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

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
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?

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. 
 
 
 
 

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