UUI, Alm.del - 2007-08 (2. samling) - Bilag 94: Henvendelse af 28/4-08 fra SOS mod Racisme vedr. "asylområdet"

Lack of conformity between Danish asylum law and practice andinternational and European standards and obligations (rev.)The Danish Refugee Council very much appreciate the initiative of the European ParliamentCommittee on Civil Liberties, Justice and Home Affairs to organise a visit to Denmark in orderto ascertain the situation regarding the reception of asylum seekers in DenmarkA series of amendments to Danish asylum law since 2002 combined with what seems to be anincreasingly more restrictive interpretation and application of the relevant provisions by thecompetent Danish asylum authorities have led to a situation where the level of protection ofrefugees and others in a similar situation has been considerably lowered over the last six years.In a number of aspects current asylum policy and practice must be considered to be in violationof Denmark’s international obligations under,inter alia,the 1951 Refugee Convention, Article3 of the European Convention on Human Rights and the Convention against Torture as thesehave been interpreted and applied by, inter alia, the UNHCR and the European Court on HumanRights.Similarly, in a number of areas Danish standards are below the standards set by the relevantEuropean directives and regulations within this field.Themainfields of concern which at numerous occasions have been stressed by the DanishRefugee Council, UNHCR and other organisations and experts operating within this field arelisted below. The list is not exhaustive and should be complemented by the concerns raised anddocumented by Amnesty International and other organisations addressing this visit of the LIBECommittee to Denmark.

Interpretation and application of Article 1 A of the Refugee Convention andArticle 3 of the European Convention on Human Rights.Much points to the fact that the Danish Refugee Appeals Board applies a still more restrictiveand questionnable interpretation and application of Article 1 A of the Refugee Convention (cf.Section 7(1) of the Danish Aliens Act) and Article 3 of the European Convention on HumanRights (cf. Section 7(1) of the Danish Aliens Act), the result of which is that it has become verydifficult to obtain protection in Denmark.

This has become very apparent with regard to the Iraqi asylum cases where the Board – againstthe very explicit advice of UNHCR to Denmark – continues rejecting the majority of theasylum applications of Iraqi asylum seekers originating from Southern or Central Iraq. Therecognition rate for spontaneous applications lodged and determined in 2007 and 2008 seems toindicate a considerable raise in the number of Iraqis being granted protection. Those figures dohowever not present the very high rejection rate that applies to the high number of applicationswhich have been lodged for the reopening of “old” cases during the same period of time.Rejections are even applied in the cases of persons belonging to religious or ethnic minorities inCentral and Southern Iraq.In particular the Refugee Board’s requirement for a particular and “individualized” targettingseems to be in violation with Article 1A of the 1951 Convention and Article 3 of ECHR asthose provisions are being interpreted by both the doctrine, UNHCR-guidelines and the rulingsand case law of the European Court on Human Rights (e.g. in the case of Salah Sheekh v. TheNetherlands; Appl. No. 1948/04)

Subsidiary protectionIn 2002 the so-calledde factorefugee status concept was abolished and replaced by a morenarrowly defined protection status concept. Under section 7(2) of the Danish Aliens Actresidence permit on basis of (subsidiary) protection need is granted to an alien “... if the alienrisks the death penalty or being subjected to torture or inhuman or degrading or punishment incase of return to his country...”.According to the comments to the bill, the abolishment of thede facto-statuswas to haveconsequences for persons fleeing war and for persons who are traumatised due to previouspersecution, but who would not risk any persecution on return in the future.

Refugees fleeing war and war-like situationsWith direct reference to the comments to the bill abolishing thede facto-statusconcept, whichare meant to provide authoritative guidance to the Danish decisions-makers, the RefugeeAppeals Board, which is the final appeal instance in asylum cases, have rejected status andasylum to large groups of asylum seekers fleeing war and warlike situations, notably theSomalis and the Iraqis, and issued an order that they shall leave Denmark.It should in this regard be noted that neither the Danish Aliens Act nor practice provides forsubsidiary protection where serious harm consists of "serious and individual threat to acivilian's life or person by reason of indiscriminate violence in situations of international orinternal armed conflict" as defined under Article 15 (c) of the EU Qualification Directive.

This policy and practice combined with the above restrictive interpretation and application ofthe refugee definition of the 1951 Refugee Convention and of ECHR Article 3, which has beencritized by UNHCR , the Danish Refugee Council and other organisations for being at variancewith Denmarks international obligations, has resulted in a situation where hundreds of asylumapplications from Somalis originating from Central og South Somalia and Iraqis from Centraland Southern Iraq have been rejected.The Danish authorities have rejected to regulate their stay in Denmark despite the very clearand – as regard Iraqis – repeatedly updated recommendations from UNHCR that they berecognised as Convention refugees or, in the alternative, be granted subsidiary protection. Theresult and consequences of this strict policy is that they continue an irregulated and long stayunder poor conditions in Danish asylum centres, subjected to ongoing so-called motivatingmeasures (see below).

The consequences of the anti-terror legislation for the protection of refugees inDenmarkAs described by Amnesty International, “…an individual who faces expulsion on nationalsecurity grounds has no right to challenge that decision in a court, no right to be told on whatgrounds they are suspected of posing a threat to national security, and no right to know on whatgrounds it has been decided that they can safely be removed to the country to which they are tobe expelled. Nor has the lawyer of the person or the Danish Refugee Board the right tochallenge the decision and are not informed about the reasons behind the decision that is takenby the Danish Security and Intelligence Service (PET). The Refugee Board has to decidewhether this foreigner should be expelled or should be able to live in Denmark on a so called‘tolerated stay’, if the expulsion is considered to be a violation of Denmark’s internationalhuman rights obligations. The decision of the Board is however taken without their knowledgeof the foreigners’ risk of persecution, as they are not informed of why the Danish authoritiesconsider these persons to be a threat to the Danish security. ..” The Aliens Act excludes thegrant of residence permit in those situations.This legislation has been heavily criticized for not being in accordance with the rule of law andnot living up to fundamental principles for fair and efficient asylum procedures.

2001 and 2006 amendments to section 22ff of the Aliens Act have provided authority to expelasylum seekers and refugees who have committed less serious criminal activities and goesbeyond what is permitted by Article 32 of the 1951 Convention.UNHCR and other organisations have criticized the Danish legislation insofar as the expulsionof a refugee entails that s(he) loses his/her refugee status/recognition as a refugee in Denmark.The cessation of refugee status is exhaustively regulated by Article 1C of the 1951 Convention.This provision does not allow for cessation of refugee status on the ground that a refugee hascommitted common crimes such as those which according to the proposed Danish legislationcan lead to expulsion. Revocation, or withdrawal, of refugee status may be foreseen forrefugees who engage in conduct coming within the scope of Article 1F(a) or 1F(c), providedthat all the criteria for the application of either of these articles is met. While asylum could bewithdrawn in cases where Articles 32 and 33(2) are applicable, the termination of “refugeestatus” would be at variance with the 1951 Convention unless, as noted above, the criteria ofArticles 1C, 1F(a) and 1F(c) are met.Similarly the provisions on expulsion are at variance with article 12(2) of theEU QualificationDirective.

Exclusion from residence permit and “tolerated stay” to refugees who havereceived an expulsion orderMoreover, the legislation is problematic insofar as it implies that those refugees who receive anexpulsion order which - in keeping with the principle ofnon-refoulement– are not to beexecuted will merely be granted a so-calledtolerated stayin Denmark, which exludes thatperson from most of the basic rights provided for under the Refugee Convention Articles 2ff.While all refugees benefit from a number of core rights, additional entitlements accrue as afunction of the nature and the duration of the attachment to the asylum state. In accordance withthe preparatory works of the 1951 Refugee Convention it is the refugee’s de factocircumstances which determine which level of attachment is satisfied. Whereas a removal orderissued under a procedure that meets the requirements of the 1951 Convention may terminate thelawful stay and presence of the refugee, thesubsequentofficially tolerated, ongoing presence ina state party, whether or not there has been a formal declaration of for example a right ofresidence, will constitute alawful stayin the host state. It would thus seem that a so-calledtolerated stay in Denmark satisfies the criteria of attachment implied by the Convention’snotion of lawful stay which in turn entitles refugees to a standard of treatment which goes wellbeyond protection againstrefoulement.Excluding refugees in this situation from the rights andthe standard of treatment which are implied by a residence permit in accordance with Section 7or 8 of the Aliens Act, is therefore at variance with Denmark’s obligations under the 1951Convention.The provisions in section 10 of the Danish Aliens Act on exclusion from residence permit gomoreover beyond the wording of Article 14 (4) of theEU Qualification Directive,concerningrevocation etc.

At a press briefing on 5 May 2006, UNHCR stated:UNHCR regrets the adoption on Tuesday of new amendments to the DanishImmigration Act, which are not fully in line with the UN Refugee Convention.We have earlier submitted comments on the draft legislation.Under the Refugee Convention, there are clear restrictions on the expulsion ofrefugees, given the very serious consequences that they could face. We aretherefore concerned that the new Danish legislation allows for expulsion forlesser, albeit serious, offences, such as tax evasion and vandalism.Likewise, we are worried that according to the new Danish legislation, thedecision to expel a refugee also entails that he or she loses his or her refugeestatus, putting the person in a legal limbo.

Detention of asylum seekersUnder Sections 35, 36 and 37 of the Aliens Act asylum seekers and immigrants may bedetained for reasons mentioned in the paper presented to the Committee by AmnestyInternational. The reason mainly applied for detaining asylum seekers under the Aliens Act, isthat detention is necessary in order to ensure his or her presence for eventual deportation. Thereis no upper limit to the length of detention.The Danish Refugee Council shares the serious concerns expressed by Amnesty International.There is a serious concern that many detentions may in fact be violating Article 5 of theEuropean Convention on Human Rights insofar as they are either unnecessary as other lessradical measures would prove sufficient, or they are being unnecessarily prolonged.

Reception conditions (other than detention)Looked atin isolationthe reception conditions which are in general offered at the Danishasylum centres must – with some notable exceptions, see listing below – probably beconsidered to be in accordance with international and European norms regulating this field, andprobably also quite good compared to the situation in many other host countries. The receptionconditions offered are however only geared at stays for alimited period of time.There is a tension between the present reception conditions in Denmark andDirective 2003/9on minimum standards for the reception of asylum seekersin relation to the followingprovisions:EducationChildren who have reached the age of 17 are not granted access to the education system undersimilar conditions as nationals of Denmark. They may participate in a particular "introductionscheme" for adults and, under certain conditions in Danish or English language tuition as wellas introduction to Danish culture and social conditions.

Access to the labour marketAsylum seekers do not have access to the labour market in Denmark. The only exception whichmay (indirectly) occur in practice is if there is a general lack of qualified employees within acertain field of work in Denmark. An asylum seeker possessing those specific qualificationsmay lodge an application for - and be granted - work and residence permit on those grounds ifhe has been offered a job within this field.Special needs, General principle (Article 17)There are no provisions in Danish legislation to this account. On arrival, however, all asylumseekers undergo a medical check and, generally, medical or ordinary staff at the reception andaccommodation centres, will pay particular attention to the psychological and physical health ofvulnerable persons and seek to provide adequate counselling where possible. Rather thanhealing or rehabilitating, the treatment and counselling is merely sufficient to ease the situationof the particular person.Access to rehabilitation services for minors who are victims of abuse, etc. (Article 18 (2))Real rehabilitation services are not offered to these groups of minors. In particularunaccompanied minors will however receive relatively much attention and possibletreatment/counselling in this regard as they live in a centre specifically designated for minors,where there is both more staff and the staff is specifically trained to deal with children andinclude a trained psychologist. Minors who are accompanied will, on the other hand, in practicebe at risk of relative more neglect and of not being "seen" by staff at the ordinaryaccommodation centres.Treatment of torture victimsCounselling easing the symptoms and effects of torture and other serious acts of violence willto a certain - limited extent - be offered to asylum seekers, but real and necessary treatment willnormally not be offered to persons without proper residence permits.AppealsDecisions relating to reception conditions (all but detention) are mainly made by the DanishImmigration Service and may, in accordance with section 46 (2) of the Aliens Act be appealedto the Minister for Refugee, Immigration and Integration Affairs. In principle applicants mayfurther lodge an appeal within the ordinary court system. In practice, however, this never (orextremely rarely) happens both because asylum seekers are normally not informed about thispossibility and because, in practice, free legal aid would normally not be granted.

“Motivatingmeasures”The largest groups in this regard are the Somalis and the Iraqis. Currently 376 rejected Iraqiasylum seekers and 54 rejected asylum seekers from Southern and Central Somalia are in thissituation.It is not possible to remove them by force because Denmark has not yet obtained a readmissionagreement in this regard with their respective countries of origin. With regard to Iraq, the Iraqiauthorities therefore only accept the return of own citizens who consent to go back andvoluntarily sign applications for Iraqi travel documents. The only exception is Iraqis fromNorthern Iraq (KRG) with a criminal record in Denmark with regard to whom Denmark hasentered a readmission agreement with the KRG authorities on forcible return. With regard toSomalia, there are no authorities to negotiate an readmission agreement, which for Denmark isa prerequisite for forcible return as there is a clear policy against “dumbing” illegal immigrantsin their country of origin. In these cases, return is therefore only possible with the consent of thereturnee.In order to promote this consent, the Danish Aliens Act stipulates the application of so-called“motivating measures”,which among other things consist in deriving them of pocket money,removing them to the deportation centres of Sandholm and Avnstrup, requiring them to reportto the police once or twice a week, where they are requested to explain why they have not yetreturned to Iraq, etc.The aim of those measures is to indirectly force the rejectees to consent to go back. It ishowever acknowledged, even by the authorities, that those measures donothave any effect onthe numbers of voluntary returns. Many of especially the rejected Iraqi asylum seekers havebeen in Denmark since 2001 and spent most of the time as rejectees in the asylum centres.

ConclusionsIt is of serious concern when the authorities of a community founded on the rule of lawmake radical decisions whichbothare against the clear advice of UNHCR (who inaccordance with Article 35 of the 1951 Convention has the competence to supervise theapplication of the Convention),andwhich they know that they can not enforce.It is of serious concern when the Danish authorities subsequently - by means of issuingan expulsion order and applying motivating measures - in facttransferthe responsibilityfor implementation and enforcement of negative decisions, which they neither can norwill enforce, to the rejected Iraqi asylum seekers themselves.

It is furthermore of serious concern to the Danish Refugee Council that the long stay inasylum centres with status of rejected asylum seekers, subjected to the so-calledmotivating measures and without the right to work or to engage in other meaningfullactivities, have had serious consequences for the mental health of a large number ofasylum seekers, notably the Iraqis. The general reception conditions which, as statedabove, in isolation may be seen as generally acceptable for shorter stays turn intoundignified and humiliating treatment when being applied for years and years.The Danish authorities’ main argument for maintaining the position not to grantresidence permit to the rejectees is that they would be able to return to for example Iraqif they gave their consent to the issuing of an Iraqi travel document.When mirrored against the fact that UNHCR warns against return as this will involve arisk of persecution and against the fact that the authorities of the country of origin refuseto accept the return of rejectees who do not consent to go back, it becomes howeverapparent that this is indeed a “false” argument. The fear that the Iraqis have forreturning to Iraq - the strength of which is clearly documented by the fact that theychoose to remain in Denmark despite the application by the authorities of motivatingmeasures and despite the serious effects that the long stays have had on the health ofmany - is based on exactly the same factual circumstances and information that hasmade UNHCR to insist on the existence of protection needs for this group.The same concerns are valid with regard to refugees whose applications for asylum havebeen rejected or whose residence permits have been revoked on expulsion groundswhich go beyond what is permitted by Article 32 of the 1951 Convention. In keepingwith the principle ofnon-refoulement– the decisions on expulsion are not beingexecuted. Instead they will be granted a so-calledtolerated stayin Denmark, whichexcludes them from most of the basic rights provided for under the Refugee ConventionArticles 2ff.