Denmark tightens Aliens Act, returns refugees, but pushes EU to solve largest migration flow since 2016

The European Union (EU) is currently experiencing a migration flux reflecting 2016 levels, recording 330,000 new arrivals last year with no sign of decline. Meanwhile, EU countries have continuously failed to find and implement a common asylum system that can effectively manage this development and, instead, seen increasingly strict conditions for obtaining asylum in national policies across member states. Despite being the first signatory to the Refugee Convention in 1951, Denmark’s asylum discourse has moved towards temporary protection schemes, pushing the Convention to its limit and even dabbling with outsourcing asylum responsibilities altogether.

Between January and March this year, more than 400 migrants and refugees drowned in the Mediterranean. Frontex notes that 45 per cent of people are arriving via the Balkan countries from Syria, Afghanistan and Tunisia.

In response, several EU countries, including Estonia, Lithuania, Latvia, Slovakia, Austria, Malta, Greece and Denmark, have requested the EU to act immediately to deal with the influx in a recent letter to the Commission. As Spain gets the EU chairmanship at the end of June this year, Prime Minister Pedro Sanchez expects to mobilise resources and solidary burden-sharing across EU countries in order to deal with this influx. However, in recent years, European countries such as Denmark, which once spearheaded the obligation to protect refugees, now see an accelerated paradigm shift towards the temporisation of asylum and even attempts at outsourcing asylum responsibilities to third countries, such as Rwanda. Despite being tokenistic in intention, they have palpable consequences for the abilities of refugees to integrate and feel protected and continues the worrying trend towards criminalisation of migration (“crimmigration”) across the region.

The call in the letter to the EU is in line with the Danish Coalition’s Basis of Government, which was announced in December last year. Herein it states: “Denmark will work for a reform of the European asylum system that meets those goals and ensures that Denmark and Europe can have control over how many people come here, as this is a prerequisite for integration to be improved.”

According to the Basis of Government, the asylum system should respect international conventions such as the Human Rights Declaration and the Refugee Convention. However, already four months into the new government coalition, Immigration and Integration Rapporteur Kasper Sand Kjær announced that these frameworks, too, could be reviewed with a view to “stem the flow” of migration. “Too many people are obtaining refugee status that do not need it, and we want to tighten it – but the truth is, we can’t actually do that within the framework of the refugee convention. (…) We are at the margins of the Convention – as we should be!” Kjær stated in an interview with DR P1 Debat on 19 April. He emphasised the need to “challenge the interpretation and shaping of the Convention” with other EU countries because they may be “outdated”.

The paradigm shift towards the edge of the Convention 

So far, the main changes in the Danish Aliens Act were instigated by the relatively high number of asylum seekers coming to Denmark in 2015, many of them coming from Syria. The changes relate to the status that the Syrian refugees would receive in Denmark, and the other change was in relation to the cessation clause that determines when the refugees are considered to no longer have the need or right for protection. Some of these rules were elaborated and made even stricter in 2019.

In 2015, a new category of asylum status was created based on the general security situation in the country of origin. Whilst most Syrian refugees were granted refugee status according to the Refugee Convention because of personal risk of persecution, this new category of asylum seekers was assessed not to have an individual risk of persecution. However, they received a temporary protection status because of a situation of generalised violence, where civilians were deliberately targeted by all sides. This group is most at risk of having their residency permit withdrawn.

With this new status, Denmark had three bases for asylum status: (A) – the Refugee Convention status, (B) – normal subsidiary protection based on the European Convention and (C) – new subsidiary protection status based on the general situation of the country. The evaluation of the situation is based on the European Court for Human Rights’ list of criteria for when the situation of a country means that all people are at risk by being there.

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In 2019, there was a paradigm shift towards temporary protection, not only for group C, but for all refugees, including those recognised under the Refugee Convention. Under this paradigm, refugees will have their residency permit reviewed every two to three years. Meanwhile, the weighing of a refugee’s belonging and attachment to Denmark lost leverage vis-a-vis their country of origin. These are difficult evaluations to undertake, both assessing the risk of torture, violence and individual persecution, in addition to their level of integration into Danish society.

The Danish Immigration Services make overall assessments of areas and have concluded that certain areas have become “safe for return”, including Damascus (in 2019), Greater Damascus (2021), Latakia (2023) and now Tartoof. However, as immigration lawyers are still obliged to assess the individual’s risk of persecution in all cases, few have been overturned.

According to Niels-Erik Hansen, a Danish asylum attorney, the Human Rights Declaration is, so far, the solid legal foundation that prevents the withdrawal of residency permits for refugees and enables the Refugee Board to appeal these cases. He calls for the immediate end to this practice by the Danish Immigration Service in an interview with DR P1 Debat on 19 April.

“Despite reopening cases and reviewing them in great numbers, so far only very few have ended up getting their asylum claim overturned/residence permit revoked – however, any instance of the Danish authorities determining to remove this status from a Syrian is regrettable,” says Eva Singer, director of the Asylum Department at the Danish Refugee Council.

It is a highly expensive and bureaucratic praxis vis-a-vis its actual intended effect to prevent migration, which speaks to the tokenism of this manoeuvre. Needless to say, the reopening of cases after people have settled for over ten years, for example, because of a change in the basis of their initial protection, creates fear in society and serves no concrete purpose. The Danish Refugee Council told MEMO that as asylum becomes a temporary measure, refugees must re-apply and authorities then need to review cases, which causes a constant fear of being denied extension. This can be devastating for refugees and their ability to integrate and obtain employment. From an employer’s point of view, temporary protection can drain their professional investment and increase the fear of losing talent.

Ukrainian Refugees

Whilst some refugees, including Somalis and Syrians, have their case files reopened and re-considered, Ukrainian refugees have received fast-track services and settled status following their arrival. Ukrainian refugee statuses have been processed through a temporary protection directive – an EU law that was never enacted before. Ukrainians have generally not sought asylum because of the special law that provides them with temporary protection. They can enter the country legally because Ukrainians do not need a visa prior to arriving, which also means that Danish civil society can legally assist them, which is not the case for others, where entering and assisting refugees is considered a crime.

“With the arrival of Ukrainian refugees, the Danish public suddenly saw very clearly some of the inadequacies of the Danish asylum system,” says Singer. Some of these include the ability to work immediately after arriving rather than waiting around in the reception centres whilst going through the bureaucracy of immigration. Singer believes that the public attitude towards the refugees’ arrival makes a big difference in how well they integrate and that these are some of the learnings we want to promote to other groups as well.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.