In Search of Control
Denmark Country Report
Shifting the paradigm,
from opt-out to all out?
Myrthe Wijnkoop
Anouk Pronk
Robin Neumann
Shifting the paradigm,
fromopt-out to all out?
Myrthe Wijnkoop
Anouk Pronk
Robin Neumann
Clingendael Report
February 2024
February 2024
© Netherlands Institute of International Relations ‘Clingendael’.
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About the Clingendael Institute
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About the authors
Myrthe Wijnkoop is a senior research fellow at Clingendael’s EU & Global Affairs
Unit and a cum laude graduate in public international law and Dutch law. Her areas
of expertise include international, European, and national refugee and asylum law,
and the politics of asylum and migration in an EU and European context. Myrthe has
more than twenty years of legal and political-strategic experience in the asylum
domain from the perspective of politics, governance, civil society, international
organisations as well as (policy) research. She is currently project leader of the
Ukraine migration and return study and has been involved as a migration advisor in
the StateCommission on Demographic Developments 2050.
Anouk Pronk is a Junior Research Fellow at the EU & Global Affairs Unit of the
Clingendael Institute, whose work focuses on international asylum and migration
policies and their impact in both the EU and the Netherlands. She holds an MA in
Peace and Conflict Studies from University College Dublin (First Class Honours),
an LLB in Dutch Law, including European Migration and Asylum Law, and a BSc in
International Relations and Organisations, both from Leiden University.
Robin Neumann is an intern at the Clingendael Institute for the EU & Global Affairs
unit, conducting research on migration policies and asylum systems. She is pursuing
an MSc in International Relations & Diplomacy at Leiden University, and graduated
magna cum laude in her Global Studies BA focusing on peace and conflict from
the University of California, Berkeley. Prior to Clingendael she was an intern at the
International Organization for Migration in Copenhagen, Denmark working for the
Labour Migration and Climate Migration teams.
About the Project
In December 2022, the Dutch government initiated a working group focussing on
the‘fundamental reorientation of the current asylum policy and design of the asylum
system.’ Its aim is to further structure the asylum migration process, to prevent and/
or limit irregular arrivals, and to strengthen public support for migration. One of the
assumptions is that the externalisation of the asylum procedure could be a feasible
policy option through effective procedural cooperation, with a country outside the EU,
that ‘passes the legal test’. In other words, if it would be operationalized in conformity
with (international) legal standards and human rights obligations. In that context, the
working group expressed the need for more insight on how governments with other
legal frameworks than the Netherlands, as an EU Member State, deal with the issue
of access to asylum, either territorial or extra-territorial, in order to provide thoughts
orangles for evidence-based policy choices by the Dutch government, at national
and/or European level.
The purpose of this comparative research project, led by the Clingendael Institute,
was to collect existing knowledge about the asylum systems of Australia, Canada,
Denmark, the Netherlands, and the United States, and to complement this with an
analysis of national legislation, policy, and implementation practices, focussing on
access to (extra-)territorial asylum. While there are overlaps, each of the asylum
and refugee protection systems in the research project operates in very different
geographical situations and political contexts.
Beyond the five country case studies, a separate synthesis report that is based on a
comparative analysis of the respective legal frameworks and the asylum systems of
those countries addresses directions for Dutch courses of action. The synthesis report
and the country case studies can be accessed here.
The main question to be answered in the national reports is: Which instruments
are applied or proposed by Australia, Canada, Denmark, the Netherlands and the
UnitedStates concerning or affecting access to asylum procedures and humanitarian
protection
Therefore, the country research focuses on several central elements of the national
asylum systems, including their access to, and implementation of, interdiction
practices, border and asylum procedures and other legal pathways. These were put
in a broader public, political and legal context, taking into account the countries’
national policy aims and objectives.
Contents
Introduction 
Setting the scene: generalbackground and relevant developments
International legal framework
Border management in policyand practice
Access and national asylumprocedures 
Extraterritorial access toasylum 
Return in the context of migration cooperation 
 Statistics 
Conclusion 
Acknowledgements
1
Introduction
When assessing the topic of access to (extra)territorial asylum in a European
context, Denmark holds a certain ‘status aparte’. Denmark joined the EU in 1973
after cautious consideration, having a carefully balanced approach towards
European integration. The country’s position can be characterized by a ‘soft’
form of Euroscepticism, making the decision to ‘opt in’ when there are considered
benefits.
1
Denmark is not part of the eurozone and negotiated several other
‘opt-outs’ among which the (larger part of the) common EU rules on asylum and
migration. This means that they are formally not bound by the EU asylum acquis,
which provides them with a unique position as EU-Member State.
After 2015 when 1,2 million people, mostly from Syria, were seeking refuge in the
European Union, the Danish government, with broad consensus in parliament,
has implemented legislation and policies to further restrict asylum protection.
2
Primary aim was, and still is, to make Denmark less attractive to asylum seekers.
Residence permits are now granted on a temporary basis with a view to returning
refugees to their countries of origin as soon as possible, and not to integration
and long-term residence: a self-indicated so-called ‘paradigm shift.’
3
Moreover,
the Danish government is very straightforward, and even takes ‘pride’ in
communicating their message of pursuing a very strict (territorial) asylum policy.
4
The explicitly stated and openly communicated target of the Danish government
is furthermore to prevent asylum seekers from arriving ‘spontaneously’ at the
territorial borders of Denmark: ‘zero people should apply for asylum in the
1 Aarhus University, “An overview of Denmark and its integration with Europe, 1940s to the
Maastricht Treaty in 1993,” Nordics Info, accessed on 12 October 2023.
2 The restriction of rights of asylum seekers started already in 2002, when the government under
Anders Fogh Rasmussen removed de facto status (with the aim to explicitly not provide protection
for Somalis), ended embassy asylum, changed the Refugee Appeals Board members etc.
SeeAarhus University, “Danish immigration policy, 1970-1992,” Nordics Info.
3 The Danish Institute for Human Rights, You can never feel safe: an analysis of the due process
challenges facing refugees whose residence permits have been revoked, 2022; See also
JensVedsted-Hansen, Stinne Østergaard and others, Paradigmeskiftets konsekvenser. Flygtninge,
stat og civilsamfund, August 2023; Jens Vedsted-Hansen, Refugees as future Returnees. Anatomy
of the paradigm shift towards temporary protection in Denmark, CMI 2022-6.
4 See also Thomas Gammeltoft-Hansen, “Refugee policy as ‘negative nation branding’: the case of
Denmark and the Nordics”, in: Danish Foreign Policy Yearbook 2017.
2
Shifting the paradigm, fromopt-out to all out? | Clingendael Report, February 2024
country’.
5
Of particular interest in this context is the 2021 amendment to the
Danish Aliens Act. This amendment provides for the possibility to transfer
asylum seekers to a third state outside the EU for processing the asylum claim,
protection in that state or return from there to the country of origin (section29).
6
This legislation fits in a long Danish tradition of focussing on the external
dimension of European asylum and migration policies, including being at the
forefront of the European debate on externalizing asylum procedures to countries
outside the EU. Already in the 1980’s Denmark put forward a plan for external
processing of asylum claims during a meeting in the UN General Assembly.
7
A factor that frequently surfaces in political and public debates on migration in
other EU Member States, such as the Netherlands, is that Denmark can pursue
these policy lines because of the EU asylum opt-out. And that an opt-out of the
EU acquis would thus be the panacea to manage asylum better.
8
However, the
fact that Denmark is indeed bound to several (other) international and European
legal obligations when applying these national laws and policies in practice is
often overlooked.
In this report we will look at Denmark’s asylum policies and protection system,
describing and analysing amongst others the applicable legal framework, the
implementation of border and asylum procedures, return policies and relevant
statistics. The report will also discuss in more detail any form of extraterritorial
access to asylum, through legal pathways and other policies, as well as migration
cooperation/partnerships with third countries in as far as they concern access to
protection. To which extent are the aims of the Danish government reached, and
at what costs? Are there lessons to be learned for the Netherlands (and other EU
Member States), considering the opt-out position that Denmark currently holds?
To what extent does the Danish ‘status aparte’ play a significant role in building
both the policy directions and the narrative itself?
5 Ritzau, “Mette Frederiksen: The Goal is zero asylum seekers to Denmark,” Nyheder, 22 January
2021.
6 See for a comprehensive legal assessment of this legislation: Nikolas Feith Tan and Jens
Vedsted-Hansen, “Denmark’s Legislation on Extraterritorial Asylum in Light of International and
EU Law,” 15 November 2021; Nikolas Feith Tan, “Visions of the Realistic? Denmark’s legal basis
for extraterritorial asylum,” Nordic Journal of International Law 91, 2022, p. 172-181; See also
Chantal Da Silva, “Denmark passes a law to send its asylum seekers outside of Europe,” Euronews,
3June2021.
7 Dutch Advisory Council on Migration (ACVZ), “External processing,” December 2010, p. 15.
8 Parliamentary documents, Kamerstukken II, 35 925, nr. 43, 23 September 2021.
3
1 Setting the scene:
generalbackground and
relevant developments
Political and sociocultural context: paradigm shift and a ‘broad
national consensus’
The fact that Denmark opted out of the EU asylum acquis does not implicate that
Denmark is a self-centred state. The driving force behind Denmark’s accession
to the EEC was the desire to become part of an open European economy, rather
than support for federalism.
9
The Danish government is an active member of
the European and international community and has for example a long tradition
as a humanitarian actor in multilateral relations and international cooperation.
Denmark is high ranking in lists of humanitarian donor countries and, at least
formally, sets the standard of Official Development Assistance (ODA) at the
UNgoal of 0,7% GNI.
10
At the same time, Denmark remains very keen to retain its national sovereignty
in certain policy domains. It has installed multiple institutional safeguards to
allow for selective participation in European integration, such as safeguards in its
Constitution with respect to delegating power, and a parliamentary committee
which has oversight over decisions in Europe. Sincethe2022 invasion of Russia in
Ukraine, Denmark however moved a bit closer to the EU again.
Denmark has thus adopted a rather pragmatic non-federalist approach
towards the EU and certain policy domains such as asylum and migration.
Keyparliamentary decisions on European integration and related topics are
made by consensus between the main political parties, regardless of the
coalition in power.
11
The national political debate on asylum and migration in
Denmark has in recent years become no longer a topic with a traditional left-
9 Aarhus University, “An overview of Denmark and its integration with Europe,” 25 February 2020.
10 Ministry of Foreign Affairs of Denmark, The Government’s priorities for Danish development
cooperation 2023-2026, April 2023; However, in practice the government is falling short:
Concord,AidWatch, Bursting the ODA Inflation bubble, 2023.
11 Aarhus University, “An overview of Denmark and its integration with Europe,” 25 February 2020.
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Shifting the paradigm, fromopt-out to all out? | Clingendael Report, February 2024
right political divide. Rather, parties such as the Social Democrats have begun to
support stricter asylum policies and limited the access to permanent protection
in the country. This has been done by addressing the discussion of cost and
benefits of migration from the perspective of the national community, resulting
in policies as regards territorial access to asylum that are close to those of
right-wing parties such as the Danish People Party, and a national consensus
on the topic of migration. Thus, a broad majority in the Danish parliament
supports restrictive migration and asylum policies and strict rules for access and
settlement of persons originating from outside the EU/EEAS.
12
The general focus
shifted from integration to return, from permanent residence to revocation of
protection: the ‘paradigm shift’.
13
A clear manifestation of this paradigm shift is that since 2015 a set of restrictive
legislative and policy changes was passed by the Danish parliament.
14
A new
temporary subsidiary protection ground was introduced in the Aliens Acts
(section 7(3)) applicable to situations of generalized violence, whereby the right
to family reunification is withheld for initially the first three (and currently two)
years of residence.
15
This protection ground is mostly used for Syrians as they are
the largest group to receive temporary subsidiary protection. Also, the threshold
for revocation of asylum protection other than Convention refugee status was
lowered: a durable improvement of the security and human rights situation in the
country of origin is no longer necessary.
16
This strong focus on the revocation of
asylum residence permits is rather unique in comparison to other EU Member
States, as the criteria for cessation in EU acquis require a high(er) standard.
17
Other changes to the Danish asylum legislation dealt with the confiscation of
12 Nikola Nedeljkovic Gøttsche, “Folketingets partier er stort set enige om Danmarks
udlændingepolitik,” Information, 14 July 2018.
13 L 140, amendments to the Danish Aliens Act. See also Emil Søndergård Ingvorsen,
“‘Paradigmeskiftet’ vedtaget i Folketinget: Her er stramningerne på udlændingeområdet,”
DRPolitik, 21 February 2019.
14 L 87, amendments to the Danish Aliens Act.
15 The original legislation spoke about three years ‘waiting time’ for family reunification, except for
exceptional circumstances. However, in M.A. v. Denmark (9 July 2021) the European Court on
Human Rights (ECtHR) stated that this provision did not entail a reasonable balance of interests
and was therefore in violation of article 8 of the Convention. The duration was then changed to
twoyears.
16 See more extensively on these matter under ‘national asylum procedure’.
17 Nikolas Feith Tan, “The End of Protection the Danish paradigm shift and the law of cessation,”
Nordic Journal of International Law, 90, 2021, p. 60-85.
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Shifting the paradigm, fromopt-out to all out? | Clingendael Report, February 2024
assets from asylum seekers (the widely commented so-called ‘jewelry-law’),
18
introduction of short-term residence permits, mandatory review of protection
needs, further restrictions on family reunification, reduced socials benefits for
refugees and restrictive criteria for permanent residency. This set of legislative
and policy changes called for quite some criticism from refugee law experts
andUNHCR.
19
While lowering protection standards and limiting the territorial protection space,
Denmark put much effort in the external dimension of asylum and migration
policies. Both through migration cooperation with third countries, as for example
the MoU with Rwanda, as well as a focus on exploring the possibilities of
outsourcing and/or externalizing asylum procedures to countries outside the
EU. This complies with a long tradition of Danish policy thinking. Already in 1986
Denmark put forward in a UN setting the idea of externalizing asylum procedures.
The Danish government was one of the EU Member States supporting the 2003
United Kingdom proposal to amend EU asylum policy, stating that persons
seeking asylum in EU Member States should be automatically sent to a transit
and processing center outside the EU, where their applications would then be
assessed.
20
And again Denmark together with the UK and the Netherlands were
frontrunner EU Member States in promoting and pushing forward initiatives
to strengthen refugee protection in the region such as multilateral initiatives
like the Syria Refugee Response and Resilience Plan (3RP) and the Ethiopia
Country Refugee Response Plan (ECRRP). Denmark is also one of the driving
actors behind the concept of EU Regional Protection Programmes,
21
and had a
leading role in the programme in Jordan, Lebanon and Iraq (RDPPII 2018-2021).
18 The Danish Parliament, “L 87 Forslag til lov om ændring af udlændingeloven,” 10 December 2015;
See also Harriet Agerholm, “Denmark uses controversial ‘jewellery law’ to seize assets from
refugees for first time,” The Independent, 1 July 2016; The Local, “Here’s how Denmark’s famed
‘jewellery law’ works,” 5 February 2016; Ulla Iben Jensen and Jens Vedsted-Hansen, “The Danish
‘Jewellery Law’: When the signal hits the fan?”, EU Immigration and Asylum Law and Policy,
4March 2016.
19 UNHCR Northern Europe, “Recommendations to Denmark on strengthening refugee protection,”
11 January 2021; UNHCR Nordic and Baltic States, “Observations from UNHCR on the Danish law
proposal on externalization,” March 2021.
20 UK Home Office, “New International Approaches to Asylum Processing and Protection,”
March2003.
21 Thea Hilhorst et al., “Factsheet Opvang in de regio: een vergelijkende studie,” 18 January 2021;
ECRE, “EU External Cooperation and Global Responsibility Sharing: Towards an EU Agenda for
Refugee Protection”, February 2017.
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Shifting the paradigm, fromopt-out to all out? | Clingendael Report, February 2024
Denmarkalso has one of the oldest refugee resettlement schemes in cooperation
with UNHCR in Europe.
22
This fits the Danish profile of a humanitarian actor, with
a focus on foreign relations and development cooperation, seeking multilateral
approaches to tackle asylum and migration issues.
23
Also NGO’s such as the
Danish Refugee Council have large scale humanitarian programmes in regions
oforigin and transit.
24
Asylum and migration nexus: economic context
Most immigrants to Denmark are however not asylum seekers, but come
from other European countries, reaching almost 75,000 people in 2021.
25
Furthermore,approximately 12,000 migrant workers and around 9,000 foreign
students received residence permits that year. With some of 2000 asylum
applications in 2021, this constitutes the smallest group of immigrants to
Denmark.
26
In recent years, due to an ageing population, Denmark has been experiencing
labour shortages, specifically skilled work, with 42% of Danish companies
reporting that they face challenges filling positions in the first quarter of 2022.
27
With the Danish unemployment rate being quite low, 2.5% in August 2023,
28
Denmark has to look elsewhere to fill in the labour shortages. In March 2023,
amendments to the current Danish Aliens Act were adopted to strengthen
22 The numbers of refugees which are indeed resettled in practice are significantly decreasing,
and the resettlement status itself is no longer permanent. See under ‘Extraterritorial asylum:
legalpathways’.
23 UNHCR, “Denmark.” See also the 2022 governmental agreement with references to the multilateral
approaches om migration (p. 39-40).
24 The Danish Refugee Council (DRC) is an NGO which also has specific designated tasks in the
Danish asylum procedure, for example on legal assistance and the manifestly unfounded cases
(see further under national asylum procedures). DRC Asylum also takes part in resettlement
missions and sometimes fact-finding missions. DRC Asylum’s role in the Danish procedure is not
linked to the international work of DRC. See website Danish Refugee Council.
25 Einar H. H. Dyvik, “Number of residence permits granted in Denmark in 2022, by reason,” Statista,
8June 2023.
26 Einar H. H. Dyvik, “Number of residence permits granted in Denmark in 2022, by reason,” Statista,
8June 2023.
27 European Commission, “Labour Market information: Denmark,” 17 January 2023.
28 Trading Economics, “Denmark Net Unemployment Rate.”
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Shifting the paradigm, fromopt-out to all out? | Clingendael Report, February 2024
international recruitment of talented third-country nationals.
29
One of the
changes allows companies to apply to the certification of the Fast track scheme,
through which foreign skilled workers can be brought to Denmark through
quicker procedures.
30
In a push to support the unionization of staff, these
companies must be covered by a union association agreement. The extension of
the acceptance ‘positive list’ for skilled work and those with higher education is
another amendment, which specifically lists professions experiencing a shortage
of qualified labour.
31
Lastly, a supplementary pay limit scheme was created,
which requires a labour migrant to have a job offer with a minimum annual salary
of DKK 375,000 (equivalent to approx. 50,200 EUR).
32
Last year, an increase of the employment rate of non-Western immigrants was
measured until 55.8%, an all-time high for Denmark.
33
While the importance of
access to the labour market and gaining employment have been recognized as
key elements of integration, the recent ‘paradigm shift’ has shifted Denmark’s
focus away from integration measures.
34
Currently, the asylum systems and
labour migration framework are distinct domains in legislation, separated
between ‘asylum’ and ‘work’. The law states that an asylum seeker who has
a pending case with immigration services and is residing in the country for
at least 6 months, can apply to the DIS for approval to work for a year in the
meantime.
35
This excludes asylum seekers in the Dublin procedure.
36
A contract
29 See for example on nurses from Iran: Rasmus Dyrberg Hansen, Jonas Guldberg, and
AnnetteJespersen, “Vejle Kommune hyrer sygeplejersker fra Iran, mens de søger godkendelse til
job i Danmark,” DR, 15 September 2023.
30 Shkurta Januzi, “Denmark Amends Its Aliens Act in a Bid to Lure More Foreign Workers & Students,”
Schengen Visa, 28 March 2023.
31 The Danish Immigration Service, “The Positive Lists.”
32 See amongst others: Mads Hørkilde, “S-minister siger nej til at åbne for »ladeporte« for
udenlandsk arbejdskraft,” Politiken, 17 September 2023; Jyllands-Posten, “Minister afviser at
lempe regler for international rekruttering,” 18 September 2023; DR, “Løkke: Virksomheder med
overenskomst skal kunne få alle de udlændinge, de vil | Politik,” 29 August 2023; Dansk Erhverv,
“Dansk Erhverv: Vi skal have et paradigmeskifte for udenlandsk arbejdskraft,” 5 September 2023;
Berlingske, “Løkke & co. med usædvanligt forslag: Vil uddanne og hente sygeplejersker og sosu'er
fra Filippinerne,” 6 July 2023.
33 European Commission, “Denmark: Employment level of migrants and refugees reaches record
high,” 7 January 2022.
34 Refugees Denmark, “Refugees are absolutely necessary for the Danish labour market,”
3November 2019.
35 The Danish Immigration Service, “Conditions for Asylum Seekers.”
36 Interview with DRC d.d. 2 November 2023.
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Shifting the paradigm, fromopt-out to all out? | Clingendael Report, February 2024
must be entered with the DIS which lays out certain conditions which must be
met. However, in practice, most asylum seekers do not work due to the difficulty
in obtaining work (and thus subsequent authorization) while they are placed in
one of the accommodation centers. Different rules apply however for displaced
Ukrainians, who are allowed to work directly under the national temporary
protection scheme.
37
37 More about rights for Ukrainians can be found here: DRC, “Ukraine: FAQ.”
9
2 International legal
framework
Convention obligations
38
Denmark has ratified the 1951 Geneva Convention Relating to the Status of
Refugees and its 1967 Protocol, as well as the other relevant UN human rights
treaties such as Convention against Torture (CAT), International Convention on
Civil and Political Rights (ICCPR) and Convention on the Rights of the Children
(CRC). Denmark is also party to the European Convention of Human Rights
(ECHR) and is bound by the European Fundamental Rights Charter (article 18
and19) as source of primary EU law. The legal protection obligations deriving
from these treaties, with non-refoulement as a cornerstone principle, are
implemented in the national legislation, more in particular, article 7 of the
DanishAliens Act. The ‘convention status’ or ‘K-status’ (art. 7(1)) refers directly
to the UN Refugee Convention. Subsidiary protection (B-status or de facto-
status) is granted if a person risks treatment in violation of article 3 ECHR upon
return to the country of origin, including individuals who run a real risk because
of meremembership of a group.
39
The third protection ground derives from
European Court of Human Rights (ECtHR) jurisprudence which is subsequently
integrated in Union law, and deals with general temporary protection status
forreasons of indiscriminate violence and attacks on civilians in the country of
origin (non-individualized violence).
40
In general terms, the scope of the protection against refoulement in the ECHR,
as interpreted by the ECtHR, is broader than under the Geneva Convention.
41
Any return of an individual who would face a real risk of being subjected to
treatment contrary to these articles is prohibited. Moreover, protection against
the treatment prohibited by Art. 3 ECHR has been considered more absolute
38 This paragraph equals for a large (generic) part the paragraph on convention obligations in
theDutch country report, as this part of the legal framework applies to both countries.
39 ECtHR, Salah Sheekh v. The Netherlands, 1948/04, 11 January 2007.
40 ECtHR, NA v UK, No. 25904/07, 17 July 2008.
41 Vladimir Simoñák and Harald Christian Scheu, Back to Geneva. Reinterpreting Asylum in the EU.
Wilfried Martens Centre for European Studies, October 2021, p. 20.
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Shifting the paradigm, fromopt-out to all out? | Clingendael Report, February 2024
in several Court rulings.
42
To prevent refoulement, it is not per se required to
admit a person to the territory of a state, if sending him or her back does not
lead to a situation where the person would be persecuted or runs a real risk of
torture, inhumane or degrading treatment.
43
However, without assessing the
individual case, it would be rather difficult to know whether someone has an
arguable claim of a real risk of refoulement. So, ensuring effective access to an
asylum procedure is a precondition to ensure the principle of non-refoulement.
44
In addition, article 4 of Protocol No. 4 to the ECHR prohibits collective
expulsion. This prohibition also requires that there is a reasonable and objective
examination of the specific case of each individual asylum seeker.
45
If a country has jurisdiction, there is an obligation to respect and guarantee the
human rights enshrined in the applicable international legislation. If Denmark,
as State-party to the ECHR, violates those obligations,
46
the state can be held
accountable for an ‘internationally wrongful act’ by the ones whose rights have
been violated.
47
In the context of the ECHR jurisdiction this is not only territorial,
48
but also applied extra-territorially if there is effective (territorial, personal or
42 Chahal v. United Kingdom, ECtHR judgment of 15 November 1996, paras. 76 and 79, referring
to Soering v. United Kingdom, ECtHR judgment of 7 July 1989, para. 88, Ahmed v. Austria,
ECtHRjudgment of 17 December 1996, Ramzy v. Netherlands, ECtHR judgment of 27 May 2007,
para. 100, Saadi v. Italy, ECtHR judgment of 28 February 2008, para. 137. See Jens Vedsted-
Hansen: European non-refoulement revisited, in: Scandinavian Studies in Law, 1999-2015, 272.
43 Daniel Thym, “Muddy Waters: A guide to the legal questions surrounding ‘pushbacks’ at the
external borders at sea and at land,” EU Migration Law Blog, 6 July 2021.
44 See on this subject matter also Monika Sie Dhian Ho and Myrthe Wijnkoop, “Instrumentalization of
Migration,” Clingendael Institute, December 2022.
45 ECtHR, Hirsi Jamaa v. Italy, no. 27765/09, 23 February 2012. See also the Rule 39 measures issued
by the ECtHR in August and September 2021 in order to stop the expedited (collective) expulsions
of Iraqi’s and Afghans stuck at the Latvian, Lithuanian and Polish borders (ECtHR Press Releases of
21 August 2021 and 8 September 2021).
46 ECtHR, M.A. v. France, No. 9373/15, 1 February 2018; ECtHR, Salah Sheekh v. the Netherlands,
No.194/04, 11 January 2007, para. 135; ECtHR, Soering v. the United Kingdom, No. 14038/88,
7July 1989; ECtHR, Vilvarajah and Others v. the United Kingdom, Nos. 13163/87, 13164/87,
13165/87, 13447/87 and 13448/87, 30 October 1991. See European Union Agency for Fundamental
Rights, “Fundamental rights of refugees, asylum applicants and migrants at the European
borders,” March 2020, p. 6.
47 International Law Commission, “Draft Articles on State Responsibility, Official Records of the
General Assembly,” Fifth-sixth Session (A/56/10), article 2.
48 EHRM, Soering. v. United Kingdom. No 14/038/88, 7 July 1989 EHRM, Bankovic a.o. v. Belgium a.o.,
No. 52207/99, 21 December 2001; Hoge Raad, IS women v. the Government of the Netherlands,
26June 2020, ECLI:NL:HR:20201148, paras. 4.16-4.18.
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functional) control over another territory or over individuals who have carried out
the act or omission on that territory.
49
For example in the Hirsi v. Italy case, the
ECtHR found that a group of migrants who left Libya with the aim of reaching
the Italian coast, and that were intercepted by ships from the Italian Revenue
Police and the Coastguard and returned to Libya, were within the jurisdiction of
Italy. According to the ECtHR a vessel sailing on the high seas is subject to the
‘exclusive jurisdiction of the state of the flag it is flying’.
50
This means that Denmark cannot exempt itself from its human rights obligations,
including non-refoulement and access to asylum, by declaring border areas
as non-territory or transit zones or to externalize asylum procedure to other
countries: the determining factor remains whether or not there is jurisdiction,
either/and through de jure or de facto control by the authorities.
51
This does
however not mean that access to asylum can only be provided for on Danish
territory. The 1951 Refugee Convention states that refugees must be protected,
but does not in itself prohibit states negotiating cooperation agreements on
where that protection is guaranteed, as long as the preconditions fulfill the
legal state obligations. Furthermore, the ECtHR has in 2020 drawn a line with
regards to gaining territorial access to the European Union. In its judgment in the
case of N.D. and N.T. v. Spain it concluded that Spain did not breach the ECHR
in returning migrants to Morocco who had attempted to cross the fences of
the Melilla enclave. The Court reasoned that because the group had not made
use of the entry procedures available at the official border posts, the lack of an
individualized procedure for their removal had been a consequence of their own
conduct (i.a. the use of force and being in large numbers).
52
In other words, the
line of argumentation in this case does require states to deploy effective legal
options and means for access to protection for third country nationals, however it
also takes into account the actions of the applicants to that effect.
Denmark, when becoming signatory to the ECHR, also adhered to the
interpretation of those human rights through the jurisprudence of the ECtHR.
Inthe case M.D. and others on Syrian asylum seekers, who were denied asylum
49 See also February 2022. See also Maarten den Heijer, Europe and Extraterritorial Asylum, 2012;
Lisa-Marie Klomp, Border Deaths at Sea under the Right to Life in the European Convention on
Human Rights, 2020; Annick Pijnenburg, At the Frontiers of State Responsibility. Socio-economic
Rights and Cooperation on Migration, May 2021.
50 ECtHR, Hirsi Jamaa and Others v. Italy, No. 27765/09.
51 See also Sergio Carrera, “Walling off Responsibility,” CEPS, nr. 2021(18), November 2021, p. 12.
52 ECtHR, N.D. and N.T. v. Spain, Nos. 8675/15 and 8697/15, 13 February 2020.
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in Russia, the ECtHR found that it would be a violation of ECHR Art. 2 and Art. 3
if Russian authorities returned the asylum seekers to Syria.
53
The Danish Refugee
Appeals Board (RAB) has considered the judgment but did not find that there was
a need to change the current practice regarding Syrian cases: according to the
RAB the case dealt with specific individualized aspects of the claim rather than
the general exceptional nature of the conflict and had therefore no wider impact
than that particular case.
54
EU law: asylum and migration opt-out
Where Denmark is a party to the international and regional human rights
framework and thus bound by the legal obligations enshrined in the conventions,
Denmark has opted out of the common European asylum and immigration
policies (Title V of Part III of the Treaty on the Functioning of the European Union)
and is therefore not bound by measures adopted pursuant to those policies.
55
The Danish opt-out with respect to asylum is related to the outcome of a
referendum on the Maastricht Treaty in 1992.
56
In this referendum, a majority
of 50.7% of the Danish voters (with a turnout of 83.1%) rejected the Maastricht
Treaty. The solution for the ratification procedure was found through the
introduction of four Danish opt-outs, including no participation in majority voting
in Justice and Home Affairs.
57
This meant that Denmark did not participate in
the harmonization of EU asylum policies. In December 2015, Denmark held a
referendum specifically on the opt-out concerning Justice and Home Affairs.
Thevote was to determine if Denmark would maintain the exemptions in the
original opt-out or replace it with an opt-in model. Denmark voted not to modify
the original opt-out.
58
53 ECtHR, M.D. and others v. Russia, Nos. 71321/17 and 9 others, 14 September 2021.
54 Flygtningenaevnet (RAB), “Drøftelser vedrørende Syrien-praksis på møde i Flygtningenævnets
koordinationsudvalg den 28. oktober 2021.” 29 October 2021.
55 Articles1 and 2 of the Protocol (No. 22) on the position of Denmark, annexed to the Treaty on
European Union and the Treaty on the Functioning of the European Union. See in this respect also
the ECtHR in MA v. Denmark, 9 July 2021, Application number 6697/18.
56 Aarhus University, “An overview of Denmark and its integration with Europe.”
57 These four opt-outs were agreed in December 1992 in the Edinburgh Agreement and confirmed
in a Danish referendum in 1993 which allowed the ratification procedure to proceed. Theother
threeopt-out were: no participation in the euro; no participation in EU defence; and no partici-
pation in European citizenship.
58 Danish Parliament EU Information Centre, “The Danish opt-outs from EU cooperation,” accessed
on 12 October 2023.
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This means that Denmark is still not part of the Common European Asylum
System (CEAS) and not directly bound by EU legislation on asylum, in particular
the Qualification Directive (2011/95/EU), the Procedures Directive 2013/32/EU),
the Reception Directive (2013/33/EU) and the Temporary Protection Directive
(2001/55/EC).
59
The Return Directive however does apply in Denmark due to the
Schengen cooperation. And Denmark decided to join the Dublin system, which
contains criteria for the responsibility of a country for an asylum application, via
a parallel agreement concluded with the EU in 2006.
60
In practice, the Danish
participation in the Dublin system means that Denmark must observe this
system’s fundamental principle of mutual trust.
61
Denmark’s asylum practices
must offer at least similar procedural and reception standards to asylum seekers
transferred to Denmark under the Dublin II regulation.
62
Despite this approximation of asylum standards, the asylum systems of EU
Member States on the one hand and the Danish standards on the other can
differ, not only in theory (because of the opt-out) but also in practice. The impact
thereof became clear in the 2022 Dutch Council of State’s judgment on the
legality of Dublin transfers of Syrians to Denmark. They would risk losing their
asylum status in Denmark due to ceased circumstances, while the Netherlands
under article 15b and 15c of the Qualification Directive had not deemed parts
59 Denmark did for example not apply the Temporary Protection Directive for Ukrainian displaced
persons, but rather enacted a ‘special law’ in the aftermath of the Russian invasion of Ukraine.
The law was intended to prepare for and accommodate a high number of asylum-seekers arriving
in Denmark within a short time span. It eased the admissibility for asylum claims for Ukrainians
and allowed for an expedited process to seeking and gaining employment within Denmark.
Thedistribution of asylum-seekers was based around placement in areas where the asylum-
seekers had a pre-existing network, or in areas that have higher job opportunities.
It also contained measures to help Ukrainian children integrate into the Danish schooling system,
while also containing provisions to ensure that they could continue to learn Ukrainian.
60 This agreement extends to Denmark the provisions of Council Regulation (EC) No 343/2003
establishing the criteria and mechanisms for determining the Member State responsible for
examining an asylum application lodged in one of the Member States by a third-country national,
and Council Regulation (EC) No 2725/2000 concerning the establishment of ‘Eurodac’ for the
comparison of fingerprints for the effective application of the Dublin Convention. See Council of
the European Union, “Council Decision 2006/188/EC,” 21 February 2006.
61 See also EUAA, “Background note Dublin II Appeals and Mutual Trust, Challenges related to mutual
trust concerns raised in appeals within the Dublin III procedure,” 5 April 2023.
62 This is evidenced by a factsheet filled out by the Danish Ministry of Immigration and Integration,
which makes clear that Denmark offers similar procedural guarantees and reception to asylum
seekers who are transferred under the Dublin system.
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of Syria safe and grants subsidiary protection to Syrians. The Dutch Council
of State held that the Syrian applicant had given sufficient evidence that a
transfer to Denmark would expose him to a real risk of indirect refoulement to
Syria.
63
A year later, in a judgment of September 6, 2023 the Dutch Council of
State held that as the national (Dutch) policies to Syria had changed to a more
individual assessment, the applicant could no longer demonstrate an evidently
and fundamentally different level of protection between the Netherlands and
Denmark, and thus there no longer was a risk of indirect refoulement.
64
The above example shows that despite the Danish opt-outs on asylum, Denmark
is still tied to the standards in other EU countries because of its participation
in the Dublin system and its concept of “mutual trust”. These standards must
generally be in compliance with EU asylum legislation and the interpretation of
this by the EU Court of Justice. Indeed, the Dutch Council of State in its judgment
of 6 July 2022 referred to the Court of Justice judgment in the Jawo case
65
as well as judgments of the ECtHR with respect to responsibility allocation
agreements. It concluded that EU law requires courts to scrutinize the level of
protection in general and with respect to specific groups.
EU standards can also bind Denmark in another manner. In MA v. Denmark
theECtHR, while acknowledging Denmark’s opt-out regarding EU immigration
legislation, referred to the EU family Reunification Directive. In this case,
theEU’s legislative framework left a margin of appreciation to Member States.
However,the fact that the ECtHR referred to EU standards is an indication that
the ECHR, to which Denmark is a party, and EU law are increasingly intertwined.
The ECtHR held: ‘At the same time the Court notes that while Denmark was not
bound by the common European asylum and immigration policies set out in the
Treaty on the Functioning of the European Union, or by any measures adopted
pursuant to those policies (see paragraph 42 above) it is clear that within the
European Union an extensive margin of discretion was left to the Member States
when it came to granting family reunification for persons under subsidiary
protection and introducing waiting periods for family reunification.
66
63 ABRvS, ECLI:NL:RVS:2022:3797, 19 December, 2022; ABRvS, ECLI:NL:RVS:2022:1864, 6 July 2022.
64 ABRvS, ECLI:NL:RVS:2023:3286, 6 september 2023. See also the press release of the Council of
State: “Nederland mag Syrische vreemdelingen weer overdragen aan Denemarken.”
65 EU CoJ, Jawo v. Germany, C163/17, 9 March 2019, paras 87-93.
66 ECtHR, M.A. v. Denmark, No. 6697/18, 9 July 2021, para. 155.
15
3 Border management in
policyand practice
Despite having government coalitions with different political backgrounds during
the past decades, preserving Denmark’s national identity plays a consistent
central role in its migration policy, explaining its strict visa policy and integration
regulations. The arrival and admittance of substantial numbers of immigrants is
seen as a threat to (or destabilization of) the national welfare system and should
thus be prevented.
67
This is why border controls are encouraged and are an
important part of the asylum and migration system.
Schengen and border controls
Since 2001, Denmark has been part of the Schengen agreement, leading to a
division between internal Schengen borders, neighbouring Schengen members
Germany and Sweden, and external Schengen borders, which are the sea and
air borders.
68
Denmark does not have any external Schengen land borders.
TheDanish police is the responsible actor in managing the borders.
With the aim of improving its border management systems of the Schengen
borders, the Danish police started a collaboration with IDEMIA, a multinational
technology company in November 2021. Specific solutions such as self-service
kiosks, automatic border control (e-Gates), and mobile biometric tablets were
implemented.
69
Denmark has introduced temporary border controls at internal Schengen borders
valid until 11
th
November 2023. Such temporary internal Schengen border controls
are valid under the Schengen Borders Code in case of a serious threat, and only
to be applied as a last measure.
70
There are currently twelve other EU-Member
67 Fondation pour l’Innovation Politique (fondapol), Danish immigration policy: a consensual closing
of borders, February 2023.
68 Danish Police, “Border control,” accessed on 17 October 2023.
69 Shkurta Januzi, “Denmark selects IDEMIA to deliver new border control solution for its external
schengen borders,” SchengenVisa, 28 November 2021.
70 Migration and Home Affairs, “Temporary Reintroduction of Border Control,”; Danish Police,
“Bordercontrol.”
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States that have enacted this exception for various reasons. In the case of
Denmark, the reasons for the recently renewed directive for heightened security
are ‘Islamist terrorist threat, organized crime, smuggling, Russian invasion of
Ukraine, and irregular migration along the Central Mediterranean route.’
71
It more
specifically had to do with the Koran burnings in July 2023. The Danish ministry of
Justice stated that the threat necessitated extra controls regarding who enters
the country. Even those flying into the country from another Schengen country
can expect extra controls.
72
Furthermore, Denmark currently has an active border control presence at its
southern border with Germany as a temporary measure. This measure has been
extended multiple times since its introduction in January 2016. Similarly, Denmark
introduced internal border controls at the Swedish border in November 2019 for
the reason of organised crime and terrorism- executed by regular road, rail, and
ferry checks. The country is currently under revision by the European Commission
for the legality of such controls, due to the requirement of exceptionality for
themeasures.
73
Emergency brake measure or ‘Nødbremse’
Moreover, an ‘emergency brake’ measure was introduced in the budget
legislation of 2017
74
which grants the Minister for Integration the power to
reject asylum-seekers arriving at Danish borders, who have previously transited
through another Dublin-country and thus effectively close the border.
75
Preconditionfor the activation thereof is a crisis situation where the Dublin
regulation is still formally in place, but where the Danish government perceives
71 Ibid.
72 Johannes Birkebaek, “Denmark tightens border control after Koran burnings,” Reuters,
4August2023; Crisis 24, “Denmark: Government extends stricter controls at border checks,”
5September 2023.
73 Bleona Restelica, “Denmark Being Investigated for Systematically Prolonging Border Controls
Since 2016,” Schengenvisa, 17 August 2023.
74 Danish Ministry of Finance, “Finanslov for finansåret 2017,” 2017.
75 “The Foreigner and Integration Minister can in Special Circumstances decide that Foreigners,
that claim to fall under section 7 of the Aliens Act can be rejected entry due to prior travel
from a country that is included in the Dublin agreement. The decision in taken for a period
of up to 4 weeks, and can be extended for a period of up to 4 weeks at a time’. Danske Love,
“Udlændingeloven,” § 28, stk. 7.
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that the agreement has ceased to be enforced in practice and that it thus cannot
reasonably be expected to adhere to the Dublin procedures.
76
This would in practice result in a total ban on territorial asylum: to prevent
asylumseekers that arrive at the Danish-German border, which is the main
border crossing for asylum seekers, to access Danish territory. This legislation
is highly controversial within Denmark, as it could also have severe impact
on cross-border relations with neighboring countries.
77
Currently no policy or
operational plan exists that outlines exact steps that the Ministry should take
in order to physically reject asylum seekers crossing the border.
78
At this point it
remains a dead letter.
Detention
The general grounds for immigration-related detention are outlined in Article 35
and 36 in the Danish Aliens Act. Specifically regarding asylum seekers, article36
lays out that “non-citizens may be detained if non-custodial measures are
deemed insufficient to ensure the enforcement of a refusal of entry, expulsion,
transfer, or retransfer of a non-citizen.”
79
Further provisions with respect to
detention with the view of the possibility to expel rejected asylum seekers can
be found in the Danish Return Act (section 14(2)).
80
This framework is being
used for several groups: refugees who have had protection, while their case is
being reassessed for exclusion-grounds; foreign nationals with other grounds of
76 The explanatory memorandum on this legislation highlights that such a situation would appear if
several countries had in tandem begun to cease enforcing the Dublin rules, but does not specify the
minimum bar for the number of countries that would have to stop enforcing the Dublin agreement
in order to allow the Minister to take this measure. Udlændinge- og integrationsministeren (Inger
Støjberg), the Danish Parliament, “Forslag til Lov om ændring af udlændingeloven,” 15 March 2017.
77 Erik Holstein, “Mette Frederiksen har fået europæisk skyts til sin udlændingepolitik - Altinget - Alt
om politik: altinget.dk,” Altinget, 9 May 2023. It could mean that Denmark can no longer return
asylum-seekers that have travelled through other Dublin countries, or who have been apprehended
while traveling into Denmark. This is indeed mentioned in the explanatory memorandum but
is considered a logical consequence of the fact that the emergency measure would only be
introduced if the agreement in itself has ceased to function. See also Louise Halleskov, “Kort om
“asylnødbremsen”, Rule of Law, 2 March 2020.
78 Anders Sønderup ”Hvordan trækker man nødbremsen, og laver en grænse de uønskede ikke kan
krydse? | Nordjyske.dk,” Nordjyske, 4 March 2020.
79 Global Detention Project, Country Report: Immigration Detention in Denmark: Where officials
cheer the deprivation of liberty of ‘rejected asylum seekers, May 2018, p. 7.
80 Ministry of Immigration and Integration, Return Act (in Danish), “Bekendtgørelse af lov om
hjemrejse for udlændinge uden lovligt ophold.”
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residence, who apply for asylum after an expulsion; and for asylum seekers, who
are criminally convicted and expelled before or while their asylum case is being
processed. This also includes those who try to travel to or through Denmark using
false documents, and who are not deemed to be covered by the protection in
theRefugee Convention art. 31(1).
Time served due to convictions takes place in many different detentions and
prison facilities. Asylum-seekers detained under the Aliens Act are placed at
the Ellebaek Immigration Centre or at Nykøbing Falster Holding Center. In
order to comply with the EU Returns Directive, Denmark introduced a time limit
on immigration detention of initially maximum six months. In case of refusal of
cooperation of the detainee, the court can extend this for another 12months.
81
In2018, the average stay lasted 32 days.
82
In Denmark the limitations to
detention under Dublin also apply to Dublin cases. Once in detention, the
detainee receives free legal aid.
83
DIS’s yearly statistical overview does not
include numbers regarding immigration-related detention.
84
The Danish Prison
and Probation Service however does provide these numbers, stating that in 2021
787 detained asylum seekers were imprisoned, of which 90% were men.
85
After a visit to Denmark in 2019, the European Committee for the Prevention of
Torture (CPT) called the Danish migration detention center Ellebaek out for being
“among the worst of its kind in Europe.”
86
The CPT was critically concerned about
the fact that migrants in detention centers were subject to prison-like (material)
conditions and were bound to prison rules. Degrading treatment and incidents
81 This is in line with article 15 of the EU Return Directive.
82 Council of Europe, Report to the Danish Government on the visit to Denmark carried out by the
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT), 7 January 2020, p. 53.
83 Interview DRC d.d. 2 November 2023: DRC offers free legal aid and counselling, but detainees are
also provided with legal representation in the form of a lawyer that can represent them in court.
The possibility for detained asylum seekers to talk with DRC while in detention is regulated by the
section 37 d of the Danish Aliens Act.
84 Global Detention Project, Country Report: Immigration Detention in Denmark, May 2018, p. 13.
85 Kriminal Forsorgen, “Kriminalforsorgen statistik 2021,” 2021, p. 16
86 European Council on Refugees and Exile, “Denmark: Council of Europe shocked over conditions on
Danish Detention Centers and Threatens Legal Action,” 16 January 2020.
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of verbal abuse by the custodial staff was furthermore highlighted.
87
The Danish
Government responded that it planned some material renovation projects to its
detention centers, and that it continuously strives to uphold the liberty and rights
of foreign nationals in detention.
88
After having visited Denmark in June2023,
theCommissioner for Human Rights of the Council of Europe concluded that
while some material conditions had been improved at Ellebaek, prison-like
manner of operations was still of grave concern, including the use of disciplinary
solidarity confinement.
89
Covid-19 caseload
Between March and July 2020, Dublin transfers of asylum seekers were
suspended. Due to closed borders, a historically low number of asylum seekers
entered Denmark (1515). Any cases that did occur were carried out online.
90
87 Council of Europe, Report to the Danish Government on the visit to Denmark carried out by the
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT), 7 January 2020, p. 53-54.
88 Council of Europe, Response of the Danish Government to paragraph 117 of the report of the
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) on its visit to Denmark from 3 to 12 April 2019, 3 March 2020.
89 Dunja Mijatovic, Report following her visit to Denmark from 30 May to 2 June 2023, Commissioner
for Human Rights of the Council of Europe, Council of Europe, 25 October 2023.
90 European Commission, “Denmark: How has COVID-19 affected migrants?,” 20 November 2020.
20
4 Access and national
asylumprocedures
The Danish Asylum Procedure
Most asylum seekers arrive in Denmark without prior consent to enter the
territory, due to the difficulty of obtaining visa for humanitarian purposes.
91
In2002 Denmark abandoned the policy option of asylum on diplomatic posts.
92
Any foreign national who is in
93
or has entered Denmark, whether illegally or
with a visa, can apply for asylum. As stated in the paragraph on the applicable
international legal framework, the grounds for asylum are based on Denmark’s
international legal obligations.
94
Once in Denmark, a person who wants to apply for asylum has to register with
the (border)police or at Reception and Application Centre Sandholm in Allerød.
The practical and humanitarian work of the reception centre falls under the
Danish Red Cross, while the Danish police, the Danish Immigration Service, and
91 Danish visa rules are based on nationalities. Countries whose citizens must hold visas in order to
enter Denmark are divided into five main groups. Different guideline requirements for obtaining
a visa apply to each group and the groups are based on the overall risk of a citizen remaining
within the Schengen countries after the individual’s visa expires. See The Danish Immigration
Service; Seealso Michala Clante Bendixen “Hvor mange kommer, og hvorfra?,” Refugees DK,
29Septermber 2023.
92 See in this respect Gregor Noll, Jessica Fagerlund and Fabrice Liebaut, Study on the feasibility
of processing asylum claims outside the EU against the background of the Common European
Asylum System and the goal of a common asylum procedure, Danish Institute for Human Rights
andEuropean Commission, 2020.
93 This means that people already with a Danish residence permit, often based on family
reunification, can also apply for asylum, The Danish Immigration Service, “Adult Asylum Seeker –
Who can apply for asylum?”.
94 Danish immigration authorities can grant a temporary residence permit as a refugee in line with
three provisions of Article 7 of the Danish Aliens Act: 7.1) Convention status or K-status: meeting
the UN Refugee Convention’s definition of refugees, linked to fear of being persecuted for reasons
of race, religion, nationality, membership of a social group or political opinion. 7.2) subsidiary
protection status or B-status: due to risk of torture or inhumane treatment in the country of
origin, or 3) temporary protection status: the situation at the country of origin is characterized by
indiscriminate violence and attacks on civilians. See also Danish Refugee Council, “Getting Asylum
in Denmark.”
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the Danish Refugee Appeals board are in charge of the case management.
95
The initial phase of the procedure starts with registration of the asylum seeker
after which they will be issued a specific card which serves as a personal ID.
Usually they will after a couple of days be provided with accommodation in an
asylum reception center, determined by the DIS. Subsequently asylum seekers
are summoned by the DIS to fill out a written asylum form on the person’s name,
country of birth, residence, family, reasons for fleeing, fear of return, countries
travelled through etc, which can be done in any language. As soon as possible,
this is followed by the first personal interview, so-called “OM-samtale”, with
the DIS and an interpreter at Sandholm, to establish the travel route and to
determine the motivation for seeking asylum.
On the basis of the written application and the interview, and a search in the
common European fingerprint register, the DIS will determine whether the
application should be processed in Denmark or another country according to
the Dublin rules: this is solely an admissibility procedure without an examination
of the merits of the case (section 29a Aliens Act)
.
96
The Dublin procedure is laid
down in section 29a of the Aliens Act. If the asylum seeker has been granted
international protection in another Member State in the European Union, the DIS
can decide to reject the processing of the application in accordance with the
Danish Aliens Act section 29b. A decision to reject the processing of an asylum
application can be appealed to the Refugee Appeals Board. The appeal does not
have automatic suspensive effect, except for Dublin cases.
97
In 2022, a transfer decision to another Dublin agreement country was made in
472 asylum cases.
98
95 Danish Red Cross, “What we do in the asylum department.”
96 The Danish Immigration Service, Tal og fakta på udlændingeområdet 2021, 2021, p. 9.
97 EDAL, “Country Profile-Denmark,” 1 February 2018. See also for overviews of the Danish asylum
procedure: DRC, “The Danish Asylum System,” and DRC, “Overview of the Danish asylum
procedure,” January 2020.
98 The Danish Immigration Service, “Tal og fakta på udlændingeområdet 2022,” 2022, p. 9, Table A.2.
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Asylum Procedure
Registration + finger prints
with the police
Filling out asylum form
1. interview (OM)
with Immigration Service
Dublin Procedure
Another country
may be
responsible for
the case
Humanitarian
Residence Permit
may be an option,
processed by the
Integration
Ministry
Manifestly
Unfounded
Danish Refugee
Council can veto,
if so, the case
goes to Normal
Procedure
Appeal
Case goes
automatically to
the Refugee
Appeals Board,
state provides a
lawyer
Manifestly
Well-founded
Obvious reasons
for asylum
Normal Procedure
2. interview
Preliminary
rejection
Asylum
Asylum
Final rejection
Final rejection
Source: Refugees DK
If the DIS has established that the application is admissible and will be processed
in Denmark, the case can be decided to fall within the manifestly unfounded
procedure (ÅG), expedited manifestly unfounded (ÅGH), or manifestly founded
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procedure.
99
The latter is a faster procedure deemed for asylum applications with
a high eligibility rate, most often categorized on the basis of the country of origin
(such as the Syrians in 2015, before the policy change). These cases are often
processed within a few months. If the application is considered well-founded,
a residence permit with the according status is granted and a municipality will
be assigned as the responsible actor for the integration process of the refugee/
asylum permitholder.
In the ‘manifestly unfounded procedure’, applications are processed that are
likely to be rejected. This would be the case if an asylum seeker has no valid
grounds for seeking asylum, or if the applicant’s grounds for seeking asylum do
not warrant protection (article 53 Aliens act). If the application is likely to be
rejected in the ‘manifestly unfounded procedure’, the case will first be put to
the Danish Refugee Council (DRC).
100
The DRC has the opportunity to veto the
DIS’srejection following an interview with the applicant.
101
In 2022, the DRC did
not agree with the DIS’s decision of manifestly unfounded cases in about 11% of
the cases.
102
If that is the case the asylum seekers person receives the normal
right to appeal to the RAB. If the DRC agrees with the DIS, the rejection is final
without the possibility of appeal.
103
The expedited version of this procedure is based on a list of certain (safe)
countries of origin which hardly ever lead to asylum protection.
104
This list
of countries is regularly reviewed by both the DRC and the DIS. These cases
are often decided within a few days with no possibility for appeal to RAB.
However,involvement of DRC should ensure that the case is processed in
theright way.
99 The Danish Immigration Service, “Processing of an asylum case.”
100 See supra note 24 for an explanation of the role of this NGO.
101 Danish Refugee Council, “The Danish asylum procedure – phase 2,” December 2015.
102 The Danish Immigration Service, Tal og fakta på udlændingeområdet 2022, p. 69, attachment 3.
103 Ministry of Immigration and Integration, “International Migration Denmark, Report to OECD,”
November 2022, p. 38.
104 The Danish Immigration Service, “Processing of an asylum case,”; Countries on this list are Albania,
Australia, Bosnia and Herzegovina, Canada, Georgia (with the exception of LHBTI persons
and persons from Abkhazia and South-Ossetia), Iceland, Liechtenstein, Moldova, Mongolia,
Montenegro, New-Zealand, Northern Macedonia, Norway, Russia (with the exception of ethnic
Chechens, LHBTI persons, Russian Jews and persons who are politically active and mistreated
bythe authorities, Serbia, USA and Switzerland.
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Most of the asylum applications are on the individual merits assessed and
decided in the regular procedure. In 2022, Denmark received 4,597 asylum
applications
105
of which 30.52% (1,043) were granted residence permits.
106
Of thegranted residence permits issued in asylum cases, 509 were granted a
K-status, 71 a B-status, and 50 received temporary protection status (as Syrians
no longer receive that status).
107
Next to this asylum process based on international protection grounds, an
asylum seeker can apply for a residence permit on humanitarian grounds in
accordance with Article 9b.1 of the Danish Aliens Act. This can also be submitted
after a rejection of the asylum application by the DIS. As a separate procedure,
this application is submitted to and processed by the Ministry of Immigration
and Integration. The Danish parliament stated that a humanitarian residence
permit should be an exception and is only to be granted in very specific cases,
for example a severe deterioration of a serious handicap upon return to country
of origin.
108
Of note, this is very rarely granted, with only 2 cases leading to an
approved residence permit in 2022.
109
Formally, and in line with international refugee law, the burden of proof in
assessing the merits of the asylum claims is shared between the applicant and
the government, whereby the DIS in first instance and the Refugee Appeals
Board in the second has to motivate their assessment and decision. Information
is initially gathered through the written application and interviews with the
asylum seeker. The individuals’ credibility and individual risk is assessed, in
105 The Danish Immigration Service, “Tal og fakta på udlændingeområdet 2022,” 2022, p. 10,
tableA.1.2.
106 Ibid., table A.4.
107 Ibid.
108 The Danish Immigration Service, “Apply for residence permit on humanitarian grounds,”
August2018.
109 See supra note 93. Unaccompanied minors who seek asylum (UMAs) are considered a specifically
vulnerable group. Their asylum applications are in general processed within a short timeframe
and they are housed in special accommodation centers. If the minor is initially viewed as too
immature for the asylum process, the asylum procedure will be postponed until they are deemed
as mature enough to understand and handle the procedure (The Danish Immigration Service,
“Unaccompanied minor asylum seeker”) If there is doubt about the proclaimed age of the minor
asylum seeker – thought to be older than 18 years – an age survey, including medical assessment
will be conducted to get physical proof of their age. In 2022, the DIS conducted age tests, of which
64% were assessed to be older than 18 years.
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light of general ‘Country of Origin Information’ reports. The risk assessment in
practice has been subjected to criticism for being illogical and unpredictable
– specifically regarding the decision which protection status is granted in
which case. Forexample, in 2021, 34% of granted residence permits for Syrians
were based on Article 7(1)
110
, whereas in 2022, 62% of Syrians gained the same
status.
111
The credibility assessment has furthermore been declared too tough,
following its increasingly strict policies. In comparison to other EU countries, in
the first quarter of 2023, Denmark was 19
th
in the EU in terms of asylum seekers
per capita. This is a drastic drop to Denmark’s 5
th
place in 2014.
112
To acquire a permanent residence permit, strict requirements must be met,
alsoas a consequence of the recent national legislative asylum reform as part
of the paradigm shift. The most important preconditions are that a person has
legally resided in Denmark for at least 8 years, whereby the period during the
asylum process does not count, passing the Danish 2 language test, and having
been in regular full-time employment for at least 3.5 years.
113
Accommodation
Depending on the type and/or phase of the procedure, asylum seekers are
transferred to a reception center. Upon arrival, applicants stay in the Sandholm
center. Dublin claimants often stay in Sjælsmark which is a return centre run by
the Prison and Probation Service until they are transferred. During the asylum
procedure asylum seekers reside in one of the accommodation centers which are
mostly in Jutland.
114
The DIS is responsible for providing and operating reception and accommodation
centers for asylum seekers and irregular migrants based on the Danish Aliens Act
110 The Danish Immigration Service, “Tal og fakta på udlændingeområdet 2021,” 2021, p. 67,
attachment 3.
111 The Danish Immigration Service, “Tal og fakta på udlændingeområdet 2022,” 2022, p. 69,
attachment 3.
112 Bleona Restelica, “Denmark registering fewer asylum seekers than most other EU member states,”
18 April, 2023.
113 Ministry of Immigration and Integration, “International Migration Denmark, Report to OECD,”
November 2022, p. 52.
114 After rejection of a claim, and when considered not cooperative with respect to return to the
country of origin, rejected asylum seekers are moved to return and deportation centre Avnstrup
(families) or Sjælsmark or Kærshovedgård. Ellebæk is a closed center with the aim of forced return
(‘motivational measure’). See also under ‘return’.
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section 42 a, subsection 5. However, in practice about half the accommodation
centers are run by the Danish Red Cross, and the rest by municipalities.
115
Services such as a basic cash allowance, healthcare, education for adults and
children, accommodation, and clothing packages are provided for (DIS) during
the asylum procedure, unless the asylum seeker has sufficient own means.
116
Based on the ‘jewelry law’, asylum seekers must inform the authorities upon
arrival if they carry possessions worthy of 10.000 Danish kroner (1344 euro’s).
117
If this is the case, these valuables will be seized to cover the accommodation
expenses.
Accommodation centers are open centers, with security control for visitors.
All adult asylum seekers must enter a personalized contract with the
accommodation center they have been assigned to. This agreement includes
the context of daily tasks the asylum seeker is required to do, such as cleaning.
Thematerial rights can be diminished or revoked in case of non-compliance with
the contract, or in case of any other kind of misbehavior.
Rooms and kitchen are often shared. If the application case will be processed
in Denmark, the asylum seeker has to complete introductory basic Danish
language and Danish cultural and social conditions courses.
118
Accommodation
centers have ‘in-house activities’ and “out-of-house activities” such as unpaid
job-training programs.
119
However in recent years, the centers have been moved
more and more to rather isolated and thinly populated areas, which makes it
increasingly difficult for asylum seekers to connect with Danish society and to
keep themselves sufficiently occupied. In practice, asylum seekers often have
to move from one center to the other, which is problematic, e.g. schooling for
children, medical care, access to psychologists etc.
120
115 Ministry of Immigration and Integration, “International Migration Denmark, Report to OECD, 2022,
p. 38. Also, possibility for private accommodation under certain rules approved by DIS, but is not
often used.
116 The Danish Immigration Service, Conditions for Asylum Seekers.
117 See paragraph ‘setting the scene’.
118 Ministry of Immigration and Integration, “International Migration Denmark, Report to OECD,” p.40.
119 Ministry of Immigration and Integration, “International Migration Denmark, Report to OECD,” p. 39.
120 Interview with DRC, 2 November 2023.
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Appeals procedure
The appeals system in Denmark is two-tiered, with the DIS being the first
responsible actor, and the Refugee Appeals Board (RAB - Flygtningenaevnet)
thesecond – the highest authority in asylum cases.
121
After a preliminary rejection, the case is automatically referred to and appealed
to the RAB for a second instance review.
122
At the same time the asylum seeker is
given written notice of the first instance rejection and is invited for an interview
with the Danish Return Agency. This interview is referred to as a ‘think pause’ that
aims to inform the asylum seeker about the chances of receiving asylum and to
offer financial return support instead of right to appeal.
123
If the asylum seeker
does not wish to withdraw the claim, the State will automatically appoint and pay
for a lawyer and translator (decided by the appointed lawyer).
124
The asylum seeker has the right to stay in Denmark until the outcome of the
case. The oral appeal board hearing is generally scheduled within a few months.
InDublin cases there is usually only a written procedure, during which it is
difficult in practice to get cases overturned.
125
The review process consists of
three board members; the chairman – who must be an appointed judge, one
appointed member by the Ministry of Refugee, Immigration and Integration
Affairs, and one appointed member from the Council of the Danish Bar and Law
Society.
126
Any decision taken by the RAB on whether to reverse the decision of
the DIS or to reject the asylum application is final. In 2022, the cumulative waiting
time for the cases was 405 days.
127
In the same year, the RAB reversed 31,48% of
the DIS’s decisions.
128
121 Danish Refugee Council, “Stakeholders in the Danish asylum system,” See on the working of the
RAB: Jens Vedsted-Hansen, “Flygtningenævnet er blevet kompromitteret under paradigmeskiftets
krydspres,” Information, 27 September 2023.
122 Danish Refugee Council, “The Danish asylum procedure - What happens If asylum is rejected?”.
123 Interview DRC d.d. 2 November 2023: According to the Danish Return Agency about 10% of the
asylum seekers accepted the financial offer and withdraw their claim in Spring 2023.
124 Denmark does not provide for legal representation in the first instance. There is a right to get free
legal counselling through DRC, but there is still risk that mistakes are made in the first instance
procedure. See interview DRC d.d. 2 November 2023.
125 Interview DRC d.d. 2 November 2023.
126 Asylum Appeal Board, “General Information regarding the Danish Refugee Appeals Board,”
19September 2017.
127 The Immigration Appeals Board, “The Immigration Appeals Board’s statistics in cases in 2022,”
28February 2023.
128 The Immigration Appeals Board, “The Immigration Appeals Board’s statistics in cases in 2022,”
28February 2023.
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A request can be made to reopen the asylum case after the final decision,
butonly when there are significant and radical changes with respect to the
situation in the country of origin, when there is new evidentiary material which
could not have been presented earlier, or if there is a new motive for asylum.
129
Inpractice, it takes a long time to get cases re-assessed, waiting times may run
up to a year.
130
Group-based protection policies
Soon after the Taliban took over in Afghanistan in 2021, Denmark evacuated
people that supported the Danish authorities such as former military
interpreters and employees at the embassy in Kabul in the country and offered
them temporary protection.
131
By 15 September, 1,038 local staff, translators,
NGOworkers and local staff working for international organizations were flown
over.
132
While most of these people were later resettled to the US,
133
256 Danish
temporary residence permits were granted to Afghans under the special act in
2021, and 593 in 2022.
134
Up until now, the ad hoc special regulation granted
protection for two years with no possibility of extension.
135
However, on 5 October
2023, the Danish government submitted a proposal for the extension of the
residence permits under the special law. The bill has yet to be adopted, but it is
expected to enter into force on 27 November 2023.
136
In February 2023, the Danish Refugee Board decided to extend protection under
Section 7(1) to all women and girls from Afghanistan based on their gender: prima
facie protection, which in this form is not implemented elsewhere in Europe.
137
This was applied to everyone in this category waiting for a decision, as well as
retrospectively for recently denied applications by reopening these cases.
138
129 Danish Refugee Council, “The Danish asylum procedure – phase 3.”
130 Information received by DRC.
131 Pursuant under the Special Act no. 2055 of 16 November 2021.
132 ECRE, Afghans seeking protection in Europe, December 2021, p. 7-8.
133 Jens Vedsted-Hansen, Refugees as future returnees? Anatomy of the ‘paradigm shift’ towards
temporary protection in Denmark, CMI, November 2022, p. 11.
134 Danish Immigration Service, “Tal og fakta på udlændingeområdet 2022,” 2023.
135 Ministry of Immigration and Integration, “International Migration Denmark, Report to OECD,” p. 8.
136 The Danish Immigration Service, Extension of residence permit under the special law for persons
who have assisted Danish authorities etc. in Afghanistan, 5 October 2023.
137 Flytningenvaevnet, Flygtningenævnet giver asyl til kvinder og piger fra Afghanistan, February
2023.
138 EUAA report 2023, p. 136.
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In the footsteps of the EU Directive on Temporary Protection by which Denmark is
not bound through its opt-out, Denmark introduced a special act in March2022,
which has granted all Ukrainian refugees, including dependent family members,
immediate residence permits for a period of two years.
139
This special act does
not apply to third country nationals not considered refugees, since they are
expected to return to their country of origin. Ukrainian nationals that have
received a residence permit elsewhere are not eligible for temporary protection
in Denmark either.
140
By November 2022, 31,000 residence permits were granted
under this special act.
141
Initially, most asylum seekers from Syria were granted protection, either
refugee status, subsidiary protection or temporary protection status. However,
in 2019 the Danish Government ‘reclassified’ Damascus as safe, and the
authorities started revoking or not renewing status for specific groups from
Syria. Over1000refugees from the Damascus region were informed that their
temporary asylum status was being reassessed. This will be discussed further
inthe next chapter, placing it in the context of the Danish paradigm shift.
Paradigm shift: temporary nature of protection
As a response to the higher number of foremost Syrians seeking asylum in 2015,
the Aliens Act was amended to introduce a new Section 7(3) for temporary
protection status. The goal was to further differentiate protection for refugees
fleeing due to the general situation of their country of origin and refugees who
were being individually persecuted.
142
As previously discussed in the section on
the political and social cultural context, the introduction of a general temporary
protection status and the rules of revocation shifted Danish asylum policy
towards an emphasis on returns and on a temporary nature of protection.
143
139 Extension of the Special Act until March 2025, Særloven for fordrevne fra Ukraine forlænges
med et år, 28 September 2023; Refugees DK, Information to and about refugees from the war in
Ukraine, 15 March 2022.
140 J. Vedsted-Hansen, Refugees as future returnees? Anatomy of the ‘paradigm shift’ towards
temporary protection in Denmark, CMI, November 2022, p. 11.
141 Ministry of Immigration and Integration, “International Migration Denmark, Report to OECD,” p. 42.
142 Nadja Filskov et al., You can never feel safe: an analysis of the due process challenges facing
refugees whose residence permits have been revoked, The Danish Institute for Human Rights,
2022, p. 20. See also Jens Vedsted-Hansen, CMI 2022-6.
143 Done through the Amending Act no. 153 of 18 February 2015 as from 14 November 2014.
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This shift was further solidified with the introduction of Section 19a of the Aliens
Act, which emphasized the temporary nature of granted residence permits.
144
The duration of protection depends on the type of status granted, with the DIS
being the responsible actor that automatically decides whether the residence
permit can be extended upon the expiration date. A residence permit based
on convention status (7(1) Aliens Act) is granted for 2 years, with the possibility
of extension for two years at a time. Status based on Article 7.2 and 7.3 of the
Aliens Act are initially granted for one-year, with the possibility of extension for
two-years at a time for the former, and one-year for the latter.
145
Whereas the
provision with respect to the duration of the refugee convention status would
be in violation of EU law (Qualification Directive), the articles with respect to
subsidiary protection are indeed aligned.
A clearer distinction was furthermore made regarding the conditions that
apply for revocation of status depending on the type of status initially granted.
Thegeneral rules for the revocation of residence permits are laid out in
Section19(1and 2-5) of the Aliens Act. Convention status, in accordance with
article 7(1), has the highest threshold of revocation, requiring ‘fundamental,
stable and durable changes in the country of origin.’
146
In contrast to this,
individual subsidiary protection and temporary protection status have much
lower requirements for cessation of status. For these forms of subsidiary
protection, durable change in the country of origin is not required. Rather,
revocation of status is possible for both, even when the general conditions of
the country of origin are “serious, fragile and unpredictable – as long as the
improvements cannot be considered ‘entirely temporary.’”
147
This does not apply
for refugees with a subsidiary protection status granted because of an individual
risk (article 7(2)). In similar fashion to the appeals procedure of the asylum
application, when the DIS revokes the residence permit, it is referred to the
Refugee Appeals Board for review. Lastly, Denmark’s international obligations
must not be violated regarding revocation decisions, such as Article 8 of
theECHR.
144 Filskov et al., You can never feel safe, p. 20.
145 Filskov et al., You can never feel safe, p. 21.
146 Filskov et al., You can never feel safe, p. 41. See also article 1(c) sub 5 Geneva Convention.
147 The Ministry of Justice, Bill No. 72 presented on 14 November 2014 regarding proposal for an act
amending the Aliens Act, Section 2.5.2.
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In certain cases, despite changes in the country of origin, the DIS can decide
to uphold and extend protection status. Set out in Section 26 of the Aliens Act,
this is the case, for example, for families with children under the age of 18 who
have a personal link to Denmark, or when the refugee has a spouse/cohabitating
partner or minor child living in Denmark who is at risk of persecution in his/her
home country.
148
However, following the 2019 amendments, this so-called criteria
for ‘assessment of attachment’ to Denmark is given les consideration in the
reassessed cases.
149
As duly noted, the current revocation legislation and practice differs from
theEUprovisions of duration and revocation of protection status, which is
legallypossible because of Denmark’s opt-out. While these changes are in line
with Denmark’s focus on the temporary nature of protection, refugees with
subsidiary- and temporary protection in Denmark are now significantly less
protected than elsewhere in the EU.
‘Project Damascus’ further exemplifies the ‘paradigm shift’. In February 2019,
the DIS started to review residence permits of Syrian refugees from Damascus,
and later also Rif-Damascus that were granted under Section 7 (2) and
Section7(3) Aliens act due to general conditions in Syria.
150
This review was
based on a RBA statement, only days after the necessary legislation passed
parliament, noting that the general situation in Syria had changed, and that
the risks of endangerment was reduced in certain areas. Since the summer of
2020, the Danish government holds the opinion that originating from the region
of Damascus alone, is no longer sufficient ground for a protection status.
151
Similarly, in 2023 the provinces Larakia and Rif-Damascus have been considered
safe enough for return. Those granted protection based on convention grounds
(article 7(1)) were exempted from this new policy.
152
If the DIS decides that the
ground for individual protection has ceased, the case is automatically referred to
148 The Danish Immigration Service, “Extension of a residence permit as a refugee or an ordinary
quota refugee,” 1 July 2019.
149 Filskov et al., You can never feel safe, p. 19.
150 Filskov et al., You can never feel safe, p. 30.
151 The decision that Damascus was considered sufficiently safe for return was heavenly criticized.
See for example Human Right Watch, “Denmark: Flawed COI reports lead to flawed refugee
policies,” 19 April 2021; UNHCR Northern Europe, “Recommendations to Denmark on strengthening
refugee protection,” 11 January 2021.
152 Vedsted-Hansen, Refugees as future returnees?, p. 11.
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the Appeals board.
153
Between February 2019 and May 2023, 2,155 cases have
been reassessed from people originating from Damascus city, Rif-Damascus
and Latakia.
154
Between June 2019 and December 2021, the Appeals Board
overturned 49% of the cases, upheld 37% and referred back to the first instance
in 14% of the cases.
155
These numbers highlight disparities of the decision made
between the DIS and the RAB. Currently, 371 statuses have been revoked,
forcing Syrians to return.
156
However, return remains impossible to effectuate
as Denmark has no diplomatic relationship with Syria and no means to enforce
those returns in practice. Following a Dutch Council of State ruling on not
transferring Syrians to Denmark under the Dublin agreement because of the risk
of indirect refoulement in 2022 , the Dutch government requested the Danish
government for more information on their return policy to Syria.
157
The Danish
authorities acknowledged that protection status could be revoked or denied in
Denmark for those Syrians who only invoke the general situation in Syria, but that
this was done with restraint as the security situation in Syria is still characterized
by arbitrariness and unpredictability. Also, there would not be forcible returns
to Syria, in light of foreign policy considerations: ‘a unilateral Danish policy on
forcible returns to Syria could be taken as a legitimization of the Syrian regime’.
158
The result is that Syrians remain rightless and stuck in Denmark, often in
closed centres.
159
They are in fact in a legal limbo, with no durable solution or
perspective of building up their lives again in sight. Denmark has taken a unique
and highly criticized position on this in the EU. And it is foremost a clear signal
that the paradigm-shift has perhaps provided Denmark with a tough immigration
image, but substantially its policies have thus far failed.
153 Johannes BirkebaekandNikolaj Skydsgaard, “Denmark deems Syrian province safe for returning
refugees, worrying UNHCR,” Reuters, 17 march 2023; Vedsted-Hansen, Refugees as future
returnees?, November 2022, p. 27.
154 Ministry of Immigration and Integration, “Udlændinge- og Integrationsudvalget 2022-23,”
22May2023.
155 Vedsted-Hansen, Refugees as future returnees?, November 2022, p. 27.
156 Ministry of Immigration and Integration, “Udlændinge- og Integrationsudvalget 2022-23,”, p. 3.
157 Parliamenty documents Kamerstukken II, nos. 30 573 and 19637, nr. 195, 7 November 2022.
158 See in this light also the critical position of EEAS: Josep Borrell, “The conditions are not met to
change the EU’s policy on Syria,” EEAS, 18 June 2023.
159 Elian Peliter and Jasmina Nielsen, These Refugees Can’t Stay in Denmark, but they can’t be sent
home, New York Times, 7 March 2022.
33
5 Extraterritorial access
toasylum
Legal Pathways: Resettlement
Denmark has a longstanding history when it comes to UNHCR resettlement
schemes. Resettlement through UNHCR is the only formal Danish legal protection
pathway: there are no other humanitarian admission programmes or protected
entry procedures.
Since 1978, Denmark used to resettle 1500 refugees over a three-year period.
Resettlement is explicitly laid down as a protection ground ‘tool’ in the Danish
Aliens Act (section 8). Until 2016, in collaboration with UNHCR, a delegation
from the DIS and the DRC selected individual refugees, often from 2-3 different
countries each year. After being interviewed and declared eligible for the
programme, the refugees receive basic information about Denmark and
subsequently an entry visa. Upon arrival, they are directly settled in municipalities.
Also with respect to resettlement, the Danish policy and practice became stricter
in recent years. In 2016, the parliament put a temporary stop to resettlement,
160
which became more definite in 2018 when legislation was passed to annul the
previous multi-annual agreement with UNHCR. The quota is currently determined
on a yearly basis by the Minister, and the number is depending on the total
spontaneous arriving asylum seekers in Denmark. Since then, there have been
very limited resettlement missions, and as of 2020 it only concerned refugees
who were residing in Rwanda (2020, 2021 and 2022), and thus linked to the MoU
with Rwanda (see following paragraph).
161
The Minister has set strict criteria on
the profile of refugees (women and children) and in practice the quotas do not get
filled. In the period from 2015 until now less than 1100 refugees were resettled.
162
160 See Ulrik Dahlin and Jesper Løvenbalk Hansen, “Danmark går enegang med stop for
kvoteflygtninge,” Information, 12 September 2017.
161 See Ministry of Immigration and Integration, “Danmark tager 200 kvoteflygtninge fra Rwanda,”
12August 2022.
162 In 2015: 580, 2016: 85, 2017-2019: 0. See the Danish Immigration Service, “Tal og fakta på
udlændingeområdet 2019,”. In 2020: 31, 2021: 197, 2022: 165, 2023: 0, See the Danish Immigration
Service, “Tal og fakta på udlændingeområdet 2022.”
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As part of the legislative ‘paradigm shift’ reform, also the residence permit issued
to resettled refugees is currently granted on a temporary basis for a period of
2years.
163
And since they can also be given subsidiary protection, with a lower
and more generalized revocation/cessation threshold, resettlement may thus
result in return. For example, 32 resettled refugees under section 8(2) have been
subject to cessation procedures due to an improvement of the general situation
in Somalia. This is at least at odds, but in fact in contradiction, with the concept
of resettlement as a ‘durable solution’ for refugees in need of protection.
164
UNHCR has called for the gradual increase of the Danish resettlement quota,
aswell as the continued introduction of complementary pathways.
165
Externalization of asylum procedures
As stated earlier, the focus, or ‘vision’ of Denmark on externalization of the
asylum procedure is nothing new. Being a frontrunner from the 1980’s,
166
regularly
addressing the issue at regional and international tables, it was in 2018 that the
concept got more concrete shape. Initiated by the Social Democrats, a policy
plan (‘platform’) was developed for a ‘new and fairer asylum system according to
familiar lines:
167
• spontaneous asylum would no longer be possible in Denmark;
• Denmark would establish a ‘reception center’ outside Europe preferably in
partnership with other EU states, where asylum seekers would be transferred
to;
• those asylum seekers found to be refugees would be further transferred to
UNHCR to receive international protection, either in a UN camp or locally in
the third country;
• and Denmark would offer resettlement places as an alternative to asylum.
163 L174: ‘for the purpose of temporary stay’. See also UNHCR, “Observations on the Proposed
Amendments to the Danish Aliens Legislation,” 18 January 2019.
164 Nikolas Feith Tan, “The End of Protection,” 2021, p. 80.
165 UNCHR, “Recommendations to Denmark on strengthening refugee protection in Denmark, Europe
and globally,” January 2021. See also UNHCR, “Preliminary Observations on the law proposal
2018,” 18 January 2019, with reference to the Global Compact on Refugees that Denmark has
committed to.
166 In Denmark, the 1980’ Aliens Act was promoted as the most humanitarian refugees act in the world
and some politicians have since used this as an argument to say that the Danes had been too
generous. See also Nordics Info, “Danish Immigration Policy 1970-1992.”
167 Nikolas Feith Tan, “The End of Protection,” 2021.
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As with previous similar ‘visions’, i.e. the United Kingdom in 2003, the idea
received limited support in de EU, and was declared ‘unrealistic’ by the European
Commission.
168
The Danish government consequently focussed on the legal
aspects and (im)possibilities of externalization and published a legal note on the
matter in January 2021.
169
Based on that note, Denmark passed in June 2021
a legislative amendment to its Aliens Act, allowing for the transfer of asylum
seekers to a third state outside the EU for processing the asylum claim, protection
in that state or return from there to the country of origin (section 29).
170
The
amendment entails that such transfers must take place under an international
agreement between Denmark and the third country and that asylum seekers
are to be transferred, unless it would be in breach of Denmark’s international
obligations.
171
This pre-condition follows clearly from the beforementioned
preparatory legal note, acknowledging that international obligations, such as
the non-refoulement principle and the right to family life, do indeed limit the
possibilities to transfer asylum seekers who are already on the territory and
within jurisdiction of the Danish authorities.
172
The new legislative amendment as tabled (L9226) provides for a framework for
the ‘externalisation model’ in three phases:
173
1. a pre-transfer ‘screening’ procedure in Denmark;
2. an asylum procedure in the third country with which the agreement is
concluded; and
3. for those recognized as refugees, protection in that third country.
The explanatory memorandum describes the first phase in some more detail,
with a two-instance individualized procedure (first the DIS, with an appeal to the
Refugee Appeals Board, see also under ‘national/territorial asylum) to assess
168 Nikolas Feith Tan, “The End of Protection,” 2021.
169 Danish Ministry of Immigration and Integration, “Juridisk analyse af mulighederne for overførsel
af asylansøgere til asylsagsbehandling i et tredjeland inden for rammerne af international ret,”
January 2021, p. 3.
170 See for a comprehensive legal assessment of this legislation: Nikolas Feith Tan and Jens Vedsted-
Hansen, 2021; Nikolas Feith Tan, “The End of Protection,” 2021; See also Chantal Da Silva,
Denmark passes a law to send its asylum seekers outside of Europe,” Euronews, 3 June 2021.
171 Lovforslag nr. L 226, 29 april 2021.
172 Danish Ministry of Immigration and Integration, “Juridisk analyse af mulighederne for overførsel
af asylansøgere til asylsagsbehandling i et tredjeland inden for rammerne af international ret,”
January 2021.
173 Nikolas Feith Tan, “The End of Protection,” 2021.
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whether the asylum seeker can lawfully be transferred to the third country.
Examples of persons exempted from transfer are nationals from the third state
itself, asylum seekers with family residing in Denmark and seriously ill persons.
With respect to the second phase, the amendment states that the third country
must have ratified and in fact respect the 1951 Refugee Convention and there
must be access to a sound asylum procedure. It does not go into further detail
on the minimum norms, protection standards, or legal rights for recognized
refugees, or rejected asylum seekers. In many respects, it left key details and
implementation questions unanswered.
174
For example, Denmark has thus far
not worked with a list with safe third countries. And how should the minimalistic
approach towards refugee rights in the explanatory memorandum be explained
(stating that the third country must in practice respect the prohibition of
non-refoulement in the Refugee Convention)? It is also not clear whether or
not Denmark remains responsible for the operationalization of the asylum
procedure in the third country, or that it will be the third country upon which that
responsibility will be transferred. A relevant question when it comes to jurisdiction
and legal accountability for the operation.
Another interesting legal question is related to the beforementioned ‘opt-out’
position of Denmark within the EU. From the parallel Dublin agreement between
Denmark and the EU, it follows that Denmark may not unilaterally enter into
agreements with third states that would alter the determination of responsibility
for asylum applications, unless there is agreement of the Community (article 5).
Generally spoken, the European Commission’s reaction to the whole idea was far
174 See also for a critical assessment of the externalization legislation: Danish Refugee Council,
“The Danish scheme for externalization is harmful to refugees and a threat to international
refugee cooperation,” 3 November 2022. ECRE, “Denmark: Parliament votes blindly on
externalising asylum procedure and protection obligations,” 11 June 2021; Martin Lemberg-
Pedersen, ZacharyWhyteand Ahlam Chemlali, “Denmark’s new externalization law: motives and
consequences,” Forced Migration Review.
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from positive.
175
On the other hand, the current discussion on asylum within the
EU as well as the interest of other countries in externalisation models may render
this less politically salient. From a legal point of view however, although it can be
argued based on European jurisprudence that the Dublin Regulation does not
prevent Member States (including Denmark) from transferring asylum seekers to
safe third countries, it is exactly that precondition that is relevant. Denmark is not
bound by the safe third country concept as laid down in the Asylum Procedures
Directive and could thus be expected to have more legal space to navigate due to
the absence of the connection criterium ex article 38 APD. However, it does apply
indirectly, because the Dublin Regulation refers to the concept as defined and
used by the Directive.
176
Currently, no reference in the Danish legislation is made
to the fact that the asylum seeker should have a meaningful connection with the
third country as a pre-condition for transfer.
177
Furthermore, to operationalize or implement this legislation in practice, it all
comes down to the conclusion of international agreements by Denmark with third
countries. Denmark has not yet made an agreement with a third country that
could lead to implementation of the law. The European Commission has repeated
this reply in several answers to the European Parliament after the amendments
to the Danish Aliens Act (e.g., in May 2021, July 2021 and September 2021) with
the addition that “To the Commission’s knowledge, no such agreement is yet
concluded. To assess whether the amended Act respects Denmark’s international
obligations, it is necessary to also examine the content of any such agreement.”
175 On 18 June 2021 Commissioner Ylva Johansson stated that “[t]he idea of a transfer of asylum-
seekers to third countries for processing and accommodation is contrary to the spirit of the Geneva
Convention. A system aiming for external processes outside the EU instead of protecting right
to apply for asylum in the EU would send a strong and wrong signal to the outer world: Europe is
disengaging.… External processing of asylum claims raises fundamental questions about both
access to asylum procedures and effective access to protection. It is not possible under existing
EU rules or proposals under the New Pact on Migration and Asylum. The Pact on Migration and
Asylum is based on the right to asylum as a fundamental right in the European Union, guaranteed
by the EU Charter.” See also Marie Moller Munksgaard, “The European Commission warns: As soon
as Denmark sends asylum seekers to Rwanda, there will be a legal aftermath,” Altinget; the Danish
Parliament, “Kritik af dansk lov om modtagecentre i udlandet forud for RIA-møde,” 7 June 2021.
176 See also Nikolas Feith Tan and Jens Vedsted-Hansen, “Denmark’s Legislation on Extraterritorial
Asylum in Light of International and EU Law,” EU Immigration and Asylum Law and Policy,
15November 2021.
177 See also on this matter Michael Hoppe, ‘Externalisierung oder der ‘Eine Ring’ für Europa (editorial)’
in ZAR (Zeitschrift fur Auslanderrecht und Auslanderpolitik), 10/2022, p. 342.
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The legal assessment by the Danish Ministry noted that Denmark’s obligations to
the EU are not considered to be an obstacle. The legal note does however point
to the risk for a potential exclusion from cooperation under the Dublin Regulation
when such an international agreement is indeed implemented.
178
If such an
agreement between Denmark and a third country is to be concluded, this will
probably be subject to parliamentary scrutiny and democratic control as it would
be considered a formal treaty, not a mere MoU.
In that respect it is relevant to point out that the MoU that was concluded
between Denmark and Rwanda
179
in September 2022 is of a different nature
than the one between the UK and Rwanda.
180
The Denmark- Rwanda MoU deals
with general migration cooperation. The dialogue between both countries
concerns support to the Emergency Transit Mechanism to Rwanda; development
cooperation, and new ideas on transferring asylum seekers from Denmark
to other countries.
181
This is in line with previous statements by the Danish
government that Denmark is committed to finding new and sustainable solutions
to the present migration and refugee challenges that affect countries of origin,
transit and destination […] It is also the vision of the Danish Government that
the processing of asylum applications should take place outside of the EU in
order to break the negative incentive structure of the present asylum system.
182
Howeverno such model is currently in sight. In fact, the current government
178 Danish Ministry of Immigration and Integration, “Juridisk analyse af mulighederne for overførsel
af asylansøgere til asylsagsbehandling i et tredjeland inden for rammerne af international ret,”
January 2021.
179 Although the the Organisation of the African Union issued a strong statement in response to the
Danish legislative amendment, highly condemning the outsourcing of responsibility for refugee
protection, Rwanda is actively seeking partnerships with European countries.
180 UK Home Office, “Memorandum of Understanding between the government of the United Kingdom
of Great Britain and Northern Ireland and the government of the Republic of Rwanda for the
provision of an asylum partnership arrangement,” 14 April 2022.
181 Denmark had no previous development relation with Rwanda, however according to the Danish
project office in Kigali a programme is being set up with a budget of 11 million euro for development
goals, 10 million euro for climate adaptation and 6 million for a migration partnership aimed
at strengthening protection capacity for refugees (Congolese and Burundians) in the region.
See Monika Sie Dhian Ho and Francesco Mascini, “Dealen met Rwanda,” Clingendael Institute,
30October 2023, p. 14.
182 Ministry of Foreign Affairs and the Ministry of Immigration and Integration of the Kingdom of
Denmark & the Ministry of Foreign Affairs and International Cooperation of the Republic of
Rwanda, “Memorandum of understanding (…) regarding cooperation on asylum and migration
issues”, April 2021.
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coalition declared in their trilateral agreement that they seek multilateral
approaches on asylum and migration issues.
183
Therefore, an ‘alleingang’ on
externalization, without the support and cooperation of a group of likeminded in
the EU, and outside their standing legal obligations does not seem to be the path
currently followed by the Danish government. However, the Danish Prime Minister
and Minister for Immigration have both stated that Denmark is also willing to
establish bilateral schemes if necessary.
184
As the amendment yet only exists on
paper, it remains to be seen what will happen in practice.
183 The government position is to explore possibilities with other countries in the EU. See Prime
Minister’s Office, “Regeringsgrundlag 2022,” 14 December 2022. See also Ebad Ahmed, “Denmark
puts asylum center talks with Rwanda on back burner,” AA, 25 January 2023.
184 Anders Redder, “Centralt papir nævner en EU-løsning: Men ny regering taler åbent om
dansk enegang i Rwanda-sag,” in: Jyllands-Posten, 15 December 2022; Morten Frich et al.,
“Mette Frederiksen vil samle Danmark om en udlændingepolitik, som næppe er realistisk,”
6February2018.
40
6 Return in the context of
migration cooperation
In Europe, the frame that the Danish focus on return is effective persists.
Inpractice however, the government struggles, as any other country, with
expelling asylum seekers whose application has been rejected or whose permit
has been revoked.
Return Procedure
The Danish Return agency assumed its tasks as an agency under the Ministry of
Immigration and Integration in August 2020.
185
The Danish Refugee Council and
the Danish Red Cross are two official cooperation partners of the Return Agency.
In May 2023, the Danish Ministry of Immigration and Integration reported
that approximately 550 asylum seekers were waiting to be deported following
rejected asylum applications.
186
Those staying in Denmark without possibilities
for a legal stay are in the so called ‘exit position’. This group consists of those
rejected in the normal asylum procedure, the manifestly unfounded (expedited)
procedure, people affected by the Dublin Agreement that need to be sent
elsewhere, and other grounds for expulsion such as revocation of temporary
protection status. As discussed in the appeals section, first instance rejected
asylum seekers have the possibility to appeal to the RAB. Once the RAB has
made a final decision, the Danish Return Act states that rejected asylum seekers
have only 7 days to exit Denmark voluntarily. Before this time limit of departure,
the Danish Return Agency will contact the individual for a mandatory interview.
During this interview, duty to cooperate is highlighted, information is provided on
the next steps as well as entering a return contract with the Agency.
187
Denmark has introduced policies to convince rejected asylum seekers to return
home voluntarily These include pre-departure preparatory assistance, practical
185 The Danish Return Agency, “About Us.”
186 Arta Desku, “About 550 asylum seekers in Denmark waiting to be deported, with rejection rates at
the lowest since 2009,” Schengen Visa, 23 May 2023.
187 The Danish Return Agency, “The return contract”; DRC is also providing return and reintegration
support.
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operational (financial) assistance in returning, pre-departure counselling
services and reintegration assistance in their country of origin.
188
Those that
chose for voluntary return can stay at return centres, until their departure,
sometimes with a duty to report.
189
These return centers are very expensive
compared to regular open accommodation centers.
190
While legislation expects the rejected asylum-seeker to return voluntarily, reality
paints a different picture. After it has been established that a rejected asylum
seeker is not cooperating with return, something that is judged by the Danish
Return Agency with no chance to appeal, the case is subsequently transferred
to the Danish police.
191
Additionally, certain ‘motivational measures’ to return are
implemented.
192
These include staying in a deportation centre, a halt to (financial)
assistance for return, and denial of any further benefits given to those voluntarily
sent back. Additionally, the rejected asylum-seeker then risks forced return to his
or her home country.
193
Primary aim is to motivate people to leave, but in practice
it breaks them down.
194
Cooperation on Returns
Up until the end of the program in July 2022, Denmark was member of the
European Return and Reintegration Network (ERRIN) through which cooperation
on returns is arranged with countries like Iraq, sharing identification documents
and providing travel visas.
Furthermore, DRC is part of the European Reintegration Support Organisations
(ERSO) network which consists of European NGOs working with repatriation
counselling and reintegration support. ERSO cooperates with several
reintegration partners. DRC can facilitate reintegration support through these
reintegration partners for people who accept to return. The Danish authorities
will ask DRC to facilitate reintegration support through a local reintegration
188 Ministry of Immigration and Integration, International migration – Denmark: report to OECD,
December 2021. p. 62-63.
189 The Danish Immigration Service, “Return Centre.”
190 Interview DRC d.d. 2 November 2023.
191 DRC, “The Danish Asylum procedure phase 3 – What happens if you do not leave voluntarily?”
192 DRC, “The Danish Asylum procedure phase 3 – What happens if you do not leave voluntarily?”
193 The Danish Ombudsman monitors forced deportations.
194 Interview DRC d.d. 2 November 2023.
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Shifting the paradigm, fromopt-out to all out? | Clingendael Report, February 2024
partner, if the Danish authorities do not have other access to cooperation with a
reintegration partner in the relevant country.
195
Forced return is, when possible, planned with the country of origin for
readmission and reintegration arrangements.
196
However, the case of Syrian
refugees who have had their status revoked or not extended exemplifies the
obstacles and challenges in practice. As Denmark does not have any diplomatic
relations with Syria, it lacks the capability to carry out these returns leading to
a ‘de facto non-enforcement’ of the duty to leave. This is the result of the formal
decision of the government not to engage in such relations with Assad’s regime,
leaving Syrian refugees in deportation centres with minimal facilities.
197
Some
of these refugees decide to either live in irregular accommodation situations or
move to neighbouring countries such as Germany, Sweden or the Netherlands.
198
Currently, the question rises whether or not these asylum seekers are subject to
indirect refoulement when sent back to Denmark under the Dublin regulation,
once they ask for protection elsewhere in the EU after having their permit
revoked.
199
195 DRC, “Countries with reintegration partners.”
196 UN Migration Network, “Status on the implementation of GCM – Danish contribution.”
197 Jens Vedsted-Hansen 2022, p. 35.
198 Jens Vedsted-Hansen 2022, p. 35.
199 See earlier in this report under ‘international legal framework’.
43
7 Statistics
The number of first asylum applications in Denmark has been steadily decreasing
since 2015 when over 21.000 people applied for asylum, foremost from Syria.
Inthe years that followed, the number of asylum seekers decreased significantly,
with a low point of 1515 in 2020 (Covid 19) and counted 4600 in 2022.
200
Number of asylum seekers from 2002 – 2022
.
21.316
.
.
.





















1.515
4.597
200 Einar H. Dyvik, “Number of asylum seekers in Denmark from 2012 to 2022,” Statista.
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Shifting the paradigm, fromopt-out to all out? | Clingendael Report, February 2024
Asylum applications
Number of asylum applications in Denmark
Nationality 2018 2019 2020 2021 2022
Ukraine 50 36 20 25 2.070
Afghanistan 115 90 69 557 379
Syria 604 493 344 325 379
Eritrea 680 486 170 379 199
Iran 195 135 86 67 123
Russia 89 72 32 17 110
Morocco 181 157 103 67 109
Iraq 119 121 61 63 103
Georgia 402 66 38 52 95
Belarus 37 33 19 27 94
Stateless* 149 204 88 65 82
Turkey 27 25 35 36 61
Nigeria 28 20 15 21 51
Uzbekistan 5 1 1 0 45
Somalia 106 166 43 40 43
Others 772 611 391 358 654
Total 3.559 2.716 1.515 2.099 4.597
* Including stateless Palestinians.
Number of asylum applications in Denmark from 2018 – 2022:
Source: Danish Immigration Service
The main countries of origin during the last five years are Syria, Afghanistan
and Eritrea. As is the case in more European countries, due to ever-changing
(country-specific) asylum policies the eligibility rates in Denmark fluctuate.
In2015 it reached a record high of 85%, in 2020 it dropped to 44%, and in 2022 it
was 59%. During the first 4 months of 2023, 76% of the applicants were granted
asylum in first instance.
201
This does not include appeals (second instance),
sotheactual recognition rate is higher.
201 Michala Clante Bendixen, “What are the chances of being granted asylum?,” Refugees DK.
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Shifting the paradigm, fromopt-out to all out? | Clingendael Report, February 2024
However, when addressing the statistics in more detail, it becomes clear that
the recognition rate of asylum applications of people immediately upon arrival is
much lower. So-called ‘remote registered’ (Syrians and Eritreans who came via
family reunification, evacuated Afghans with a high-risk profile who applied for
asylum at a later stage) form around half of the granted statuses.
As is mostly the case, the eligibility for asylum protection depends on where
the applicant is originating from. Syrians, Eritreans and Afghans are the largest
groups in the whole of Europe, also in Denmark. The recognition rate in the
first instance for Syrian nationals was 99% in 2016, 96% in 2017, 99% in 2018,
94% in 2019 and in 2020 it dropped to 88%. Very few applicants from so-called
safe countries arrive in Denmark in general, which explains for a large part the
relatively high recognition rate in Denmark compared to the EU on average.
202
Since 2016 it became more difficult for asylum seekers from Iraq, Iran, Somalia
and Afghanistan to gain protection, even more in Denmark than in the rest of
Europe.
203
In 2021 only 3% of the Afghans were granted asylum.
204
Recognition
rates of applications for family reunification also vary according to the country
oforigin.
205
In 2021, 2,511 people got a residence permit through family reunification.
Thisnumber has been going down (see figure below).
206
202 In the EU, only 39% were granted asylum in 2022, but 50% received a permit if national forms of
protection such as humanitarian stay are included. They are rarely used in Denmark.
203 Michala Clante Bendixen, What are the chances of being granted asylum? Refugees DK.
204 After Taliban seized power, the rate for Afghans has risen to over 90%, but most of the Afghan
applicants in Denmark were evacuated and thus have a high-risk profile. Denmark has recently
decided to grant asylum to all women and girls from Afghanistan, which will obviously make the
rate stay high.
205 Statista, for 2018, depending on country: Eritrea 36%, Somalia 37%, Syria 54%, Iran 73%,
Thailand82%.
206 Ministry of Immigration and Integration, International Migration Denmark, Report to OECD,
November 2022, p. 14.
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Overview of all residence permits, etc. granted in Denmark, 2015–2021
*
(persons, percentage)
Category 2016 2017 2018 2019 2020 2021
Share
2021
Family reunification, etc. ** (B) 8,149 7,790 5,234 3,648 4,529 2,897 7%
Family reunification ** 7,679 7,015 4,601 3,222 4,012 2,511 6%
– of which spouses and co-
habitants
3,825 4,127 3,225 2,206 2,862 1,947 5%
– of which minor children 3,852 2,887 1,373 1,014 1,146 561 1%
Other residence cases
(incl.adoption)
470 775 633 426 517 384 1%
Number of positive decisions on family reunification 2015–2021
*
Category 2015 2016 2017 2018 2019 2020 2021*
Spouses and cohabitants (A) 4,996 3,624 3,927 2,959 1,908 2,592 1,596
– of refugees in Denmark 2,575 1,425 1,156 493 356 480 249
– of other immigrants in
Denmark
228 201 256 268 219 302 181
– of which Danish/Nordic
nationals in Denmark
2,193 1,998 2,515 2,198 1,333 1,810 1,166
Family reunification according
to the EU rules (B)
246 218 209 289 329 296 373
– of which spouses and
cohabitants (b)
237 201 200 266 298 270 351
– of which children 8 16 9 21 29 23 19
– of which parents/other
family
1 1 0 2 2 3 3
Spouses and cohabitants
(A+B)
5,233 3,826 4,127 3,255 2,206 2,862 1,947
Minors (C) 6,403 3,836 2,878 1,352 985 1,123 542
– children to refugees in
Denmark
5,517 2,887 2,109 643 425 430 162
– children to other than
refugees in Denmark
886 949 769 709 560 693 380
Total (A+B+C) 11,645 7,678 7,014 4,600 3,222 4,012 2,511
* 1 January - 31 August 2021
Source: The Danish Immigration Service
47
Conclusion
Denmark has opted out of the Common European Asylum System and is therefore
not bound by the larger part of the acquis. The opt-out was a deliberate and well-
considered decision at that time as the country was, and still is, keen on retaining
its national sovereignty in dealing with asylum and migration from a cost-benefit
ratio. At the same time, from the perspective of foreign policies and relations,
the Danish have always been a frontrunner with respect to the external EU
dimension of asylum and migration, as it was one of the first countries to develop
and discuss ideas on externalization of asylum procedures (1986). In more recent
years, the Danish asylum policy can be characterized as ‘shifting’ in various
ways. First, a shift towards growing and eventually broad national consensus on
restrictive migration policies: from the new Aliens Act of 2002 which is in contrast
to a rather liberal one of 1983 and instigated by terrorist threats, to the changes
in the political thinking of the Social-Democrats. This is indeed interesting as
the number of asylum seekers arriving in Denmark has always been relatively
low. Secondly, the so-called ‘paradigm shift’ after 2015: the prior legislative and
policy focus of permanent residence and integration changed to perspectives of
temporary protection, revocation of permits and return. And thirdly, thecurrent
government tends to shift from a somewhat unilateral approach vis-à-vis
externalization of national asylum procedures to increasingly multilateral EU
agreements with third countries.
What is the Danish situation with respect to access to asylum, and to what
extent is the opt-out position of Denmark impactful? The national Danish
asylum procedure is, in general terms, quite solid. As in the Netherlands, there
is a cooperation with NGO’s, such as the Danish Refugee Council (Asylum unit)
which has a special role in the asylum procedure, and also with the Danish Red
Cross on accommodation. The number of applications are rather low (4600 in
2022) and there are no significant backlogs, taken into account that there has
been capacity to start revocation procedures. Points of criticism on procedural
aspects relate mainly to the appeals procedure: amongst others, the limits to
appeal options and the fact that there are currently only three members, instead
of the previous five, resulting in lack of certain expertise/perspectives on case
law. Moreover, the appeals procedure lacks legal representation in various
stages of the proceedings. Because of the opt-out, Denmark can deviate from
the Asylum Procedures Directive as it is not formally bound by it. However, in
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Shifting the paradigm, fromopt-out to all out? | Clingendael Report, February 2024
general, Denmark’s asylum system is still rather closely aligned with the EU
acquis. It’s national temporary protection scheme for Ukrainian displaced is quite
similar to the EU TPD scheme. As Denmark is part of the Schengen and the Dublin
system, it must abide by similar standards based on the mutual trust principle
underlying these systems. Moreover, Denmark is a signatory to the Refugee
Convention, other UN human treaties and the ECHR, including the applicable
case law. Altogether, the international and regional legal framework applicable
to Denmark do not greatly differ from other EU Member States.
Notwithstanding this legal framework, the ‘paradigm shift’ brought about several
significant changes in the protection standards and focus of national asylum law
and policies: differentiation in protection status, lower revocation thresholds,
focus on temporary status, postponement of the right to family reunification,
and return centres where persons may need to stay with limited rights without
any perspective. Even the permits of resettled refugees (which is considered a
‘durable solution’) are nowadays temporary and can be revoked, something that
was greatly objected by UNHCR. There have been legal consequences: because
of Denmark’s asylum policy towards Syrians i.e. the revocation of permits and
expressing the intention of returning them to Syria led to hampering of the Dublin
transfer. The ECtHR furthermore made clear that it was not reasonable to let
asylum permit holders wait for three years for family reunification.
Next to this ‘paradigm shift’, the Danish government also persisted in its attempts
to externalize the asylum procedure to countries outside the EU. An amendment
to the Aliens Act in 2021, allows for the transfer of asylum seekers to a third state
outside the EU for processing the asylum claim, protection in that state, or return
from there to the country of origin (section 29). These transfers must take place
under an international agreement between Denmark and the third country and
asylum seekers are to be transferred unless it would be in breach of Denmark’s
international obligations. This still rather vague human right clause does indeed
acknowledge the legal lesson learned: that the possibilities to transfer asylum
seekers who are already on the territory and within jurisdiction of the Danish
authorities are, in fact, limited.
Is the Danish ‘model’ successful? The current number of asylum seekers is
obviously lower than in 2015. However, this is the case in (almost) all EU countries.
In Denmark the applicants more than doubled in 2022 (4600) in comparison to
2010 (2100). The focus on re-assessed protection needs, revocation and return
have clearly failed. Out of 30.000 Syrians in Denmark, only 1200 cases were
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Shifting the paradigm, fromopt-out to all out? | Clingendael Report, February 2024
re-assessed, only a few hundred were revoked, yet no one has been returned.
Instead, they are still in legal limbo in Denmark due to the absence of diplomatic
relations with Syria. The only controlled and regularized way to receive persons
in need of protection on Danish territory is used increasingly less. Currently, the
Danish externalization law only exists on paper: there is no concrete agreement
with a third state yet, and the operationalization of the law remains shrouded
with legal and practical uncertainties and questions.
The message sent by the Danish government to the outside world, however, is
quite clear-cut: if you come to Denmark, we will take your valuables and put you
on remote islands to await your return. If you are in need of protection, this is only
temporary, and you will be sent home as soon as possible. Or we will send you
to another part of the world let your asylum claim be processed. This direct and
harsh narrative of an unwelcoming state is a conscious political strategy choice.
Danish leaders have repeatedly stated: we want zero asylum seekers irregularly
on Danish territory.
Given the perceived failure of the paradigm shift and Denmark’s continued
inclination to limit territorial asylum as much as possible (reverting to zero), there
may be a heightened focus on and efforts towards externalizing the asylum
procedure. The current Danish government is seeking ‘external dimension’
solutions with like-minded EU countries, which fit the existing EU legal framework
of the safe third country concept, screening procedures at the borders, and
multilateral deals such as with Turkey.
The question is however, what will Denmark do when this approach will not
deliver any desired result in the near future? What if Denmark leaves their
multilateral approach, falls back to unilateral engagements, and goes ahead
with a partner like Rwanda, as the United Kingdom did as a non-EU Member
State. Will this amount to a de facto withdrawal of Denmark from the Dublin
system? What are the consequences for the current status aparte of Denmark
in the EU? What kind of national legislative and policy decisions will follow, and
how do they interact with the Danish ECHR obligations, to which it is, like thew
UK, signatory? After the UK Supreme Court ruling that the deal was unlawful due
to the risk of indirect refoulement,
207
the UK government has issued emergency
207 UK Supreme Court, R and others v. Secretary of State for the Home Department, no 2023/0093,
15November 2023.
50
Shifting the paradigm, fromopt-out to all out? | Clingendael Report, February 2024
legislation to fill that protection gap and determine Rwanda a safe third country
in order to go ahead with their flagship asylum policy. But as British media stated:
declaring a country safe is not the same as proving to a court that it genuinelyis.
Theoutcome will also depend on further ECtHR rulings on the legality of the
transfer agreement in the UK-Rwanda deal.
These are indeed untested legal waters, which are still quite muddy.
208
208 With reference to the title of the article by Daniel Thym (‘Muddy Waters: A guide to the legal
questions surrounding ‘pushbacks’ at the external borders at sea and at land,’ EU Migration Law
Blog, 6 July 2021.)
51
Acknowledgements
The authors would like to thank Nikolas Tan (Senior protection officer UNHCR
and former researcher to the Danish Human Rights Institute) and Camilla
Nygaard Bæhring (Senior legal advisor, Danish Refugee Council) for their time,
valuable information and peer review. Next to this, the author is grateful for
the Danish government senior officials useful insights on the current national
developments. Lastly, the authors would like to thank the Advisory Committee
consisting of NilsColeman, Elizabeth Collett, Madeline Garlick, Maarten den
Heijer, Nikolas Tan, and Huub Verbaten for their useful feedback and valuable
guidance throughout the writing process.