1499 af 11/12/2015) [Act on Changes to the Aliens Act (Law No. 1499 of 11/12/ 2015)], RETSINFORMATION; Lovforslag nr. L 74 (text of the proposal), FOLKETINGSTIDENE A.)

  • Border Controls

In addition to legislative changes to stem the number of asylum seekers, on January 4, 2016, as a response to Swedish ID requirements and border controls that took effect the same day, Denmark invoked the “danger to public order” exemption to the Schengen rules and implemented border controls along its German borders. (Press Release, Regeringen indfører midlertidig grænsekontrol [Government Introduces Temporary Border Controls] (Jan. 4, 2016), Ministry of Immigration, Integration and Housing website; Temporary Reintroduction of Border Control, European Commission website (Jan. 15, 2016).)

According to news reports, these border control measures reduced the number of asylum applicants from more than 100 per day to 11. (11 personer soegte asyl onsdag [Eleven People Seeking Asylum Wednesday] DR (Jan. 14, 2016).)

Additional Measures Expected

In the draft version of the new law, the Danish government explains that the purpose of these measures is to make it “considerably less attractive to seek [asylum] in Denmark.” (Amending bill at 8.) According to the Danish Prime Minister, Lars Lokke Rasmussen, the government is not at present planning any additional measures to make Denmark a less attractive place to seek asylum. (Løkke afviser flere stramninger: Det er ikke løsningen [Reject Tightening the Loop More: It Is Not the Solution], DR (Jan. 26, 2016).)

Still other responses to the large number of asylum seekers are contemplated, such as new legislation to facilitate asylum seekers’ gaining employment. (Id.) Moreover, according to reports, the government is researching the possibility of creating special asylum villages to be run by the state instead of the municipalities. (Regeringen skal undersøge flygtningelandsbyer [The Government Must Investigate Refugee Villages], DR (Jan. 20, 2016).)