For members


In Detail: How will Denmark’s controversial new asylum law affect migrants in practice?

Denmark's parliament on Thursday passed a controversial new law giving the government the power to send asylum seekers to the third country. What, if anything, will it change in reality?

In Detail: How will Denmark's controversial new asylum law affect migrants in practice?
Denmark's immigration minister Mattias Tesfaye in parliament on Tuesday as a long list of immigration proposals is voted through. Photo: Mads Claus Rasmussen/Ritzau Scanpix

What is the bill that has just passed? 

The bill, L 226, is formally titled “Proposal for an Act amending the Foreigners Act” and subtitled, “Introduction of the possibility to transfer asylum seekers to asylum processing and possible subsequent protection in third countries”. It can be found here on the parliament’s website. 

The bill adds new text to the Foreigners Act, saying that asylum seekers can be “transferred to a third country for the purpose of asylum case processing and any subsequent protection after an agreement or similar arrangement, which Denmark has concluded with the third country in question, unless this would be contrary to Denmark’s international obligations.” 

Will the bill mean that all asylum seekers are held in a third country while their case is processed? 

Yes. The bill is designed to help meet the Social Democrats’ pledge to have zero refugees coming to Denmark. 

If an applicant is granted asylum under the system outlined in the bill, will they then be able to come to Denmark? 

Not even then. According to Denmark’s immigration minister, “the scheme is based on the premise that Denmark will not provide protection in the event that the transferred asylum seeker is granted asylum, after the processing of the asylum application in the third country. The protection, on the other hand, will be given by the third country concerned.” 

How have international governmental bodies like the EU and the UN reacted? 

Adalbert Jahnz, a spokesperson for the European Commission, said on Thursday that the new law contravened both existing EU asylum rules and the likely future ones. 

“External processing of asylum claims raises fundamental questions about both the access to asylum procedures and effective access to protection,” he said. “It is not possible under existing EU rules or proposals under the new pact for migration and asylum.” 

the assessment that neither Denmark’s obligations under international law nor obligations towards the EU prevent Denmark from entering into an agreement with a third country on the transfer of asylum seekers with a view to accommodation and processing of asylum applications outside the EU’s borders. Initial case processing will have to take place in Denmark in all cases before an asylum seeker can be transferred

How much did the bill pass by? 

The bill passed in parliament by 70 votes to 24, gaining the support of the Social Democrats, Liberal Party, Danish People’s Party, Conservative Party, New Right, and Liberal Alliance party, as well as by the former Liberal party MP and immigration minister Inger Støjberg. Only the Socialist People’s Party, Social Liberal Party, Red-Green Alliance, Alternativet and independents voted against it. 

How will this affect me if I’m applying for asylum right now? 

Probably not at all.

Although the bill has passed, the text notes that it is up to Denmark’s immigration minister to determine when it will come into force, meaning there is no timetable as yet to actually apply the law. If the law does not come into force before the end of 2022, the immigration minister must submit a new proposal for a revised law. 

Can Denmark apply the bill and send asylum seekers to a third country even if the UN and European commission objects to it? 
In the text of the law, it says that asylum seekers can be sent to a third country “unless this would be contrary to Denmark’s international obligations”.
In a statement published in January,  the immigration ministry said that it did not believe that this was the case. 
“It is the assessment that neither Denmark’s obligations under international law nor obligations towards the EU prevent Denmark from entering into an agreement with a third country on the transfer of asylum seekers with a view to accommodation and processing of asylum applications outside the EU’s borders.” 
But the European Commission has said that it considers that the law is contrary to Denmark’s obligations, and it is uncertain whether Denmark could push ahead with external processing unless this is resolved. 
In addition, it is likely that any move to transfer an asylum seeker to a third country would be tried in Danish courts. 
Will the bill affect refugees already living in Denmark with existing residency permits? 

The text is very vague and includes very few details, but in answer to a written question during the preparation of the bill, Mattias Tesfaye said that those who “have a legal basis of residence under EU rules on free movement or who have legal residency in this country on other grounds” could not be sent to a third country.

He said that this would include “foreigners who have a valid residence permit in this country during the period in which they have the right to reside in Denmark”. 

What about those who have a right to live in Denmark under EU rules? 

In an answer to a question during the formulation of the bill, Tesfaye said that “if an asylum seeker invokes EU rules, or if it appears from the case file that the person in question has had a right of residence in Denmark in accordance with EU rules”, the Danish Agency for International Recruitment and Integration (SIRI) will then assess whether this is the case, and whether the person in question is covered by “special procedural guarantees”. 
What happens if the host country violates the rights of asylum seekers? 
Answering another question, Tesfaye said that Danish authorities would “continuously assess the conditions of the third country’s asylum system and the general security situation for both asylum seekers and foreigners who have been granted or refused asylum”. 
If the conditions are not met, then Denmark would suspend transfers of new asylum seekers to the third country. But Tesfaye did not give details on whether asylum seekers or recipients already in the country would be returned. 
What deals does Denmark have with third countries? 
None. A memorandum of understanding signed with Rwanda at the start of May included no commitment from the African country to host a processing centre or give asylum to refugees. The Danish media have mentioned Eritrea, Ethiopia and Egypt as possible host countries but no more details have been forthcoming. 
How real is this proposal? 
Tim Whyte, Secretary-General of Action Aid Denmark, likens the law to US President Donald Trump’s plan to build a wall between the US and Mexico. In his view the proposal is primarily about domestic politics, and about the Social Democrats being seen to meet their election pledge of handling asylum in a third country and reducing the number of refugees coming to Denmark to zero. 
If he is right, then the Social Democrats will want to push the plan forward slowly, with enough concrete steps forward announced in the coming years to make it believable, but not enough to have its ultimate legality properly tested. 

Member comments

Log in here to leave a comment.
Become a Member to leave a comment.


How the EU aims to reform border-free Schengen area

European countries agreed on Thursday to push towards a long-stalled reform of the bloc's migration system, urging tighter control of external borders and better burden-sharing when it comes to asylum-seekers.

How the EU aims to reform border-free Schengen area
European interior ministers met in the northern French city of tourcoing, where president Emmanuel Macron gave a speech. Photo: Yoat Valat/AFP

The EU home affairs commissioner Ylva Johansson, speaking after a meeting of European interior ministers, said she welcomed what she saw as new momentum on the issue.

In a reflection of the deep-rooted divisions on the issue, France’s Interior Minister Gérald Darmanin – whose country holds the rotating EU presidency – said the process would be “gradual”, and welcomed what he said was unanimous backing.

EU countries backed a proposal from French President Emmanuel Macron to create a council guiding policy in the Schengen area, the passport-free zone used by most EU countries and some affiliated nations such as Switzerland and Norway.

Schengen council

Speaking before the meeting, Macron said the “Schengen Council” would evaluate how the area was working but would also take joint decisions and facilitate coordination in times of crisis.

“This council can become the face of a strong, protective Europe that is comfortable with controlling its borders and therefore its destiny,” he said.

The first meeting is scheduled to take place on March 3rd in Brussels.

A statement released after the meeting said: “On this occasion, they will establish a set of indicators allowing for real time evaluation of the situation at our borders, and, with an aim to be able to respond to any difficulty, will continue their discussions on implementing new tools for solidarity at the external borders.”

Step by step

The statement also confirmed EU countries agreed to take a step-by-step approach on plans for reforming the EU’s asylum rules.

“The ministers also discussed the issues of asylum and immigration,” it read.

“They expressed their support for the phased approach, step by step, put forward by the French Presidency to make headway on these complex negotiations.

“On this basis, the Council will work over the coming weeks to define a first step of the reform of the European immigration and asylum system, which will fully respect the balance between the requirements of responsibility and solidarity.”

A planned overhaul of EU migration policy has so far foundered on the refusal of countries such as the Czech Republic, Hungary, Poland and Slovakia to accept a sharing out of asylum-seekers across the bloc.

That forces countries on the EU’s outer southern rim – Italy, Greece, Malta and Spain – to take responsibility for handling irregular migrants, many of whom are intent on making their way to Europe’s wealthier northern nations.

France is pushing for member states to commit to reinforcing the EU’s external borders by recording the details of every foreign arrival and improving vetting procedures.

It also wants recalcitrant EU countries to financially help out the ones on the frontline of migration flows if they do not take in asylum-seekers themselves.

Johansson was critical of the fact that, last year, “45,000 irregular arrivals” were not entered into the common Eurodac database containing the fingerprints of migrants and asylum-seekers.

Earlier, German Interior Minister Nancy Faeser suggested her country, France and others could form a “coalition of the willing” to take in asylum-seekers even if no bloc-wide agreement was struck to share them across member states.

She noted that Macron spoke of a dozen countries in that grouping, but added that was probably “very optimistic”.

Luxembourg’s foreign minister, Jean Asselborn, hailed what he said was “a less negative atmosphere” in Thursday’s meeting compared to previous talks.

But he cautioned that “we cannot let a few countries do their EU duty… while others look away”.

France is now working on reconciling positions with the aim of presenting propositions at a March 3rd meeting on European affairs.