UNHCR’s
comments on the Draft Bill on amending the Aliens Act, the Marriage Act and
other Acts (Ref: 2001/7310-81)
1. General
comments
At the
outset UNHCR wishes to underline that Denmark, as the first country to sign the
1951 UN Refugee Convention, has traditionally been one of Europe’s
strongest supporters of refugees.
UNHCR appreciates the challenges that Denmark faces, with significant
numbers of asylum seekers and the related expense of ensuring that their needs
are met and their applications for asylum are dealt with fairly. The Office welcomes the stated
commitment of the Government of Denmark in the context of this Draft Bill, to
adhere rigorously and fully to its various Convention obligations. The support UNHCR has enjoyed by
Denmark and the partnership over the past 50 years are exemplary. UNHCR hopes to continue to look to
Denmark as a country that leads by example, particularly within the context of
the EU harmonisation process. With
the assumption of the EU Presidency later this year, Denmark will play an
important role in negotiations on various EU Draft Directives on asylum. UNHCR is active in the EU harmonisation
process and our Office works very closely with the rotating Presidency. UNHCR looks forward to close
collaboration with the upcoming Danish Presidency later this year.
By way of a
further initial observation, the Draft Bill on amending the Aliens Act, the
Marriage Act and other Acts, which we understand was formulated
in close reference to the policy document ‘A New Policy for
Foreigners’, gives rise to an overall concern for the Office. Our overall concern stems from the aspects of the proposal, which together
cast refugees and immigrants in a negative light. UNHCR has already expressed its preoccupation about the tone
of the asylum debate in Denmark, including during the High Commissioner’s
visit to Denmark on 11 January 2002.
In UNHCR’s view, it is important to ensure that Government policy
proposals concerning asylum-seekers and refugees avoid feeding into prejudices
and generalisations about immigrants.
UNHCR is working with a number of Government and non-Governmental actors
to counter an unfair and negative portrayal of foreigners in the media and
other fora. The Office sees this
as a necessary public information and education activity, in addition to the
imperative to counter rising incidents of xenophobia, intolerance and
race-related crime against asylum-seekers and refugees.
UNHCR has greatly benefited from the opportunity to meet
with Danish Government officials to discuss the Policy Paper and Draft Bill on
24 January and 28 February respectively, and we have equally benefited from the
fact that the Government has made available English translations of the key
aspects of the 147 page Bill and commentary. Concerning the Draft Bill and
commentary, and with reference to the helpful clarifications which were
provided by Government officials on various aspects of the proposal, UNHCR
remains concerned that specific aspects of the Bill and commentary appear
inconsistent with international refugee and human rights law.
Pursuant to its statutory responsibilities and Article 35 of
the 1951 Convention, UNHCR’s comments are put forward in a constructive
spirit, in the hope that they will assist the authorities in reconsidering
aspects of the law proposal. The
below comments follow the presentation of issues as formulated in the English
translation of the law text which was shared with UNHCR.
2. Section
2.1 of the Draft Bill: “Abolishment of the de facto refugee concept”
UNHCR has been advised that the abolition of the de facto refugee concept should not be
understood as meaning that complementary forms of protection will be
abolished. UNHCR has been further
advised that the Draft Bill intends to extend protection to all persons for
whom Denmark has an international obligation to do so. The Bill thereby incorporates a
modification to ensure that persons protected under provisions of the European Convention on Human Rights and
Fundamental Freedoms (ECHR) and its Protocol No. 6, as well as the UN Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT) will be specifically
provided for in the Aliens Act. The
commentary to the Draft Bill, and explanations provided to the Office, indicate
that the Government considers it necessary to amend the Act to spell out these human rights
protections and their origins in order to be more precise about those for whom
Denmark has assumed Convention based international legal responsibilities. Presently the Act does not identify the specific legal
grounds on which so-called ‘protection status’ can be granted under
Danish law. UNHCR was also told
that persons recognised under this proposed category of ‘protection
status’ would be granted rights akin to those of Convention refugees in
Denmark, with the exception of Convention travel documents, which would only be available to
Convention refugees.
UNHCR understands the priority
objective of ensuring that Denmark’s international legal obligations are
clearly reflected in domestic law.
UNHCR would however recommend that the Danish Government consider
incorporating in legislative form, the provision of temporary protection to persons who fulfil the requirements
as set forth in the EU Directive on Temporary Protection (Council Directive
2001/55/EC of 20 July 2001). As was specifically noted in UNHCR’s
preliminary comments on the new policy for foreigners of 30 January 2002, the
possibility of granting temporary residence permits to groups other than those
specified in § 9 e (1) and (2) of the Aliens Act (i.e.
persons from the Former Yugoslavia and Kosovo) should be provided for.
During the meeting with the Danish
Permanent Representative to the UN at Geneva and other Government officials on
28 February , UNHCR was advised that the Government was in the process of
consultations with the EU Commission with a view to “opting into”
the Temporary Protection (TP) Directive. UNHCR welcomes the intention of Denmark
of implementing the TP Directive. In light of the overall importance of
ensuring that a TP regime is put in place, and in consideration of the scope of
reform which is proposed by the law proposal, UNHCR would welcome if the
Government reflected the introduction of a TP provision in the Draft Bill and
commentary.
Under § 7(2) of the Draft Bill
concerning complementary forms of protection, the law proposal exclusively
refers to death sentence, or torture or expulsion to inhuman or degrading
treatment or punishment as reasons for the granting of complementary
protection. The proposal, as
currently formulated, therefore falls short of protection for other categories
of persons of UNHCR’s concern because they are in need of international
protection.
UNHCR’s paper to the Standing
Committee of the Executive Committee on ‘Complementary Forms of
Protection’ of 9 June 2001 (EC/50/SC/CRP.18) specifically identifies
so-called complementary forms of protection to “cover persons outside
their countries who are in need of international protection because of a
serious threat to life, liberty or security of the person in the country of
origin, as a result of armed conflict or serious public disorder; for example,
persons fleeing the indiscriminate effects of violence and the accompanying
disorder in a conflict situation, with no specific element of persecution
….” (para. 10). From UNHCR’s perspective, the term
“refugee” applies both to persons coming within the scope of the
1951 Convention and 1967 Protocol, and to people fleeing the indiscriminate
effects of armed conflict or generalised violence, albeit with no specific
element of persecution. The UN
General Assembly and UNHCR’s Executive Committee have for many years
called upon UNHCR to provide protection and assistance to such persons coming
within this “broader” refugee definition. The Danish law proposal in describing the scope of §
7(2) is devoid of any reference to this category of persons in need of international
protection.
In UNHCR’s view, a more
acceptable formulation of the provision in § 7(2) could read as follows:
“Denmark shall grant subsidiary protection status to an applicant for international protection who is outside his or her country of origin, and cannot return there for reasons outside of the scope of the definition of Convention refugee under Section 7 (1) and owing to:
a) the risk of
death penalty or being subjected to torture or inhuman or degrading treatment
or punishment; or
b) indiscriminate
threats to life, physical integrity or liberty resulting from generalised
violence or events seriously
disturbing public order;
with no
element of persecution or link to a specific Convention ground.”
UNHCR recommends that the Bill be
amended accordingly.
UNHCR understands that the comments
to the Bill are meant to provide authoritative guidance to the Danish
decision-making authorities. In
this regard, UNHCR has noted that the comments make reference to specific
categories of persons who would be affected by the law proposal. There are two categories of persons
referred to in the comments which raise particular concerns to our Office and
in regard to which UNHCR would suggest clarifications in the commentary:
As concerns how politically and practically
Denmark would consider victims of such violence to being removed from Denmark,
UNHCR has been informed that § 9 b of the Draft Bill, which permits the
grant of residence permits to persons who, in cases not falling within §
7(1) or (2), are “in such a position that essential considerations of a
humanitarian nature conclusively make it appropriate to grant the
application”, may be
applicable. As categories of
persons who may be granted this ‘humanitarian status’, UNHCR has
been advised that certain groups of persons from areas experiencing civil
unrest would fall under Section 9 b Aliens Act and would thereby be permitted to
remain in Denmark on humanitarian grounds, such as Afghans and Somalis not
qualifying for refugee or protection status. While this provides some
reassurance, UNHCR prefers that international protection needs, rather than
humanitarian compassion, be set out as the basis for granting such persons
permission to stay.
UNHCR has noted the repeated
assertion in the comments to the Bill that the Danish Government does not feel
obliged to afford international protection in cases where there is no specific
treaty obligation. In
UNHCR’s view, a state’s legal obligations under international
treaties must be seen in the proper context, as the praxis and interpretation
of international treaties, which include international refugee and human rights
instruments, go beyond the categories of victims of persecution or human rights
violations noted in the Draft Bill.
Furthermore, such treaty obligations are subject to a continuing
evolution in state practice and jurisprudence, which the law proposal and
commentary fail to reflect.
3. Section
2.2 of the Draft Bill: “Tightening of the first country of asylum
rule”
On the issue of the
‘first country of asylum’ rule, UNHCR has taken note of § 7(3)
of the Draft Bill which inter alia provides that an alien
may be refused a residence permit under § 7(1) and (2) if he or she
“has already obtained protection in another country, or if the alien has
close ties with another country where the alien must be deemed to be able to
obtain protection”. UNHCR
has been advised that this provision means that the foreigner should have close
ties with the other country, which normally means the person has formerly resided
there. The basic criteria noted on
pages 17-18 of the translated commentary include the asylum seeker’s
ability to enter and take up lawful residence; and his/her personal integrity and safety being
protected in that country, including against refoulement. UNHCR has been further advised
that the actual ‘tightening’ of this rule, as noted in the heading
under this section of the commentary, would be that the ‘personal
balancing’ test would be abolished.
This test means that the authorities would weigh the applicant’s
ties to Denmark in comparison with his or her ties in the third country. In future only the ties with a third
country would be assessed.
UNHCR wishes to note
that its Executive Committee Conclusion No. 58 (1989), focuses on the need for
“effective protection” if an asylum seeker is being returned to a
country of first asylum. UNHCR is
concerned that the formulation of § 7(3) is vague, in so far as it does
not refer to the actual possibility for the refugee to re-avail him or herself
of the previously enjoyed protection in another country. A question
on this aspect of the Draft Bill therefore is whether it would be applied to
applicants who are not readmitted, and can for other reasons not return to
other countries of asylum, and if so, what would their status in Denmark be?
Finally, the reference to
Palestinians from Lebanon in the commentary to the Draft Bill raises the
question as to why this particular group of refugees is singled out, and
whether the Danish authorities are of the view that indeed Lebanon does offer
protection to all Palestinian refugees who have chosen, or are obliged, to
leave that country.
4. Section 2.3
of the Draft Bill: “Abolishment of the possibility of applying for asylum
from Danish missions abroad”
Notwithstanding UNHCR’s earlier recommendation, as
noted in UNHCR’s preliminary comments of 30 January, that the practice of
asylum seekers with ties to Denmark being able to apply for asylum at
diplomatic missions abroad should continue, the Draft Bill proposes that this
practice (previously § 7(4) Aliens Act) be abolished. UNHCR has been advised that the
principal reason for the abolition of this procedure is to save money, as the
expense of processing these applications at diplomatic missions abroad is too
burdensome In UNHCR’s view,
the abolition of this practice would be regrettable, as it would foreclose the
possibility of persons with protection needs and links to Denmark to seek
protection in Denmark through a more direct application process. UNHCR has promoted this unique aspect
of the Danish system with other countries as a ‘best
practice’. It is furthermore
the Office’s view that such a practice may actually help reduce the
number of asylum seekers and refugees who have close ties to Denmark, from choosing
to ‘move irregularly’ to enter the country. UNHCR reiterates its recommendation
that the Draft Bill be amended so as to permit the continuation of this
overseas asylum application process.
5. Section 2.4
of the Draft Bill: “Refusal of entry to asylum seekers and return to safe
third countries”
§ 48a of the Draft Bill inter alia provides that:
“Return … may only be effected to a country which has acceded to
and in fact honors the 1951 Convention, and which provides access to an
adequate asylum procedure. Return
… may not be effected to a country where the alien will be at risk of the
death penalty or of being subject to torture or inhuman or degrading treatment
or punishment, or where there is no protection against return to such
country.”
UNHCR notes and welcomes
the inclusion of additional criteria in the provision on “safe third
countries”. It is UNHCR’s view that, apart from the Dublin
Convention procedure and any appropriate successor instrument, returning an
asylum seeker to another country based on the ‘safe third country’
concept must be accompanied by a case-by-case determination, within a fair
procedure, that the individual asylum seeker will:
· Be
re-admitted to that country;
· Enjoy there
effective protection against refoulement;
· Have the
possibility to seek and enjoy asylum in that country; and
· Be treated in
accordance with accepted human rights standards.
UNHCR’s formulation of the necessary
criteria, as noted above, for such returns differs from that in the commentary
to the Draft Bill. UNHCR
recommends that the Danish law proposal reflect all of these criteria so as to
avoid ambiguity, or the possibility of an overly broad application of
discretionary authority. The
specific phrase to ‘be treated in accordance with accepted human rights
standards’, is particularly important in the context of avoiding asylum
seekers being returned to countries where they may be subject to mandatory
and/or long-term detention. UNHCR
further recommends that the phrase “fair and efficient” procedures
as opposed to the formulation in the translation of “adequate”, be
used in the Draft Bill. While the
criteria in § 48a are generally acceptable along with the above
qualification, in UNHCR’s view there should additionally be an appeal
possibility with suspensive effect in all cases being considered for third
country returns.
In discussions on this aspect of the Draft Bill
with Government officials, UNHCR was advised that, as outlined in the
commentary, UNHCR would be consulted on which ‘third countries’ may
be come into consideration in applying this provision. While UNHCR welcomes the envisaged
consultations, it wishes to note that the organization will not be in a
position to pronounce itself in general terms on the safety of a third country
as this has to be assessed on a case-by-case basis. Moreover, it is not clear to UNHCR whether, in practice,
there is a consultation procedure with a third country prior to a transfer of
an asylum seeker, so as to obtain the explicit consent of readmission to the
third country, as well as admission to an asylum procedure for the individual
concerned.
6. Section 3
of the Draft Bill: “Tightened conditions for the issue of permanent
residence permits”
Under this sub-heading of the commentary to the Draft Bill,
the Government has proposed a significant change in the number of years, from 3
to 7, of residence required for a refugee to be granted a ‘permanent
residence’ permit. In this
connection UNHCR was advised that the counting of the
7-year period would only begin when an individual was granted status in
Denmark, for example refugee or humanitarian status, and would not include time
spent in the procedure.
While this aspect of the proposal is clearly a policy
choice, it is at odds with the practice of a number of EU States which either choose to grant
permanent residence status immediately after a refugee is recognised as such,
or do so after a lesser number of years of residency, normally 5 years or
less. The EU proposals on this
issue are moving towards adopting a 5-year timeline that counts the time spent
in the asylum procedure.
Furthermore, in the refugee context the declarative nature of
recognition of refugee status should be considered in order not to prejudice an
applicant for time spent in the procedure. The draft EU Directive on Long-Term Residents also includes
important exemptions as regards qualifying conditions for refugees, including
economic means tests and insurance coverage.
In UNHCR's experience, it is important to grant appropriate
legal status to refugees in as short a time as possible, in order to facilitate
their social acceptance and integration prospects. UNHCR is concerned about the
signal this provision sends to the immigrant community in particular, and how
it may actually work against the Government’s desire to promote
integration of foreigners and refugees if they have to wait so long in order to
be considered ‘permanent residents’ and are faced with the
insecurity of a possible revocation (see below) of their temporary residence permits
during this period.
UNHCR recommends that the waiting period to be granted permanent residence
status as presently formulated in the Draft Bill be amended in line with the
above comments. In the case of
persons who have been recognized as being in need of international protection,
no longer than 5 years, which would include the amount time spent in the asylum
procedure, should, in our view, be required in order to gain permanent
residence status.
7. Section 4
of the Draft Bill: “Enhanced access to revocation of residence
permits”
As concerns the criteria for revocation of non-permanent
residence permits (which covers cessation of refugee status) contained in
§ 19 Aliens Act, UNHCR was advised that there will always be a balancing of criteria,
and in the comments to the Bill it is noted that any revocation decision would
be taken as a separate assessment by the Danish Immigration Service and the
Refugee Board. In the refugee
context, the commentary refers to Article 1(C)(5) of the 1951 Refugee Convention
as well as paragraph 139 (exemption to cessation) of the UNHCR Handbook on
Procedures and Criteria for Determining Refugee Status. UNHCR is of the opinion that in cases
of very serious past persecution, even if there is no prospect of future persecution,
the refugee should be granted continued protection in Denmark. UNHCR has been further informed that
Article 1(C) criteria would only apply to persons granted Convention refugee
status, and for those individuals granted ‘other protection status’
such status would not be revoked where a person risks torture, human rights
violations or if it would be particularly burdensome to the person. The doctrine of "acquired
rights" may also come into play for refugees who have been in Denmark over
a period of years.
This aspect of the law text in the Draft Bill does not refer
to the entirety of the cessation criteria in the 1951 Refugee Convention. So as to avoid any ambiguity under this
important aspect of international refugee law, the full provisions of Article
1(C) of the 1951 Convention should be reflected in the text of the Draft
Bill. UNHCR further recommends
that the commentary to the Draft Bill reflect the fact that in cases where
Denmark is deciding on the application of the cessation clauses, UNHCR may be
consulted in evaluating the impact of changes in the country of origin or in
advising on the implications of cessation of refugee status in relation to
large groups of refugees on Danish territory. Such an involvement of UNHCR would be in line with the
Office’s supervisory role under its Statute in conjunction with Article
35 of the 1951 Refugee Convention and would be consistent with the views of the
Executive Committee as noted in its Conclusion No. 69 (1992).
8. Section
5.1 of the Draft Bill: “Composition of the Refugee Board”
A further amendment in the Draft Bill of § 53 (2) Aliens
Act is to change
the composition of the Refugee Board so as to remove representation of the
Danish Refugee Council (DRC) and the Ministry of Foreign Affairs. UNHCR is concerned about the motivation
for removing the DRC from the Refugee Board. The Office has been advised that the DRC’s presence
over the last several years has never been problematic, and indeed the DRC
brings much experience and expertise to the deliberations of the Board. UNHCR
has also been informed by Government officials that the Refugee Board almost
always takes unanimous decisions, which is indicative of a well-functioning
decision-making body. It is
UNHCR’s view, that the representation of civil society in, and the
cumulative experience the DRC brings to the Danish asylum procedure in its
various aspects, is worth preserving.
The role of the DRC has been promoted by UNHCR as a model of ‘best
practice’ for other countries.
In this context the Conclusions on Supervisory Responsibility coming out
of the Expert Consultation within the UNHCR Global Consultations on
International Protection have noted the importance “to ensure that
non-governmental organizations have a proper role in the process of
supervision” of the implementation of the 1951 Refugee Convention.
UNHCR reiterates its plea to maintain the DRC on the Refugee
Board, as well as in other aspects of the Danish asylum procedure.
9. Section 5.3
and 5.4 of the Draft Bill: “Processing of cases under the manifestly
unfounded procedure”
This aspect of the Draft Bill provides that the manifestly
unfounded procedure is to be applied in more cases (§ 53b Aliens Act). The proposal further notes that in potentially a large
number of cases the chairperson of the Refugee Board could alone decide on such
cases. The proposal also
recommends the abolition of the so-called ‘one night rule’ to allow
for processing of claims in one day, and would permit the use of manifestly
unfounded procedures in cases which concern credibility
(“unreliability”) issues.
As concerns the notion of manifestly unfounded claims,
UNHCR’s Executive Committee in its Conclusion No. 30 (1983) defines such
claims as either (i) clearly abusive or fraudulent, or (ii), not related to the
criteria for refugee status. UNHCR
would not agree to the scope of manifestly unfounded claims going beyond these
two categories. Those asylum
claims that require complex assessments, such as the application of the
so-called internal flight alternative, or that involve difficult issues of
credibility, cannot be handled in an accelerated procedure. Similarly an
asylum-seeker’s lack of documentation, or use of forged documentation
cannot, in itself alone, render his or her refugee claim manifestly
unfounded.
The proposal further suggests that an “expedited
manifestly-unfounded procedure” be undertaken in only one day. UNHCR questions whether this is
logistically possible, and whether sufficient safeguards can be put in place to
ensure a fair determination procedure.
Given the current formulation of the respective provision of the Draft
Bill (§ 53 b (2) Aliens Act) UNHCR is also concerned that use of the ‘less than
one night’ procedure, as presently formulated in the commentary, may
become the normal practice and not, as UNHCR was advised, the exception. Furthermore, to allow the Chairperson
of the Refugee Board to deal with manifestly unfounded cases on his or her own
may overburden the Chairperson and delay decision-making. These various procedural
changes – as such minor on their own – may, in their entirety, have
the effect of reducing the quality of the manifestly unfounded procedure, which
could lead to erroneous decisions.
10. Section 5.5 of
the Draft Law: “Immediate departure upon final refusal of asylum”
The Draft Bill provides that asylum seekers whose
applications are rejected are to leave the country immediately and not, as is
the practice today, within 15 days.
UNHCR feels that this aspect of the proposal should be modified to allow
rejected asylum seekers a reasonable time to exhaust appeal possibilities. As concerns exhaustion of appeal
procedures, UNHCR was advised that the responsible authorities would wait for a
decision on a humanitarian application, for example, before executing a removal
order. UNHCR was also advised that
rejected asylum seekers would be expected to apply for humanitarian status on
the same day as they received the rejection decision, and if they did so afterwards
then special consideration would have to be given as to whether the applicant
could remain in Denmark pending the outcome of the application. Our Office was further informed that
rejected asylum seekers in this position would be provided guidance and legal
advice on these matters, and applicants before the Refugee Board would be
provided with a lawyer.
Given the importance of these procedural safeguards, which
UNHCR commends, it is recommended that they be specifically spelled-out in
either the law text and/or the commentary to the Bill.
11. Section
7: “The Family Reunification
Field”
This aspect of the proposal entails the abolition of the
statutory rights to reunification with members of the core family (spouses,
children and parents above the age of 60). UNHCR has however welcomed the advice it received that
recognized refugees who are married when they come to Denmark, will not be
required to meet the financial and other requirements in order to be granted
family reunification. UNHCR was
also advised that the rules would be more stringent in cases where refugees got
married after arriving in Denmark.
The Draft Bill suggests that refugees who have been granted
asylum in Denmark based on family ties, and who later marry someone from a
third country may, depending on the closeness or otherwise of their ties with
Denmark, be asked to join the spouse in his or her country of residence. In UNHCR’s view, it should be an
important consideration that recognized refugees are at quite a disadvantage as
regards joining a spouse in a third country due to their status as refugees,
which carries with it difficulties in moving from the country of refuge. Depending on the spouse’s country
of origin, the refugee may be unable to relocate there for security reasons
linked to refugee status.
Recognized refugees, just as persons enjoying other forms of
international protection, may fail the test of returnability enunciated by the European Court of
Human Rights in a number of decisions concerning Article 8 of the European
Convention on Human Rights (ECHR).
It is also important to bear in mind that the UNHCR
Executive Committee has repeatedly recognized the importance of the principle
of family unity and has called upon states “to implement measures to
facilitate family reunification of refugees on their territory, especially through the
consideration of all related requests in a positive and humanitarian spirit
….” (Executive Committee Conclusion No. 85 (1998), at Para.
(w). The UN Human Rights Committee
has further recognized that the “the right to found a family implies, in
principle, the possibility to procreate and live together”. The Human Rights Committee has
underscored that the possibility to live together implies the adoption of
appropriate measures “both at the internal level and as the case may be,
in cooperation with other states, to ensure the unity and reunification of
families, particularly when their members are separated for political,
economic or similar reasons” (General Comment 19 of the Human Rights Committee on
‘Protection of the family, the right to marriage and equality of
spouses’ (Article 23), 1990, at Para. 5).
Given the particular vulnerability which characterizes the
situation of many refugees, and considering the fact that recognized refugees
have already had their lives disrupted by being forced to leave their country
of origin, it is UNHCR’s view that particular consideration should be
given to allowing refugees residing in Denmark to be joined by their family and
spouses in Denmark. In brief,
UNHCR recommends that there should be a specific exemption for Convention
refugees as concerns constraints on family reunification, whether such
reunification is based on a pre-existing marriage or a marriage which is
entered into after asylum has been granted.
A related concern of the Office is that both Convention
refugees, as well as those granted subsidiary protection under § 7(2), may
have to wait more than three years in order to have their family reunification
applications processed, as the new rules would not permit an applicant
receiving any public benefits to be joined by a spouse. As the Danish integration programme is
three years in length, this could result in refugees and other protected
persons waiting at least three years before they can apply to be joined by family members. In the case of persons granted
humanitarian status under § 9 b Aliens Act, under the terms of the Draft Bill
they would have to wait “at least 7 years” in order to obtain
permanent residence status, hence before being able to benefit from family reunification.
UNHCR has been advised that, for example, in the case of a
person granted humanitarian status, family reunification may be granted under
§ 9 c Aliens Act if a denial would be contrary to Article 8 of the ECHR (9c Aliens
Act provides inter
alia that “a
residence permit may be issued to an alien if exceptional reasons make it
appropriate”). Nevertheless, the scope of the provision in practice, in
addition to the very long waiting period, is of general concern to our Office. Furthermore, the jurisprudence
concerning Article 8 of the ECHR and the grant of family reunification
generally addresses situations whereby one spouse is subject to an expulsion or
removal order based on criminality or other grounds. This case law
is distinguishable to the situation of refugees and other protected persons,
and it is therefore difficult to see how the current jurisprudence under
Article 8 of the ECHR could be used directly to interpret the grant of family
reunification to the benefit of refugees and other protected persons.
A related issue in the Draft Bill, is the rule that would
only permit reunification of spouses who are at least 24 years of age. The
proposal suggests restricting the ability of asylum seekers to enter into
marriage under the terms of the Danish Marriage Act. The commentary to the Bill appears to make little
distinction between what UNHCR agrees is the unacceptable practice of
‘forced marriage’, and ‘arranged marriage’ which is
common in many cultures. In UNHCR’s view it is
incorrect to compare the two.
Furthermore, it is difficult to assess how merely raising the age for
legal marriage in Denmark would have the desired effect of limiting the
incidents of forced marriage.
Public education on the issue of forced marriage may be an effective
approach.
A related
consideration is whether it would be desirable from a policy perspective to
restrict the ability of asylum seekers and refugees to marry in Denmark. In UNHCR’s view, this aspect of
the proposal may be inconsistent with a proper interpretation of Articles 8, 12
and 14 of the ECHR, and Articles 23 and 26 of the International Covenant on
Civil and Political Rights.
12. Social benefits
The Draft Bill suggests that in order for individuals to
obtain full social welfare benefits they must have resided in Denmark for at
least seven out of the preceding eight years. This proposal applies to both “foreigners” and
Danish citizens. A somewhat
related proposal, linked to the introduction of the Danish Integration Act, was discussed with the Danish
Government in 1998. UNHCR provided
extensive comments on the 1998 proposal.
The present proposal is different, however, in that it endeavors to
bring in some parity of treatment as between refugees and Danish citizens.
During UNHCR’s meetings with Danish Government
officials on 24 January and 28 February, questions were raised about aspects of
the policy proposal in the context of Articles 23 and 24 of the 1951 Refugee
Convention. Moreover, the question
was put as to whether it was equitable to compare a returning Dane to a refugee
for the purposes of assessing the need for social welfare benefits. With regard to international refugee
law, Article 23 of the 1951 Refugee Convention promotes the equal treatment of
refugees with nationals, but as such, i.e. not with selected sub-categories of
nationals. There is no reference
in the Article to nationals "in the same circumstances", as otherwise
appears in some articles of the Convention. In any case, clearly a refugee who does not have the same background
in and knowledge of the society, the same social and family ties, a comparable
grasp of the language, or an economic base on par with a returning Danish
citizen, could not be said to be in a comparable position.
UNHCR would hope that proper consideration be given to the
special situation of refugees, who do not choose to flee their countries of
origin. Refugees lack the networks
that can compensate for lost assistance of the sort Danish nationals normally
can rely on. Furthermore, it is at
the early stages of their arrival and integration, often from situations of
deprivation and trauma, that refugees need maximum support. At another level, UNHCR would be
concerned should such a reduction somehow send out a negative message about the
contribution being made by refugees to Danish society by implying, wrongly in
UNHCR's view, that it cannot offset any welfare burden they may
constitute.
UNHCR therefore questions the rationale, and the legality,
of this provision of the Draft Bill.
13. Concluding
Remark
UNHCR would be pleased to provide any clarifications on
aspects of the above comments, or on any other related matter the Government or
Parliament may wish to raise.
UNHCR appreciates this opportunity to provide its views on this
important law proposal, and it looks forward to a continuing dialogue with Denmark.
UNHCR Geneva
18 March 2002