The Danish ‘Jewellery Law’: When the signal hits the fan?
The adoption of the ’Jewellery Law’: One element of many which explicitly aim to make it “significantly less attractive to seek asylum in Denmark”
On 10 December 2015, the Danish Government presented Bill No. L 87 entitled ‘Postponement of the right to family reunification for persons with temporary protection status, tightening of the rules on permanent residence permit, tightening of the rules on revocation of refugees’ residence permit etc.’ On 26 January 2016 that Bill, including an amendment later proposed on 12 January 2016 by the Government, was adopted by the Danish Parliament and became Act No. 102 of 3 February 2016, amending the Danish Aliens Act. The Bill was based on the Government’s Asylum Package of 13 November 2015, responding to the large influx of refugees by presenting 34 proposals for legislative amendments and administrative initiatives having the overall aim of making Denmark less attractive to asylum seekers; an aim already declared in the Government Platform of June 2015. This Act represents the final part of the Government’s planned tightening of Danish immigration and asylum law that also included advertising in Lebanese media in September 2015 about the tightening of the Danish residence rules in 2015; the introduction of temporary Danish border control in January 2016; and the prolonging of same in respectively January and February 2016.
One of the many elements of that Act, having the stated aim of making it “significantly less attractive to seek asylum in Denmark,” is the so-called ‘Jewellery Law’ that entered into force on 5 February 2016. That law provides for the search and seizure of certain assets of asylum seekers that may serve as a basis for a possible future forced execution of the State’s claim for payment of expenses for maintenance etc. Followed closely by the postponement of the right to family reunification for three years for persons with temporary protection status, this element caused the most scandal worldwide, and international actors such as the UNHCR and the Council of Europe Commissioner for Human Rights have raised their concerns about the legality of that law.
Without going into this in depth here, it should be noted that comparisons have been made between the Danish ‘Jewellery Law’ and the laws and practices of Switzerland, Germany and the Netherlands, as dealt with by Groenendijk and Peers here, and also Norway.
Before turning to the specific contents of the Danish ‘Jewellery Law’ and its compatibility with EU law, let us have a look at the legal background and aim of that law.
The legal background of the ‘Jewellery Law’: The Danish Immigration Service’s maintenance obligation and foreigners’ self-support obligation
For several years, asylum seekers (and foreigners without legal residence) in Denmark have been comprised by the Immigration Service’s maintenance obligation pursuant to Section 42a(1)-(3) Aliens Act. This means that they as a main rule will have the expenses for their basic maintenance and necessary healthcare services defrayed by the Immigration Service, and that they are provided with accommodation according to Section 42a(5).
However, if an asylum seeker has sufficient means of his/her own, the Immigration Service may order him/her to pay for the expenses for maintenance etc. him-/herself. Prior to the ‘Jewellery Law,’ the period for which the asylum seeker could be ordered to pay for was limited to 90 days, whereas it now extends to the end of the first month after transfer to a municipality or, in case of refusal, until departure or removal, cf. Section 42a(4) and the Executive Order on payment for expenses for the maintenance of asylum seekers etc.
Prior to the ‘Jewellery Law,’ if an asylum seeker had sufficient means of his/her own, the Immigration Service could also decide that he/she would not have the expenses for maintenance or necessary health care services defrayed by the Immigration Service in the future, but rather should defray such expenses him-/herself. By the ’Jewellery Law’ that provision lost its relevance and was abolished.
In addition, those asylum seekers who earn income through employment or paid internship will have their income deducted from their cash allowance pursuant to Section 42b(14).
The aim of the ’Jewellery Law’: To search and seize assets that foreigners may “have an interest in concealing”
For several years, asylum seekers have been obliged pursuant to Section 40(4) Aliens Act to provide information on their financial circumstances, necessary for the Immigration Service to decide whether it may order the asylum seeker concerned to repay the expenses for his/her basic maintenance, necessary healthcare services or accommodation.
According to the explanatory remarks to Bill No. L 87, the possibility for the Immigration Service to order a foreigner to pay for the expenses him-/herself has been applied only in “[…] relatively few cases.” Further, it is held that this is because “[…] in practice it has proved difficult to check those means that foreigners bring with them and thereby also to assess whether a foreigner has sufficient means for his/her own and his/her family’s maintenance etc.” In this context, it is moreover noted that “[…] it cannot be ruled out that some foreigners may have an interest in concealing their means […].”
This constitutes the basis of the perception of the Minister for Integration that “[…] the authorities should have improved tools for checking whether foreigners are in possession of means that may cover the expenses for maintenance and necessary health services or stay at an accommodation centre […],” and thus for introducing the power to search and seize assets which may serve to cover the expenses for maintenance etc.
Prior to the ‘Jewellery Law,’ Section 40(9) Aliens Act provided the legal basis for searching and seizing only documents or items assumed important for the establishment of a foreigner’s identity or ties with other countries. Consequently, by the ‘Jewellery Law’ this provision was extended in terms of objects that may be seized. On 5 February 2016, a Guidance on visitation, search and seizure was issued by the Minister for Integration to the authorities.
The value and kinds of assets that may be seized under the ’Jewellery Law’
The central provision of the adopted ‘Jewellery Law,’ namely Section 40(9), 2nd period, reads:
“Moreover, assets that may be applied for covering the expenses mentioned in Section 42a(4) […] may be seized. Upon the seizing of assets, the rules of the Administration of Justice Act Sections 509-516 apply correspondingly, however, in such manner entailing that assets of a value of up to DKK 10,000 and assets with a special personal importance to the person concerned are not seized.”
The original Bill of 10 December 2015 provided the legal basis for the authorities to seize assets of a value above DKK 3,000, including cash and tangible assets of a considerable value. Items with special sentimental value, such as wedding rings and other jewellery, were to be seized if they had a considerable value; which was also the case for ordinary personal utility items, such as watches and cell phones, of such nature beyond what was necessary to maintain a “modest standard of living.” The value and kinds of assets originated from the principles of the Administration of Justice Act Sections 509-516 on distress in assets for the collection of public or private debt and the protection against this, and were very much in line with the rules of the Aliens Act hitherto defining those means that could form the basis of imposing a self-support obligation (cf. the previous Executive Order on payment for expenses for the maintenance of asylum seekers etc). Consequently, those assets that could be made subject to seizure were – by and large – similar to the assets that may be made subject to distress. In line with this, press statements by the Minister for Integration did not dismiss the possibility of seizing wedding rings.
This caused the Bill to be met with harsh criticism, domestically as well as internationally; the Police Union leader to raise his concerns about stripping refugees from, for example, wedding rings, as well as the police’s capability of valuating the belongings of refugees, and some of the supporting political parties to demand clarifications to the Bill. On 8 January 2016, the Minister for Integration responded to this criticism by seeking to clarify parts of the controversial elements of the Bill. That clarification was, however, not satisfactory to all of the political parties supporting the Bill. Therefore, to get the backing of those political parties for the adoption of the Bill – and on the basis of an agreement reached with those parties – the Government instead proposed on 12 January 2016 to amend the original Bill in two areas:
- the value of cash to be seized was raised from amounts exceeding DKK 3,000 to DKK 10,000; and
- items of a value exceeding DKK 10,000 were to be seized, but personal items of special sentimental value, such as wedding and engagement rings, were completely exempt from seizure.
Consequently, the power to seize cash and tangible items, including jewellery, of asylum seekers that they bring with them or acquire subsequent to their entry into Denmark was upheld. However, by raising the value of assets and by exempting items of sentimental value, the Aliens Act provides those foreigners with a supplementary protection from seizure that goes beyond that from distress under the Administration of Justice Act. In addition, the value of assets to be seized now corresponds to the level of assets accepted for Danish residents in receipt of social welfare benefits; regarding whom, however, there is no legal basis for systematic search and seizure.
Thus, the proposed amendment was part of the Bill adopted on 26 January 2016.
The ‘Jewellery Law’s’ compatibility with EU Law
As part of the international reactions against the ‘Jewellery Law’ the LIBE Committee of the European Parliament invited the Danish Government to explain itself, an event that caused the expression of quite severe criticism of the legislative restrictions by Committee members. Whereas political scepticism and criticism is indeed understandable, legal scepticism seems less obvious. For one thing, Denmark has a general opt-out from the harmonized standards of the Common European Asylum System (CEAS), including the recast Directive 2013/33/EU laying down standards for the reception of applicants for international protection. In substantive terms, the basic feature of the ‘Jewellery Law’ would hardly seem to be incompatible with the Reception Conditions Directive. This needs some modification, though.
Article 17(3) of the Directive stipulates that Member States may make the provision of all or some of the material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence. In addition to such optional means test, Article 17(4) permits Member States to require applicants to cover or contribute to the cost of the material reception conditions and of the health care provided for in the Directive, pursuant to the provision of paragraph 3, if the applicants have sufficient resources, for example if they have been working for a reasonable period of time. If it transpires that an applicant had sufficient means to cover material reception conditions and health care at the time when those basic needs were being covered, Member States may also ask the applicant for a refund (on the drafting history of these provisions, see Groenendijk and Peers).
The long-existing possibility under the Danish Aliens Act to impose self-support obligations on asylum seekers with sufficient means seems to be in line with these provisions of EU law. What differs is rather the legal basis for search and seizure of assets that was introduced by the ‘Jewellery Law’. As regards enforcement of the means test, Article 20(3) of the Directive only allows for the reduction or withdrawal of material reception conditions where an applicant has concealed financial resources, and has therefore unduly benefited from material reception conditions. Decisions on this measure shall, according to Article 20(5), be taken individually, objectively and impartially, based on the particular situation of the person concerned and taking account the principle of proportionality.
In sum, the new Danish legislation has introduced enforcement measures not foreseen by the Reception Conditions Directive. It may be considered an open question whether that in and of itself necessarily constitutes a violation of EU law. Rather, the problem seems to be that the ‘Jewellery Law’ does not reflect the requirement of individual and proportionate assessment of the asylum seekers’ personal situation as laid down in the Directive, reflecting general principles of EU law. Ironically, this legislative restriction deviates from EU law precisely to the extent that it has introduced enforcement measures that appear to be primarily of a symbolic nature insofar as very few asylum seekers are likely to bring with them assets that will in practice be subject to seizure.
Due to its opt-out from the CEAS standards, Denmark does not implement EU law in the context of reception conditions and asylum procedures and is therefore also not bound by the EU Charter of Fundamental Rights in these areas. Notwithstanding, essentially similar protection obligations stem from the European Convention on Human Rights (ECHR), to which Denmark is indeed a party. The ‘Jewellery Law’s’ compatibility with the ECHR shall not be further pursued here. However, it should be noted that neither Article 8 ECHR nor Article 1 ECHR Protocol 1 provides absolute guarantees for the right to respect for private life or the protection of property, respectively. Unless combined with the non-discrimination provision in Article 14 ECHR, these Articles do not seem particularly promising to those who may want to challenge the ‘Jewellery Law.’ Still, rigid implementation of the search and seizure powers may in specific cases raise issues of discrimination or disproportionate interference.
The ‘Jewellery Law’ is yet another element in the downward spiral among EU Member States, each trying to make themselves relatively less attractive to asylum seekers. Thereby it has contributed to undermining the objectives of the CEAS to which Denmark does not want to belong anyway. In addition, it is of course part of the domestic competition in legislative restrictionism.
That said, in terms of its practical effects we do not consider the search and seizure provision as the most problematic element of Bill No. L 87. In fact it is an enforcement mechanism linked to the self-support obligations of asylum seekers with economic resources already existing; yet extended by the same Bill in terms of the period for which an asylum seeker may be imposed a self-support obligation, but at the same time reduced in terms of the value and kinds of assets that may form the basis of such obligation. Compared to certain other elements of the Bill, the ‘Jewellery Law’ can thus be said to serve primarily symbolic purposes. Those purposes were intended to be achieved both towards the domestic audience and by addressing asylum seekers abroad who might be considering Denmark as a potential country of destination.
Indeed, it seems to have come as a surprise to the senders of this symbolic message that it was received by yet another segment of addressees abroad, within as well as outside Europe. Importantly, though, the strong focus on this particular element of the Bill may at the same time have diverted attention from other policy initiatives in and beyond this Bill that may have far more serious restrictive effects for asylum seekers and refugees and, potentially, for Danish society.