When A Floor Becomes a Ceiling: Danish Immigration Law and International Human Rights Conventions
Catherine Hall Uttenthal and Henry Edward Orren
Immigration policy is without a doubt the most hotly debated topic in Danish political life today. Some elements within the government verge on anti-immigrant fanaticism, while some members of the opposition and numerous international observers condemn the country’s stance as irresponsible at best, and openly racist at worst. With the passage of the Aliens Act, Denmark, which traditionally is regarded as a stalwart supporter of international conventions, has been cast as the black sheep of the human rights world. The Danish government’s response, summed up in a recent statement by the Prime Minister, Anders Fogh Rasmussen, refutes this, saying “This is just another example of rumors and misunderstanding.” The government is wrong to dismiss the critics out of hand, but it is also true that the critique has lacked sophistication, factual information, and has tended to exaggerate the virulence of anti-immigrant sentiment. It is time for a sober and thorough examination of the law itself and its status in the international context. On paper, there are technically no breaches of international human rights norms and standards. The government’s three goals in enacting the law are respect for international conventions, limits on the number of immigrants entering Denmark, and better integration for foreigners already in the country. These goals are relatively innocuous by European standards, but the government’s approach is still most alarming to many. Denmark now stands dangerously close to the edge of illegality and risks violating the spirit of international humanitarian law. While it must be emphasised that Denmark has done nothing illegal or abusive, it may bring Danish immigration policy to the point where Denmark might be obliged to defend its policies before the European Court of Human Rights (ECHR). Until the law is put into practice, there can be no telling whether such a law suit will ever be filed, let alone whether it would succeed. However, in the meantime it is already possible to observe certain avenues that a legal challenge might take. Potential Convention-Based Arguments Against the Aliens Act: Family Life The Danish government is under various legal obligations with regard to marriage and family life. First is the generally acknowledged legal principle that the right of spouses to live together and found families must not be obstructed by any state. Second, Denmark is obligated to prevent the practice
of forced marriages according to the International Covenant on Civil and Political Rights. The purported purpose of the Aliens Act is among other things to uphold the second requirement, but in so doing it seems in conflict with the first. At first glance restrictions such as those prohibiting family reunification for foreign spouses under 24 years of age, and all foreign family members over 60 years, clearly interfere with family life in violation of Article 8 of the European Convention on Human Rights (ECHR). However, the Convention and the jurisprudence of the European Court of Human Rights have given states substantial leeway to interfere when certain extenuating circumstances apply. For example, in Abdulaziz (1985) the Strasbourg Court ruled that a British restriction on spousal reunification was not ipso facto a breach of Article 8, because the plaintiffs could live together elsewhere. Moreover, the Aliens Act makes a special provision for reunification when there can be no return to the immigrant spouse’s home country. A more likely scenario would be a plaintiff arguing that the Aliens Act was discriminatory. For even if the Aliens Act did not constitute a breach of Article 8 alone, any differentiation in the standard of protection given would be illegal under ECHR Article 14. Sexual discrimination suits based on such a combination have succeeded in Strasbourg in the past. If it could be proven in court that, as many have charged, considerations of the race, religion, or national origin of immigrants were motivators of the law, the act should be likewise illegal. It is difficult to say exactly what the requisite standard of proof for such a claim would be, but it would most likely entail the production of convincing evidence that the race, religion, or birth of the affected immigrants motivated a substantial number of the Aliens Act’s authors and/or the authorities tasked with enforcing it. Some members of the Danish opposition and outside observers have voiced concern over the tone of Danish politics. The difficult challenge would be to mould the rhetoric into a coherent body of evidence. Still, statements by some prominent politicians lead one to believe that the assertion of prejudice is far from wholly unfounded. Birthe Rønn Hornbech, the parliamentary spokesperson on immigration for the Liberal Party, went on record during the 2001 electoral campaign saying that family reunification restrictions should be specifically targeted at Turkey, Pakistan and Somalia. Then Minister of the Interior Karen Jespersen of
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the Social Democratic party, who, herself, created a minor stir the year before with her suggestion that criminal asylum seekers be placed on a secluded island, called Hornbech’s statement a clear-cut case of discrimination. It is not absurd to suspect that Hornbech and others have not abandoned that sentiment and were motivated to support the new law as a means of indirectly achieving their goal. If this could be proven, it would clearly present a legal problem with regard to the ECHR’s prohibition of discrimination. Arguments against the Act would center on the Danish government’s ability to prove the legitimacy of its aims, and Denmark can be expected to argue that it is legally preventing forced marriages, and perhaps also protecting its domestic labour market and welfare economy from demonstrable threats. They would then need to prove that the law itself was a valid and proportional means of pursuing these aims. In fact, the law addresses forced marriages only indirectly. As for the validity and proportionality of the Act on economic grounds, it seems to be a fair assessment that countries like Denmark with generous tax-payer-financed allowances will undoubtedly be attractive to many low-skilled immigrants who might be an economic burden. However, the law does not distinguish among immigrants, and it is problematic to imply that all immigrants belong in this category. Jann Sjursen, a Member of Parliament from the Christian People’s Party, doubts that curtailing immigration is a just or even effective means of dealing with the burden of unproductive persons on the welfare roles. Perhaps the closest the Aliens Act comes to an overt violation of international conventions is the rule that individuals, who petition for asylum, may not legally marry until they have been given legal residency. Every year there are numerous bogus marriages between asylum seekers and legal residents of Denmark, but it is unreasonable to rule out the possibility that a certain proportion of marriages involving asylum seekers are legitimate. The ECHR enshrines the right of “men and women of marriageable age…to marry and found a family, subject to the national laws governing the exercise of that right.” (Article 12) The Danish Red Cross has found it “questionable whether the suggested rule is in compliance with Article 12.” Indeed, it is difficult to see how the rule can be reconciled with the ECHR unless a presumption were made that asylum seekers who want to marry will eventually be given residency. That would delay their right to marry, not completely deny it. Marriage in a third country is also a strong possibility as an excuse for the rule. There are as yet very few in the legal community prepared to charge the Danish government with out and out illegality. Denmark’s Minister of Immigration, Bertel Haarder, has stated that he is “100 per cent confident” that the Aliens Act is in accord with international law. Nevertheless, a body of evidence exists that would allow a determined plaintiff to make a strong case using each of the arguments mentioned above.
Refugee Status In the Aliens Act, the criteria for accepting asylum seekers have narrowed, and they could, in practice, now fall beneath international standards. As Kim U. Kjær, a senior researcher at the Danish Centre for Human Rights, has pointed out, the law on paper is legal in that it complies with the ECHR’s prohibition of torture and degrading treatment, but Denmark is still under no legally binding obligations to exceed the minimum standard of protection. One way in which the new system might fall below this standard would be through its elimination of so called “de facto” refugee status, whereby some individuals who previously would have been granted asylum would not be so now. In a recent report the UNHCR has criticised the government for no longer accepting refugees who face disproportionate punishment for evading military service in their home countries. In order for a draft evader to gain protection under the new definition he would have to face the death penalty, torture, or other inhuman treatment. Those seeking to avoid military service for reasons of conscientious objection are not explicitly protected if the conflict they have been drafted into is not “internationally condemned.” It remains to be seen what the Danish government will accept as an internationally condemned conflict. The narrowness and ambiguity of this provision have caused alarm. The Aliens Act also sets out a less generous standard for persons having strong subjective fear of persecution when the likelihood of renewed persecution in their home countries cannot be proven. However, the seriousness of these alterations is yet to be manifested in practice. The law also reconfigures the government’s Refugee Board in ways that some fear will cause the quality of its decisions to deteriorate. In practice, this could lead to inadvertent legal violations. Maja Rettrup Andersen, a legal advisor of the Danish Red Cross, has expressed particular concern that the elimination of the Danish Refugee Council’s (DRC) seat deprives the Board of valuable expertise. In the past, DRC, which is the organization in Denmark most closely associated to the UNHCR, represented the High Commission’s views on the Board. Without it, there can no longer be any guarantee that the input of the pre-eminent authority on asylum law will be incorporated in the decision making process. The Aliens Act also alters the government’s system for handling manifestly unfounded cases. Whereas under the former system asylum seekers were allowed to make statements in person, the questions are now handled exclusively in writing by the chairperson of the Refugee Board. Andersen feels that in the past personal presentations were a vital component of weighing the evidence and determining the credibility of the applicant. Again, while this change is not in itself illegal, it could potentially lead to less informed decisions and inadvertent human rights violations.
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Camilla Ingemann Nielsen, Refugee Coordinator at the Danish Section of Amnesty International, agrees and adds that there is also a danger that the chairpersons will be overworked. In a recent commentary, the Danish Red Cross stated, “in [our] opinion, it is critical that the letter of the law is carefully followed in cases where the foundation of the application is clearly questionable, and in the future they should be handled by the Refugee Board through regular meetings with the option for personal presentations.” In this regard, the legal risk Denmark faces has less to do with whether the Aliens Act is discriminatory or illegal. Instead, the risk is that an individual member of the Refugee Board could act negligently. One might also attempt to argue in a court of law that cutbacks in social support payments for the first seven years of residence in Denmark are discriminatory. However, even if it could be shown that this arrangement had a worse effect for newly arrived immigrants compared to persons already living in Denmark, it would be virtually impossible to prove that this was deliberately discriminatory. Practical Viability Still, there can be no certainty that a breach of human rights will occur and trigger a legal challenge. Isi Foighel, a former justice of the European Court of Human Rights, doubts that the Aliens Act will lead to any litigation in Strasbourg. He says that the court is very reluctant to overrule nation states on immigration questions. In the family reunification area, the Court has chosen in recent decisions not to undercut the nation states’ sovereignty on the issue. In Gül (1996), the Court upheld Switzerland’s right to deny an illegal immigrant seeking political asylum family reunification in deference to the state’s right under the Convention to protect its own interests; it was known that the family members waiting to enter the country would unavoidably burden the welfare economy. Although the defendant successfully asserted the right to protect its domestic economy in this instance, it is doubtful that Denmark, or any government, could say categorically that all immigrants entering their country through family reunification would necessarily present a similar economic burden. Ole Espersen, professor of law at Copenhagen University, agrees with this assessment. In sum, Foighel does not consider it a violation of human rights to deny family reunification to under-24-year-olds when the couple can settle elsewhere. The Convention guarantees a right to family life, but not necessarily in a country from where the majority of the family does not originate. In his assessment, the economic argument also counts heavily. These facts would also have been well known to the drafters of the Aliens Act, and most experts agree that they would have been taken into account. Bertel Haarder, Denmark’s Immigration Minister, has also emphasised this
point stating that he would welcome a law suit to clear up any further speculation as to the Act’s legality. Nevertheless, in the government’s official commentary on the law there are numerous statements to the effect that the Act shall not be interpreted as requiring any breaches of international human rights standards. And Sophie Hæstorp Andersen, a Social-Democrat in Parliament, has stated that she expects the Immigration Ministry to go to great lengths to avoid a law suit against the government. There are also some quite vague aspects of the law that will need to be translated into action before being evaluated. First, there is the new requirement that all asylum requests be made in Denmark and not through Danish missions abroad. This rule is perplexing for several reasons, not the least of which is that the Red Cross estimates that fewer than 200 asylum requests are made through this channel per year. It is doubtful that the rule will be of any value in stemming the tide of trafficking in human beings. Politically speaking, it is unclear what even the most rabidly anti-immigration parties in Danish politics seek to achieve. From their point of view, one would want to ”export” the immigration problem whenever possible and keep it off of Danish territory for as long as possible. One must suppose that the public perception of toughness on immigration on every single point weighs most heavily in their calculations. Second is the rule commonly known as the “51 per cent rule.” It says that except under very special circumstances, a couple, where one spouse comes from outside of the European Union, must share a collective attachment to Denmark that exceeds their collective attachment to any other country in order to be granted familiy reunification in Denmark. No one can yet say what calculus the authorities will employ in making these determinations, and some have speculated that the rule may be more of a political statement than an earnest control mechanism. Kamal Qureshi, a member of the Socialist People’s Party in Parliament, has called the rule a feature of a backward patriarchal worldview, not suited to a modern globalised society. Conclusion The Danish People’s Party, the party to the right of the governing coalition founded for the purpose of pursuing an extremely conservative agenda on immigration, has recently created a working group whose sole purpose is to research exactly how much freedom of manoeuvrability the government has to tighten immigration restrictions, without overtly violating international conventions. It is discouraging to note that the new Aliens Act seems has been drafted largely in this spirit. It conforms to the letter of international humanitarian law, but only at the minimum
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allowable level. International conventions seem to have become a ceiling rather than a floor. In so doing, Denmark faces little risk of a lawsuit, but it has created a situation that could lead to a much lower quality of protection for immigrants’ human rights than the country is historically accustomed to. Denmark, which once thought of itself as a leader in humanitarian advocacy, risks becoming a state that does as little as it legally can to defend human rights at home.
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