Denmark’s Legislation on Extraterritorial Asylum in Light of International and EU Law

 

Asylum Reform

By Nikolas Feith Tan, Senior Researcher, Danish Institute for Human Rights and Jens Vedsted-Hansen, Professor, Aarhus University.

On 3 June 2021, Denmark’s parliament passed Bill L 226, a legislative amendment allowing for the transfer of asylum seekers to a third country outside the EU for the purposes of both asylum processing and protection of refugees in the third country. The amendment provides that transfers must take place under an international agreement between Denmark and the third country and that asylum seekers are to be transferred unless it would be in breach of Denmark’s international obligations. The new legislation and the international agreements foreseen to implement it, in case such transfers of asylum seekers are going to be a real feature of Danish asylum policy, represent a fundamental shift from the traditional perceptions of territorial asylum, according to which the state where an asylum seeker arrives normally assumes responsibility for assessing her asylum claim and, if found in need of international protection, for providing it. 

While various proposals to externalise asylum processes or refugee protection have been tabled over the years, in particular since the 2015 migration and asylum crisis, the Danish legislation is unique in establishing a legal mechanism for the transfer of asylum seekers outside Europe. The proposed model seems to be radically more far-reaching than the gradually established practices of pre-procedure transfer of asylum seekers to ‘safe third countries’. Among those, so far the most notable within Europe is the 2016 EU-Turkey ‘statement’, an arrangement under which asylum seekers would be returned from the Greek Aegean islands to Turkey with reference, albeit disputed, to the ‘safe third country’ concept.

The Bill on transfer of asylum seekers

Despite the absence of support from traditional partners among EU Member States, the Danish government pursued its vision of extraterritorial processing and initiated a ministerial study of its legal elements under national, EU and international law. In January 2021, a government legal note was published, outlining the main elements of the proposed asylum model. Rather than ending spontaneous asylum outright, the note acknowledged that a number of international obligations limit the extent to which asylum seekers can be transferred after arriving in Denmark. In particular, the principle of non-refoulement in the 1951 Refugee Convention, the European Convention on Human Rights and other treaties restricts the class of asylum seekers who can be transferred without having their need for protection examined in Denmark. Moreover, asylum seekers’ right to family life in some cases includes obligations on the Danish state to allow family reunification where the asylum seeker has family members already residing in Denmark. Furthermore, the legal note set out two possible models for the processing of asylum claims in the third country ‘reception centre’. Under Model 1, Denmark would operate and exercise effective control over the centre in the third country such as to bring the centre within Denmark’s jurisdiction for the purposes of international human rights law. Under Model 2, the third country would assume responsibility for the operation of the centre. 

Following a consultation process in which the proposed new legislation had been presented, the government tabled the Bill in April 2021. It would insert a new section 29 into the Aliens Act (English translation of 2019 version here) providing that a foreigner seeking asylum shall be transferred to a third country for asylum processing and eventual protection under an international agreement, unless it would be in breach of Denmark’s international obligations. The explanatory memorandum reiterated the government’s commitment to “a more fair and humane asylum system within the framework of Denmark’s international obligations”. The Bill, while notable in establishing a legal basis in Danish law for the transfer of asylum seekers to a third country, was equally striking in its lack of legal precision. In many respects, it left key details and implementation questions unanswered. Nevertheless, the Bill did sketch the legal framework for the operation of the ‘Danish model’.

The Bill essentially presented the proposed extraterritorial apparatus in three phases: a pre-transfer ‘screening’ procedure in Denmark; the asylum process in the third country; and, for those asylum seekers found to be refugees, protection in the third country. In its explanatory memorandum, the pre-transfer phase is set out in most detail, with the establishment of a two-instance individualised procedure to assess whether the asylum seeker can lawfully be transferred to the third country. Accordingly, asylum seekers arriving in Denmark will be individually screened by the Danish Immigration Service, with automatic appeal to the Refugee Appeals Board. The Bill did not detail which asylum seekers are to be exempted from transfer, but provided a number of examples, including nationals from the third state itself, asylum seekers with family residing in Denmark and seriously ill persons. As a result, section 29(2) provides that the Ministry of Immigration and Integration shall make further rules as to those asylum seekers who are to be exempted from transfer.

Perhaps most importantly, the Bill provided that the full asylum procedure will take place in a third country that has ratified and in fact respects the 1951 Refugee Convention and where there is access to a sound asylum procedure. However, the Bill and its explanatory memorandum did not specify which minimum safeguards must be in place for such an asylum procedure in the third country, nor did it address protection standards or potential protection gaps between Denmark and the third country in question.

International law issues

The Bill was adopted with minor technical changes, thus setting the legal scene for the next phase of the Danish government’s vision and authorising the immigration minister to determine the entry into force of the amendment. As the new legislation envisages the conclusion of an international agreement between Denmark and the third state(s) in question, such an agreement needs to be negotiated and possibly also approved by the Danish parliament before implementation. 

It was seen as a first step in that direction that, at the same time as the Bill was tabled before the Parliament, Denmark’s development and immigration ministers travelled to Kigali, Rwanda, to sign a memorandum of understanding (MoU) between the two countries regarding cooperation on asylum and migration issues (as well as a more general MoU on political consultations). While the MoU is non-binding and does not provide for the transfer of asylum seekers from Denmark to Rwanda – in fact rather the opposite, insofar as the MoU includes resettlement of refugees from Rwanda to Denmark – the agreement may be seen as a precursor to a subsequent transfer agreement. 

In terms of obligations under international law relevant to the proposed extraterritorial system, the Danish government had announced that a legal study of the possibilities to transfer asylum seekers to third countries outside the EU would be undertaken by the Ministry of Immigration and Integration, the Ministry of Foreign Affairs and the Ministry of Justice. Notably, the government legal note of January 2021 was published by the former ministry alone and is a document of less than five-and-a-half pages, reflecting the very general approach and rather superficial scrutiny of the legal issues raised by the proposed models. This can be illustrated by the fact that neither Model 1 nor Model 2, as sketched out in the legal note, was analysed in any detail as regards responsibility for the transition to protection status in the third country of applicants who are found to be in need of international protection. Similarly, the protection standards that will have to be provided to persons recognised as refugees or beneficiaries of subsidiary protection were left aside in the legal note. This may be explained by the apparently underlying assumption that those protection obligations for Denmark as the transferring state can be reduced to the principle of non-refoulement. Nonetheless, such a narrow understanding of international legal obligations would seem to deserve some separate analysis in order to secure the quality of the legislative decision-making and the subsequent implementation of the new transfer rules.

When tabled in April 2021, the Bill did not specify which of the two jurisdictional models that were set out in the government legal note of January 2021 is actually envisaged. Therefore, the Bill was arguably adopted on the basis that either Danish asylum authorities or the third country’s authorities can assume responsibility for the asylum process and the reception facilities in the third country. As a result, the Bill was silent on the legal question of jurisdiction, the key criterion for establishing whether Denmark may be held directly or indirectly responsible under international law for the operation of the reception centre, the asylum procedure and the protection standards provided by the third country. 

Equally, the Bill was silent on whether legal standards and material conditions would need to meet the minimum requirements of the 1951 Convention and the European Convention on Human Rights. The Bill and its explanatory memorandum did not specify which minimum safeguards must be in place for the asylum procedure in the third country, nor did it address potential discrepancies of substantive refugee law between Denmark and the third country potentially resulting in protection gaps. For example, the recognition of LGBT asylum seekers as falling under the grounds of ‘particular social group’ under Article 1A(2) of the 1951 Convention is well-established in Denmark but not necessarily in asylum systems outside the EU. 

As argued elsewhere, the new legislation seem to take an especially narrow position on the rights afforded to refugees in the third country. While the Bill requires that the third country be a party to and in facts respects the 1951 Convention, the explanatory memorandum only sets out that this condition includes, that the country “in practice must respect the prohibition of refoulement in the Refugee Convention”. This highly minimalist position on refugee rights would seem to ignore the extensive catalogue of rights granted to refugees under Articles 2-34 of the 1951 Convention, including the right to primary education (article 22), right to work (article 17), access to housing (article 21), freedom of movement (article 26) and right to identity and travel documents (articles 27 and 28) as well as additional human rights pursuant to the European Convention on Human Rights and the various UN human rights treaties to which Denmark is a party.

EU law issues

The initial response from EU institutions to the adoption of the Danish legislation on transfer of asylum seekers was more general, yet certainly critical. On 18 June 2021 Commissioner Ylva Johansson pointed to the ‘knock-on effect’ to neighbouring EU countries and stated that “[t]he idea of a transfer of asylum-seekers to third countries for processing and accommodation is contrary to the spirit of the Geneva Convention. A system aiming for external processes outside the EU instead of protecting right to apply for asylum in the EU would send a strong and wrong signal to the outer world: Europe is disengaging. … External processing of asylum claims raises fundamental questions about both access to asylum procedures and effective access to protection. It is not possible under existing EU rules or proposals under the New Pact on Migration and Asylum. The Pact on Migration and Asylum is based on the right to asylum as a fundamental right in the European Union, guaranteed by the EU Charter.

Rather than promoting cooperation with other EU Member States, the government legal note of January 2021 actually flagged the risks associated with the Danish proposal as a matter of EU asylum law. Given that Denmark, because of its opt-out in regard to the EU asylum acquis, has a parallel agreement enabling intergovernmental participation in the Dublin III Regulation providing for the transfer of asylum seekers to the EU Member State responsible under the Regulation, the legal note indicated that the prospect of Denmark transferring asylum seekers received under the Dublin system to a third state outside Europe may lead other Member States to assume that “Denmark has in fact terminated the Dublin cooperation”, thus effectively ending Denmark’s ability to transfer asylum seekers back to other EU Member States.

What are then the more specific EU law issues raised by the proposed Danish transfer model? First, it should be kept in mind that, pursuant to Article 5(2) of the 2006 parallel agreement on Denmark’s participation in the Dublin system, “Denmark will abstain from entering into international agreements which may affect or alter the scope of the Regulations as annexed to this Agreement concerning the determination of responsibility for examining an asylum application …  unless it is done with the agreement of the Community and satisfactory arrangements have been made with regard to the relationship between this Agreement and the international agreement in question.” Thus, other Member States may seem to have a legal basis if they should want to claim that Denmark has terminated cooperation within the Dublin system in case of a unilaterally concluded agreement with a non-Member State on the transfer of asylum seekers to that third country. Article 5 of the parallel agreement was actually quoted in the explanatory memorandum of the Bill. In that connection the Ministry of Immigration and Integration invoked the CJEU judgment of 17 March 2016 in the case C-695/15 PPU, Mirza, arguing that the Dublin III Regulation does not prevent Member States from sending asylum seekers to a safe third country. Nevertheless, the crucial issue here appears to be precisely the vague and wide notion of ‘safe third country’ in the new Danish legislation on transfer of asylum seekers. It is clear from the CJEU judgment in Mirza that the Court’s interpretation of Article 3(3) of the Dublin III Regulation is based on the definition of the concept of ‘safe third country’ enshrined in Article 38 of the Asylum Procedures Directive. For this reason, it has to be concluded that transfer of asylum seekers pursuant to the new Danish legislation is only going to be compatible with the Dublin III Regulation if the international agreement to implement the transfer rules will be concluded between Denmark and a third country that is able to fulfil the Directive’s definition of ‘safe third country’.

In addition, the concrete application of the new Danish transfer legislation will have to comply with Article 38 of the Asylum Procedures Directive. In that regard it would be sufficient to note the absence of any stipulation in the adopted transfer rules that the individual asylum seeker must have some connection to the third country to which the processing of the application is going to be externalised. This would in itself seem to be a basis for the EU as well as other Member States to consider transfer under the new legislation incompatible with EU standards, as interpreted by the Court of Justice of the European Union.

Conclusions

Important legal issues remain unsettled at domestic, EU and international level. The Danish legislation, if implemented, will raise interesting constitutional problems in terms of the division of powers between the executive, the legislature and the judiciary, given that the ultimate decisions on the legal sustainability of transfers under an international agreement will be made by the quasi-judicial Refugee Appeals Board whose rulings are unlikely to be scrutinised by Danish courts before possible complaints may reach international monitoring bodies.

Denmark’s opt-out from the EU asylum acquis may seem to render certain policy options legally possible in Denmark which would not be permissible in other EU Member States. Most notably, as discussed above, a connection between the applicant and the third country concerned must exist on the basis of which it would be reasonable for that person to go to that country as a ‘safe third country’, provided that it complies with the EU definition of that concept. By deviating from these EU standards, the special cooperation arrangements between Denmark and the EU on asylum matters might be jeopardised if or when Danish authorities are going to implement the new legislation on transfer of asylum seekers to a non-European third country. Nevertheless, if the effective functioning of the Common European Asylum System continues to be undermined and the reform proposals under the New Pact fail to remedy the failures of EU harmonisation, there remains the possibility that a ‘coalition of willing’ of Member States, possibly along with European states outside the EU asylum acquis, would join the extraterritorial asylum push. Such a development might even be perceived as less brutal than the current instances of building walls or wire fences at the EU external borders.

Finally, as a matter of international relations, perhaps the key question remains whether Denmark can find a willing partner state. While Rwanda has been reported as a possible contender, it is to be seen whether an African state will be prepared to enter into an agreement with Denmark in light of the African Union’s condemnation “in the strongest terms possible” of the legislative amendment providing for the relocation of asylum seekers to countries outside the EU. 

On the same issue, see also : https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3950696