The Dangers of Opting-out: The case of Denmark’s asylum policy

Picture by Frandsen Finn | AP

by a RISE student

In recent years, Denmark has taken the lead among all European countries in introducing harmful laws and policies to deter people from applying for asylum. It has a self-proclaimed “zero asylum policy”. The controversial ‘Jewellery law, studied by several European politicians in favor of restrictive policies, is the biggest proof of Denmark’s ‘paradigm shift’. The law goes as follows: all asylum seekers must hand over their belongings above 1,340 euro as a kind of guarantee. If their asylum application is approved, they get their belongings back. If their application is rejected and they leave the territory, they will get back only a part of their belongings. In case of fraud, the guarantee will be lost completely.

Denmark’s Opt-out

As a result of its Justice and Home Affairs opt-out in December 2015, Denmark does not participate in EU immigration and asylum policy, except for the Dublin and Eurodac regulations it applies on the basis of an international agreement. This means that Denmark is not part of the Common European Asylum System (CEAS), a legal and policy framework which aims at facilitating harmonisation of uniform standards for people seeking international protection. Therefore, Denmark did not implement directives concerning such issues and also does not have access to AMIF-funds. Indeed, looking at statistics there is a noticeable decline in the asylum processing rates of Denmark. The country received just 1,500 asylum seekers in 2020, the lowest number in two decades. And after years of not contributing to UNHCR-coordinated resettlement, Denmark promised 200 places in 2020 which have not been fully implemented. Since Denmark first redrew or refused to extend residency permits for 

Externalization of Denmark’s Asylum policy

Like the UK, Denmark has been engaged in introducing various forms of externalisation of asylum for more than three decades. In 2019, the Social Democratic Party presented the “Rwanda Plan”, which envisaged the “transfer” of asylum seekers from Denmark to Rwanda, similar to the UK’s plans, where their applications would be processed. The plan was based on Australia’s controversial “Pacific Solution” and would have led to the expansion of Denmark’s return infrastructure, including detention capacity and the introduction of “assisted forced transfer”. In June 2021, the Danish parliament passed bill L226, which allowed the transfer of asylum seekers to a third country outside the EU for treatment.

The idea of a far-reaching externalisation of Danish asylum policy was strongly criticised by human rights organisations and the Danish Liberal Party’s coalition partner. Concerns included the human rights situation in Rwanda, the country’s ability to provide an asylum procedure that meets international standards, and the fact that it violates asylum seekers’ fundamental right to apply for asylum on arrival in a new country and have their application processed. This would imply a violation of Article 33 of the Geneva Convention (1951) on (chain) refoulement.

However, on 25 January 2023, Denmark announced that it was suspending its controversial plan to outsource the processing of asylum applications to Rwanda. The plan remains an option if “the other way turns out to be a dead end”. The government now wants to cooperate with other EU Member States in setting up a processing facility outside Europe. That is why Danish Immigration and Integration Minister Kaare Dybvad pointed to the 2016 EU-Turkey deal as an example of the EU finalising a deal in a short period of time.

Besides this, Denmark was widely condemned in 2021 for its decision to consider Damascus, Syria, safe for the return of rejected Syrian asylum seekers. As also this is part of their “zero-asylum seeker policies”. Furthermore, there is also a risk of violating article 8 of the European Convention on Human Rights, specifically the right of privacy and family life in the case of certain Syrians. First, the currently applicable withdrawal procedures do not guarantee an overall assessment of a family’s ties or attachment to Denmark during the appeal stage, which is a requirement for a legitimate assessment based on human rights law. Danish authorities do not recognise that some persons may have a family life protected by the European Convention on Human Rights because they apply a narrow definition of what is considered “family life”. For example, they do not take into account the dependence of elderly parents on their adult children or the close family ties between young adults and their parents.

On July, 9th 2021 the European Court of Human Rights made a ruling on the case of M.A. The person in question is a Syrian refugee who was granted asylum in Denmark in 2015, and whose application for family reunification was rejected because of the three-year waiting period introduced for refugees who had been granted general protection. The three-year waiting period was introduced as part of a deterrent approach to make Denmark less attractive to refugees. However, M.A. argued that this waiting period violated his treaty right to family life (Article 8) and discriminated against him (Article 14 in conjunction with Article 8) on the basis of his refugee status under the Aliens Act 7(3). After the case was rejected by regular courts and the Supreme Court, M.A. started a case at the ECtHR in January 2018. The case was communicated to the state in September 2018, at which time M.A. had been residing in Denmark for three years and had again applied for family reunification. This time, family reunification was granted and his spouse entered Denmark in September 2019. In M.A. v Denmark, the European Court of Human Rights ruled that the three-year waiting period for family reunification for refugees was too severe an interference with the claimant’s right to family life2. However, the Court stated that mandatory waiting periods for applications for family reunion, if less than two years, are not in question.

Dangers for the EU and regional legislation

With their ‘paradigm-shift’ the Danes undermine the Common European Asylum System, which raises questions about European solidarity and creates EU law issues. 

For what concerns the CEAS, the deviation from EU standards in the field of asylum policy could have serious consequences for the special cooperation arrangements between Denmark and the EU. For example, this could happen if the Danish authorities start applying their ‘Rwanda-plan’ on the transfer of asylum seekers to a non- European third country. This deviation may further undermine the effective functioning of the Common European Asylum System and may result in reform proposals under the New Pact on Migration and Asylum being unable to remedy the shortcomings of EU harmonisation. In addition, the Danish model has been studied by other countries. In Belgium, N-VA and Vlaams Belang (two parties on the right side of the political spectrum) undertook a ‘study tour’ to find out which aspects could be introduced in their own country’s policies. However, the Danish approach should not become a model for other European Member States. 

As a result, there is a possibility that a coalition of Member States, together with European States outside the EU asylum acquis, could join extraterritorial asylum efforts. Indeed, this development may even be perceived as less cruel than the current cases of building walls or fences at the EU’s external borders. But, it is important to keep in mind that the protection of refugees and asylum seekers is an international responsibility that cannot be borne by individual states alone.

Also the question of European solidarity raises serious concerns. In 2021, UNHCR sent a letter to the Danish government. The letter contains 16 recommendations on issues of concern to UNHCR regarding Danish legislation and practice on refugees. The letter warns of restrictions that will prevent further European integration and points with the last six recommendations to more contribution to an effective EU protection regime, include participation in the Common European Asylum System and sharing responsibility for asylum applications within the EU, cooperation with countries of origin and transit without external pressure, promotion of the Global Compact on Refugees, increasing Denmark’s resettlement quota and introducing complementary pathways, and continued commitment to financial support for humanitarian and development projects.

Nevertheless, Denmark is not the only European country not willing to cooperate within Europe. In June 2022, several countries signed a voluntary agreement to install a temporary solidarity mechanism to respond to challenges faced by Mediterranean Member States. The mechanism involves assigning asylum seekers to a Member State after registering them in a country of first entry. Countries that do not accept the mechanism must contribute financially or provide personnel to manage the borders. A relocation quota is set annually and each member state must make a commitment for redistribution based on GDP and population. It is unfortunate that the European Union cannot reach a uniform agreement around such mechanisms: Poland, Hungary, Austria, Estonia, Latvia, Slovakia, Slovenia, Sweden and Denmark did not participate in this agreement.

Regarding the EU-law issues with the Rwanda-agreements, Commissioner Ylva Johansson reacted to the adoption of Danish legislation on the transfer of asylum seekers, stressing that the idea of transferring asylum seekers to third countries is contrary to the spirit of the Geneva Convention and would send a strong and wrong signal to the outside world. She said external processing of asylum applications raises fundamental questions about both access to asylum procedures and effective access to protection and that the Pact on Migration and Asylum is based on the right to asylum as a fundamental right in the European Union.

In January 2021, the government of Denmark published a legal note highlighting the risks of the Danish proposal in relation to EU asylum law. Instead of promoting cooperation with other EU Member States, the proposal seemed to actually undermine cooperation.

Denmark, because of its opt-out of the EU asylum acquis, has a parallel agreement that allows intergovernmental participation in the Dublin III regulation and provides for the transfer of asylum seekers to the EU Member State responsible under the regulation. The government’s legal note indicated that the prospect of Denmark transferring asylum seekers received under the Dublin system to a third country outside Europe could lead other Member States to assume that “Denmark has effectively ended Dublin cooperation”. This would mean that Denmark is effectively no longer able to transfer asylum seekers to other EU Member States. Moreover, the crucial issue seems to be the vague and broad concept of “safe third country” in the new Danish legislation on the transfer of asylum seekers. The CJEU’s interpretation of Article 3(3) of the Dublin III Regulation is based on the definition of the term “safe third country” in Article 38 of the Asylum Procedures Directive. Therefore, transfers of asylum seekers under the new Danish legislation will only be compatible with the Dublin III Regulation if the international agreement implementing the transfer rules will be concluded between Denmark and a third country that can meet the definition of “safe third country” contained in the Directive.

To conclude, cooperation and uniform application of regional and international regulations are crucial for all Member States to manage current and future migration flows towards Europe. Creating a strong European policy requires further efforts to integrate the asylum and migration domain and strengthen European solidarity through wider application of mechanisms. Nevertheless, scholars as Geddes and Scholten point out that: “The EU response to the refugee crisis shows there are still highly significant national sensitivities at play, which mean that the movement to a common EU policy is far from assured”. Denmark’s opt-out has led to a contested asylum policy that affects other Member States and calls into question the legal basis of European policy, and shows that we are far from complete integration. Indeed, Denmark even inspired multiple politicians to create a more restrictive and divergent asylum policy. As argued, the externalisation of EU policies are part of a solution but it cannot be it does not mean Europe can outstep its international obligations. Above all, the lack of consistency in European systems for determining asylum claims and integratory factors is problematic for the protection of asylum seekers’ fundamental rights, as seen in the M.A. case.