IFU, Alm.del - 2017-18 - Bilag 152: Orientering om den fremtidige procedure for behandlingen af visse ansøgninger om dansk indfødsret omfattet af statsløsekonventionen, fra udlændinge- og integrationsministeren

Indfødsretsudvalget 2017-18
IFU Alm.del Bilag 152
Offentligt

Brief

Processing of applications for Danish citizenship by naturalisation from appli-

cants covered by the UN Convention on the Reduction of Statelessness of 1961

(the 1961 Convention), and who PET (the Danish Security and Intelligence Ser-

vice) assesses as a potential threat to national security, or who are charged or

indicted for offences against national security or a criminal offence that can

result in imprisonment of 5 years or more

1. Introduction and background

Under the 1961 Convention, Denmark is obliged to grant citizenship to persons

who are born in Denmark and covered by the 1961 Convention, provided that the

conditions of the convention are met. In principle, this also applies for persons

who the Danish Security and Intelligence Service (PET) assesses as a potential

threat to national security.

The government does not wish to grant Danish citizenship to stateless persons

covered by the 1961 Convention if PET assesses that the person in question is a

potential threat to national security, or if the person in question is currently

charged or indicted for offences against national security or a criminal offence

that can result in imprisonment of 5 years or more.

The government notes in this connection that the 1961 Convention does not in

itself oblige the contracting states to grant citizenship to an applicant covered by

the convention immediately upon the submitted application. In this regard, the

convention does not contain a requirement of case processing within a defined

time. Furthermore, in the assessment of the government, it would not contravene

the object and purpose of the 1961 Convention or the considerations on which

the Convention is based to postpone the assessment of whether an applicant is

entitled to the granting of Danish citizenship under the Convention, to the extent

that such postponement can be objectively justified.

Therefore, going forward, the government will postpone the processing of appli-

cations from stateless persons covered by the 1961 Convention for as long as PET

assesses that the applicant is a potential threat to national security, or as long as

the charge or indictment is upheld. The government will, every six months and on

16 August 2018

Indfødsret (Nationality Division)

Slotsholmsgade 10

DK-1216 Copenhagen K

Tel.

E-mail:

Web

CVR no.

Case no.

Akt-id

6198 4000

[email protected]

www.uim.dk

36977191

2018 - 1659

510273

Side

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IFU, Alm.del - 2017-18 - Bilag 152: Orientering om den fremtidige procedure for behandlingen af visse ansøgninger om dansk indfødsret omfattet af statsløsekonventionen, fra udlændinge- og integrationsministeren

its own initiative, in every single case ensure that there

is still an objectively justi-

fied basis for a postponement, in addition to other foreseen safeguards based on

existing oversight mechanisms.

It is the understanding of the government that the UNHCR concurs with the view

of the government that this new approach is in line with the 1961 Convention.

The a kg ou d fo the go e

in this brief.

e t’s app oa h to this issue is fu the des i ed

Section 2 of this brief contains a review of the Danish citizenship system. Section 3

contains a description of the mechanisms for oversight of PET. Section 4 presents

a e ie of De a k’s ele a t i te atio al o ligatio s elati g to itize ship.

Section 5 then provides a detailed explanation of how the government will now

handle cases of the above-mentioned nature, implementing the approach of

postponing the final consideration of whether citizenship is to be granted.

2. The Danish citizenship system

Pursuant to section 44 (1) of the Danish Constitution, no alien can obtain citizen-

ship by means other than law (naturalisation). Thus, the Danish Parliament de-

cides who is to be granted Danish citizenship.

The conditions for obtaining Danish citizenship by naturalisation are outlined in

Circular no. 10873 of 13 October 2015 on Naturalisation. Traditionally, the guide-

lines for naturalisation have been based on political agreements concluded by a

majority in the Parliament. The political agreement sets out the guidelines for the

drafting of a bill on the granting of citizenship. Deviation from these guidelines is

only permitted with the support of a parliamentary majority, which in practice

ea s a ajo it of the Da ish Pa lia e t’s Natu alisatio Co

ittee. Questio s

regarding dispensation from the provisions of the Circular and the interpretation

of matters of doubt are always submitted to the Committee. Dispensation can

o l e g a ted if a ajo it of the Co

ittee’s e e s ote i fa ou .

In relation to the processing of applications for naturalisation, the Nationality

Division of the Ministry of Immigration and Integration serves a secretariat func-

tion for the Danish Parliament (Naturalisation Committee), reviewing on behalf of

the Parliament whether applicants meet the conditions for obtaining Danish citi-

zenship outlined in the Circular. As with other matters regarding immigrants, this

form of case processing means that the minister does not deal with individual

cases, nor is the minister presented with briefs on practice or the like. The minis-

ter holds the political responsibilit

fo the offi e’s o k u de the Mi ist of

Immigration and Integration, but the Nationality Division has always performed a

dual role: it is an ordinary case processing office at the ministry, while also serving

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a secretariat function in relation to

the Da ish Pa lia e t’s Natu alisatio Com-

mittee.

Pursuant to the Circular, there are special cases in which an application for Danish

itize ship ust e su itted to the Da ish Pa lia e t’s Natu alisatio Co

it-

tee for consideration of dispensation from the applicable guidelines. The Danish

Pa lia e t’s Natu alisatio Co

ittee holds sole po e to de ide hethe a

applicant for Danish citizenship can be granted dispensation from one or more of

the conditions in the Circular.

Section 21 of the Circular prescribes that the cases of persons who are assessed as

a potential threat to national security must be submitted to the Naturalisation

Committee.

The Mi ist of I

ig atio a d I teg atio ’s su issio to the Da ish Pa lia-

e t’s Natu alisatio Co

ittee

does not include a recommendation regarding

the Co

ittee’s de isio o g a ti g dispe satio to the appli a t i uestio .

The only exception to this practice is in the case of persons assessed as a potential

threat to national security, in which case the submission includes a recommenda-

tion from the Minister of Justice suggesting exclusion for a specified period of

time, see below.

2.1. Persons who are assessed as a potential threat to national security

Prior to the proposal of a bill on the granting of citizenship, PET is notified of all

persons included in the bill so that PET can assess whether any of the included

persons are a potential threat to national security.

If PET assesses that a person is a potential threat to national security, the person

in question

–

on the recommendation of the Minister of Justice and after prior

su issio to the Da ish Pa lia e t’s Natu alisatio Co

ittee –

will typically be

removed from the bill.

In this process, the Ministry of Immigration and Integration receives notification

from the Ministry of Justice that a named person is assessed by PET as a potential

threat to national security. No detailed background for this assessment is included

in the notification.

On the basis of the information from the Ministry of Justice, the Ministry of Immi-

g atio a d I teg atio su its the ase to the Da ish Pa lia e t’s Natu alisatio

Committee with a recommendation to exclude the person in question from inclu-

sion in the bill on the granting of citizenship for a specified period of time. In prac-

tice, PET generally recommends exclusion of the applicant for a period of 5 years.

The case is submitted confidentially to the Committee and is not submitted with

the name, but only with information about nationality, place of birth, year of birth

and details about the issuance of a Danish residence permit.

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Cases in which a person is covered by the 1961 Convention and assessed by PET

as a potential threat to national security are also submitted to the Danish Parlia-

e t’s Natu alisatio Co

ittee fo the Co

ittee’s de isio o

hethe the

applicant will remain listed in the bill, irrespective of the assessment by PET that

the person in question is a potential threat to national security. The submission is

provided without a recommendation on exclusion from citizenship, as the Com-

mittee is informed of the relevant convention obligations.

3. Controls on the Danish Security and Intelligence Service (PET)

.1. Citize s’ a ess to i sight i to i for atio

Pursuant to section 12 (1) of the Danish Security and Intelligence Service Act, a

physical or legal person does not have the right to insight into information that

PET processes about said person or the right to insight into whether PET is pro-

cessing information about said person.

However, under section 12 (2) of the Danish Security and Intelligence Service Act,

PET may grant full or partial insight into information mentioned in section 12 (1)

of the Act, if exceptional circumstances justify such insight. The rejection of an

application for citizenship due to a threat assessment by PET will not in itself justi-

fy full or partial insight.

Additionally, section 13 (1) of the Danish Security and Intelligence Service Act

states that a physical or legal person can request that the Danish Intelligence

Oversight Board (the Oversight Board) investigate whether the service is pro-

cessing information about the person in question without justification. The Over-

sight Board ensures that this is not the case, and then informs the person in ques-

tion accordingly.

The procedural history of the Danish Security and Intelligence Service Act states

that the notification by the Oversight Board must only imply that no unjustified

processing of information about the person in question is taking place. Thus it

must not be expressly or implicitly stated that information has been processed or

that justified processing of information is taking place.

Section 13 (3) states that, if justified by exceptional circumstances, the Oversight

Board can order PET to grant full or partial insight into information mentioned in

section 12 (1). The order is legally binding for PET.

The procedural history further states that section 13 (2)

–

now section 13 (3)

–

the Danish Security and Intelligence Service Act is intended to serve as a safety

valve that supplements section 12 (2) of the Act. Furthermore, it also states that

the fact that PET has processed information about a person, etc. without justifica-

tion does not in itself constitute sufficient grounds for the Oversight Board to

order PET to grant insight into information about the person in question under

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the current section 13 (3). Regarding the nature of exceptional circumstances that

can justify an order to PET, refer to the explanatory memorandum on section 12

of the Danish Security and Intelligence Service Act.

3.2. The Danish Intelligence Oversight Board

The Danish Intelligence Oversight Board is a special independent monitoring body

that was established on 1 January 2014. It is stated in the Danish Security and

Intelligence Service Act that the president of the Oversight Board must be a judi-

cially appointed High Court Judge.

Acting in response to complaints or on its own initiative, the Oversight Board en-

sures that PET processes information about physical or legal persons in accord-

ance with the Danish Security and Intelligence Service Act and the rules issued

pursuant thereto, see section 18 of the Danish Security and Intelligence Service

Act.

The Oversight Board must ensure that PET complies with the rules of the Act on:

procurement of information, including gathering and collection;

internal processing of information, including deadlines for the deletion of

information;

transfer of information, including to the Danish Defence Intelligence Service

(FE) and to other Danish administrative authorities, private recipients, for-

eign authorities and international organisations; and

prohibition of processing information about physical persons residing in

Denmark solely on the basis of their legal political activity.

The Oversight Board thus inspects, among other things, whether PET is processing

information about a person without justification.

The task of the O e sight Boa d is to pe fo

he ks of the legalit of PET’s p

cessing of information about physical and legal persons in accordance with the

law. Thus the Oversight Board does not check whether PET performs its tasks in

an expedient manner, including how the service prioritises its operative and intel-

ligence resources, as this is based on a police assessment. Therefore, the Over-

sight

Boa d a ot e ie PET’s assess e t of hethe , fo e a ple, a pe so

constitutes a threat to national security, see chapters 12 and 13 of the Danish

Criminal Code. The Oversight Board can check whether the information that con-

stitutes the basis for the assessment has been processed in accordance with the

Danish Security and Intelligence Service Act.

The Oversight Board notifies the Minister of Justice of matters about which the

minister, in the view of the Oversight Board, should be aware. If, in exceptional

cases, PET decides not to follow a recommendation in a statement from the Over-

sight Board, see section 19 (1) of the Danish Security and Intelligence Service Act,

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PET must inform the Oversight Board accordingly and, without undue delay, sub-

mit the case to the Minister of Justice for a decision, see section 19 (2) and (3) of

the Danish Security and Intelligence Service Act.

The Oversight Board can demand that PET provide all information and all materi-

als of sig ifi a e fo the O e sight Boa d’s a ti ities,

see section 20 (1) of the

Danish Security and Intelligence Service Act. The Oversight Board can also require

written statements from PET regarding factual and legal matters of significance

fo the O e sight Boa d’s a ti ities, see se tio 0

of the

Danish Security and

Intelligence Service Act.

3.3. Oversight by the Danish Parliament

The Da ish Pa lia e t’s I tellige e Se i es Co

ittee ISC has the pa lia en-

tary insight into PET. The Committee must be informed of significant circumstanc-

es relating to: security, foreign policy issues, matters of importance to the activi-

ties of the intelligence services, and the content of certain guidelines on the activi-

ties of the intelligence services prior to the issuances of said guidelines.

ISC must be given a detailed annual orientation on the activities of PET. The gov-

ernment is obliged, upon request by ISC, to give the Committee information about

the activities of PET, including statistical information, and the Committee can re-

quire that the head of PET participate in Committee meetings. The annual report

that PET is required to issue pursuant to the Danish Security and Intelligence Ser-

vice Act must be submitted to the Committee before it is made public.

ISC can request that PET provide a report on matters pertaining to the activities of

PET, including the background for threat assessments that have resulted in the

rejection of applications for citizenship. However, the Committee does not have

the power to revise a threat assessment.

3.4. Oversight by the Ministry of Justice

The Ministry of Justice performs oversight of PET, and the intelligence service is

subject to the instructions of the minister. The head of PET reports directly to the

Minister of Justice, even though PET is organisationally under the auspices of the

Danish National Police.

In this regard, it is incumbent upon the head of PET to always keep the Ministry of

Justice directly informed about all matters of importance pertaining to the coun-

t ’s i te al se u it a d ge e all o all atte s of

importance within the activi-

ties of the intelligence service, including as regards all important individual cases,

see section 1 (1) (4) of the Danish Security and Intelligence Service Act.

Section 2 of the Danish Security and Intelligence Service Act further states that

PET must submit an annual report on its activities to the Minister of Justice and

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that this report must be made public. The report must provide general infor-

atio o PET’s o di a a ti ities a d ust i lude a ge e al e ie of PET’s

acti

ities du i g the ea , as ell as the se i e’s e o o i a d ad i ist ati e

circumstances.

. De

ark’s i ter atio al o ligatio s

4.1. UN Convention on the Reduction of Statelessness of 30 August 1961

In 1977, Denmark ratified the UN Convention on the Reduction of Statelessness of

30 August 1961 (the 1961 Convention).

Pursuant to article 1 of the 1961 Convention, member states are obliged to grant

citizenship to stateless persons who are born in the country, either at birth in

accordance with law, or by application. Article 1 (2) of the convention states that

a contracting state can make the granting of citizenship subject to one or more

listed conditions, including: that the person has always been stateless; that the

application eligibility window must start no later than the age of 18 and must end

no earlier than at the age of 21; that the person has had permanent residence for

a designated period of time not exceeding 5 years immediately prior to applica-

tion, or 10 years in total; and that the person has not been found guilty of an of-

fence against national security or sentenced to imprisonment of 5 years or more

for a criminal offence.

In accordance with the 1961 Convention and pursuant to the Circular on Naturali-

sation, applicants who were born stateless in Denmark are listed in a bill on the

granting of citizenship without being subject to the normal conditions for naturali-

sation. However, the following conditions must be met:

The applicant must have permanent residence in the country.

The application must be submitted from the age of 18 and before the age of

21.

The applicant must have had permanent residence in Denmark for 5 years

immediately before the submission of the application or 8 years in total.

The applicant must not have been found guilty of any offence against na-

tional security or sentenced to imprisonment of 5 years or more for a crim-

inal offence.

The applicant has always been stateless.

Furthermore, the applicant must submit a sworn declaration that the applicant

has not be found guilty of any offence against national security or sentenced to

imprisonment of 5 years or more for a criminal offence.

4.2. The European Convention on Nationality

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In 2002, Denmark ratified the European Convention on Nationality of 6 November

1997 (Convention on Nationality).

The Convention on Nationality compiles, supplements and expands upon the in-

te atio al o e tio s o itize ship that e isted at the ti e of the o e tio ’s

adoption, and its aims include the establishment of international principles and

standards in this area.

Pursuant to article 10 of the Convention on Nationality, all contracting states must

ensure that applications for acquisition of citizenship in the country are processed

within a reasonable time.

The explanatory report on the Convention on Nationality only provides limited

contributions to a detailed understanding of the scope of article 10. It follows

from the explanatory report that the determination of whether an application is

processed within a reasonable time must be made in the light of all relevant cir-

cumstances.

4.3. Access to judicial review

In its judgment of 13 September 2013, the Supreme Court stated that Denmark

has acceded to a number of international conventions that may affect the pro-

cessing of applications for citizenship or for the granting of citizenship. According

to the Supreme Court, these international obligations are to be complied with by

Parliament and its Naturalisation Committee when assessing if Danish citizenship

is to be granted to an applicant. An applicant who has not been included in a bill

on the granting of citizenship can thus have the courts review if these internation-

al obligations have been violated and if the applicant for that reason is entitled to

compensation.

5. The feasibility of postponing consideration of specific applications

5.1. Legal assessment

In the assessment of the Ministry of Immigration and Integration, the 1961 Con-

vention does not in itself oblige the contracting states to grant citizenship to an

applicant covered by the convention in immediate connection with the submitted

application. In this regard, the ministry notes that the convention does not con-

tain a requirement of case processing within a defined time.

Furthermore, in the assessment of the Ministry of Immigration and Integration, it

would not contravene the purpose of the 1961 Convention or the considerations

on which the convention is based to postpone the assessment of whether an ap-

plicant is entitled to the granting of Danish citizenship under the convention, to

the extent that such postponement can be objectively justified, for example on

the basis that the applicant in question is a potential threat to national security, or

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that the applicant is currently charged or indicted for offences against national

security or a criminal offence that may result in imprisonment of 5 years or more.

Such postponement of the assessment of whether an applicant is entitled to the

granting of Danish citizenship under the convention will not contravene the Con-

vention on Nationality as long as the specific case, following an overall assess-

ment, can be processed within a reasonable time. In this connection, it must be

dee ed of g eat i po ta e that a o t a ti g state’s i tellige e se i e should

have the opportunity to assess the applicant in question, and that such assess-

ment can be difficult and time consuming, given the general and complex nature

of existing threats. Furthermore, it must also be deemed of great importance that

a o t a ti g state’s poli e a d p ose uti g autho it should ha e the oppo tu it

to investigate and conduct a criminal case against such applicants before the con-

tracting state makes a decision to grant them citizenship.

It is on this background that the Ministry of Immigration and Integration assesses

that that it ill ot o t a e e De a k’s i te atio al o ligatio s, i ludi g the

1961 Convention, to postpone the assessment of whether an applicant covered by

the 1961 Convention is entitled to inclusion in a bill on the granting of citizenship

in cases where PET assesses that the applicant is a potential threat to national

security. Furthermore, it would not contravene the 1961 Convention to postpone

such cases if the applicant is currently charged with or indicted for offences

against national security or a criminal offence that can result in imprisonment of 5

years or more.

In the assessment of the Ministry of Immigration and Integration, the postpone-

ment of the assessment of whether an applicant is to be rejected or included in a

bill on the granting of citizenship can be extended for as long as PET assesses that

the applicant is a potential threat to national security, or as long as the charge or

indictment against the applicant is upheld. However, it is a requirement that the

postponement does not result in the applicant not receiving a decision within a

reasonable time.

5.2. New procedure for the processing of applications from stateless persons

covered by the 1961 Convention

Going forward, based on the above assessment

–

in cases where PET assesses that

an applicant covered by the 1961 Convention is a potential threat to national se-

curity, or in cases where the applicant is charged or indicted for offences against

national security or a criminal offence that can result in imprisonment of 5 years

o e, a d he e the appli a t othe ise eets the o e tio ’s o ditio s

for citizenship

–

the Ministry of Immigration and Integration will postpone the

processing of the case.

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In these cases, the Ministry of Immigration and Integration will not issue a rejec-

tio of the appli a t’s appli atio , a d, as a ge e al ule, the i ist

ill ot

submit the

appli atio to the Da ish Pa lia e t’s Natu alisatio Co

ittee.

To ensure that the necessary basis for postponement of the case remains in force

in instances where PET has assessed that the applicant is a potential threat to

national security, the Ministry of Immigration and Integration will every six

months,

and on its own initiative,

request a renewed PET assessment of the appli-

cant. This will be done in connection with the two semi-annual bills on the grant-

ing of citizenship, which are typically presented to the Danish Parliament in April

and October.

In cases where the applicant is charged or indicted for offences against national

security or a criminal offence that can result in imprisonment of 5 years or more,

the ministry will also,

on its own initiative,

confirm that the charge or indictment is

still in force.

If, based on a concrete assessment, the Ministry of Immigration and Integration

finds that a decision should be made in the case in view of the overall case pro-

cessing time, the ministry will

su it the ase to the Da ish Pa lia e t’s Natu al-

isation Committee without a recommendation, but with a report on the relevant

convention obligations.

In these cases, it will be up to the Danish Parliament to determine whether a deci-

sion is to be made in the case, or if the decision should remain postponed subject

to la ifi atio of the appli a t’s i u sta es.

In conclusion, it is important to emphasise that this new procedure only post-

pones the time at which a person will receive a decision regarding their applica-

tion for Danish citizenship. The postponement is carried out with reference to the

assessment that the applicant is a potential threat to national security, or the fact

that the applicant is charged or indicted for offences against national security or

an offence that can result in imprisonment of 5 years or more. Thus, the new pro-

cedure does not exclude stateless persons from applying for Danish citizenship

and it does not lead to rejections of applications of stateless persons in violation

of the provisions of the 1961 Convention. Finally, the applicants in question may

have the courts review whether the relevant international obligations have been

violated and whether the applicants for that reason are entitled to compensation.

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