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The Danish Asylum Procedure
1. Asylum according to national legislation
2. General Description of the Asylum System
2. The application processes where Denmark is responsible for the claim
Unaccompanied minor asylum seekers
1. Asylum according to national legislation
Convention Status
Article 7 (1) of the Aliens Act deals with so-called Convention status. Individuals granted convention status fall under the protection of the UN Refugee Convention, which defines a refugee as someone who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his/her nationality.
A residence permit following status recognition under Article 7 (1) is granted for a maximum of two years at a time.
Protected Status
Article 7 (2) of the Aliens Act deals with so-called protected status. Individuals are granted protected status if returning to their home country would mean they face capital punishment, torture or inhumane or degrading treatment or punishment. The terms of Article 7 (2) are in accordance with other human rights conventions, including Article 3 and Protocol 6 of the European Human Rights Convention.
A residence permit following recognition under Article 7 (2) is granted for a maximum of one year and after one year for a maximum of two years at a time.
Temporary Protected Status
In some case, an individual who meets the requirements established by Article 7 (2) of the Aliens Act can be granted so-called temporary protected status in accordance with Article 7 (3) of the Aliens Act. Temporary protected status is granted to individuals who face capital punishment, torture or inhumane or degrading treatment or punishment due to severe instability and indiscriminate violence against civilians in their home country.
A residence permit after Article 7 (3) is granted for a maximum of one year and after three years for a maximum of two years at a time.
2. General Description of the Asylum System
The Immigration Service is the first instance responsible for assessing a claim for asylum and the Refugee Appeals Board is the second instance.
The appeal system in asylum cases is two-tiered.
If the Immigration Service rejects an application for asylum, the rejection occurs according to one of two different procedures. Most cases are decided according to the so-called normal procedure. This means that, if the asylum applicant is rejected by the Immigration Service, the case is automatically referred to the Refugee Appeals Board.
A minority of cases are considered manifestly unfounded and decided in an accelerated procedure or an expedited accelerated procedure in accordance with the Danish Aliens Act Article 53b. This occurs when the Immigration Service assesses that the applicant clearly cannot be granted asylum in Denmark. If the Danish Refugee Council which is a private, independent humanitarian organisation (NGO) agrees with the Immigration Service, the application will be rejected without contest. The asylum applicant cannot appeal this decision. On the other hand, if the Danish Refugee Council disagrees, the Immigration Service will generally still reject the application, but will nevertheless refer the case to the Refugee Appeals Board for a final decision.
Regardless of the procedure, the asylum seeker has the right to remain in Denmark until the Refugee Appeals Board has determined the outcome of the case (suspensive effect).
The asylum seeker is appointed an attorney when the case is pending before the Refugee Appeals Board. The lawyer's fee is subject to the rules applying when legal aid is granted.
Any foreign citizen present in Denmark has the right to request asylum. The foreign citizen can apply for asylum regardless of whether he/she is in Denmark legally. Asylum can only be requested if the applicant is in Denmark.
Asylum can be requested in one of two ways:
· In person at a police station in Denmark
· In person at the reception centre at Sandholm Accommodation Centre
Applicants applying for asylum in writing (which involves sending a letter to the Immigration Service, although this seldom happens in practice) will be asked to appear at a police station or at Sandholm Accommodation Centre, where they will be registered.
The applicants will be photographed and fingerprinted by the police as a part of the registration process. They will then be assigned accommodation in an asylum centre.
The application for asylum is processed at the Immigration Service after the registration process is complete.
During the first step in the application process, the Danish Immigration Service determines whether the Danish immigration authorities are responsible for processing the application or if another country is responsible in accordance with the Dublin Regulation. The Dublin procedure is regulated in the Danish Aliens Act Article 29a.
If the asylum seeker has been granted international protection in another Member State in the European Union, the Danish Immigration Service can decide to reject the processing of the application in accordance with the Danish Aliens Act Article 29b. A decision to reject the processing of an asylum application can be appealed to the Refugee Appeals Board. The appeal does not have suspensive effect.
The Dublin Regulation is primarily concerned with identifying which country is responsible for processing an application for asylum. The regulation includes criteria for determining which country is responsible. In order of precedence, they are:
1. The country where the applicant’s family is legally present.
2. The country that issued the applicant’s residence permit or visa.
3. The first Member State the applicant entered as an undocumented foreign national.
4. The country where the applicant initially requested asylum.
As part of the registration process, asylum seekers will be asked to appear for a meeting at the Immigration Service to determine their motive for seeking asylum as well as to obtain other information.
The Immigration Service will seek to identify whether the immigration authorities in another Member State have previously registered the applicant. If that is the case, the applicant’s request for asylum may not be processed in Denmark.
If the Immigration Service determines that another Member State is responsible for processing an asylum seeker’s application under the Dublin Regulation, that country will normally be asked to assume responsibility for the application. If the country accepts responsibility, the asylum seeker will be transported to the country and have his/her application for asylum processed there.
The same procedure applies if an asylum seeker is having an application for asylum processed in another Member State. In that case the other country will be asked to accept the return of the asylum seeker and if the other country accepts, the asylum seeker will be returned to that country.
Appeals
If the Immigration Service requests another country to assume responsibility for an asylum seeker in order to process the asylum seeker's application for asylum, the asylum seeker has the right to appeal the decision to the Refugee Appeals Board. An asylum seeker appealing a decision from the Immigration Service can receive free legal assistance and can be represented by the Danish Refugee Council.
Asylum seekers have the right to remain in Denmark until the Refugee Appeals Board issues its ruling.
Asylum seekers have seven days to appeal a decision from the Immigration Service. The Immigration Service must have received the intention to appeal within seven days of the asylum seeker being informed of the decision. If an appeal is lodged after seven days, it will normally be rejected.
2. The application processes where Denmark is responsible for the claim
If Denmark is the country responsible for processing an application for asylum, the application can be processed according to three different procedures:
1. Normal procedure
2. Manifestly unfounded procedure
3. Expedited version of manifestly unfounded procedure
Normal procedure
When applications are processed according to the normal procedure, the Immigration Service will normally decide whether to grant asylum after the first interview. If the motives for seeking asylum are more complicated, the Immigration Service will call the asylum seeker to a follow-up interview. Given the increase in numbers during 2015 the time lines for such processes are variable.
The Immigration Service decides whether to grant asylum on a case-by-case basis. The Immigration Service considers the information the applicant provides, as well as general background information about conditions in the applicant’s home country.
If the applicant is granted asylum, the Immigration Service will assign the applicant to a local municipality where he/she is to reside. The local municipality to which the applicant is assigned is responsible for the integration process.
If the application is rejected, it will automatically be referred to the Refugee Appeals Board for review. The applicant will be appointed a lawyer to represent him/her.
The decision issued by the Refugee Appeals Board is final. If the Refugee Appeals Board upholds the Immigration Service’s decision, the applicant will be required to leave Denmark.
Unfortunately, the duration of such processes are difficult to provide since the increase in arrivals during 2015 has meant that the time lines are very variable.
Manifestly unfounded applications
The Immigration Service can, in consultation with the Danish Refugee Council, decide that an application is manifestly unfounded and that it does not need to be reviewed by the Refugee Appeals Board in accordance with the Danish Aliens Act Article 53b. This would be the case if an asylum seeker has no valid grounds for seeking asylum, or if the applicant’s grounds for seeking asylum do not warrant protection.
The Immigration Service will normally decide after the first meeting whether an asylum seeker’s request is manifestly unfounded. If the Immigration Service finds that a request for asylum is manifestly unfounded, the asylum seeker will be invited to a meeting with the Danish Refugee Council before the Immigration Service makes a decision on the case.
If the Danish Refugee Council agrees with the Immigration Service, the decision will be upheld. The decision is final. If the Danish Refugee Council disagrees with the decision from the Immigration Service, the application will be processed according to the normal procedure, with access to making an appeal at the Refugee Appeals Board in accordance with the same time lines as previously noted.
Expedited version of manifestly unfounded applications
An expedited application processing procedure has been established for asylum seekers from certain specific countries. The procedure is called the expedited version of the manifestly unfounded procedure. In these cases there is an advanced presumption that the application can be rejected on grounds that it is manifestly unfounded.
The list of countries whose applicants are processed according to the expedited version of manifestly unfounded procedure was most recently updated on 30 March 2017, and includes EU Member States, Norway, Switzerland and Iceland, as well as Albania, Australia, Bosnia and Herzegovina, Canada, Japan, Kosovo, Macedonia, Moldova, Mongolia, Montenegro, New Zealand, Serbia and the United States. Russia is also included on the list, but certain exemptions apply.
An asylum seeker whose request is processed according to the expedited version of manifestly unfounded procedure does not need to complete an application for asylum, and the individual is quickly referred for an interview with the Immigration Service. As in other manifestly unfounded requests, the Danish Refugee Council is asked for an evaluation. If the Danish Refugee Council agrees with the Immigration Service’s decision, a rejection will be granted in an expedited process with no access to making an appeal to the Refugee Appeals Board. If the Danish Refugee Council disagrees with the decision from the Immigration Service, the application will be processed according to the normal procedure.
Approval
If an applicant is granted asylum, the Danish Immigration Service will assign the refugee to a local municipality where he/she is to reside. The local municipality to which the refugee is assigned is responsible for the integration process.
The Refugee Appeals Board is responsible for reviewing appeals of Immigration Service decisions on some applications for asylum in accordance with the Danish Aliens Act Article 53a. If the applicant’s request for asylum has been denied, the avenue of appeal is determined by whether the application was processed according to standard procedure, manifestly unfounded procedure, or expedited version of manifestly unfounded procedure.
Normal procedure
Applications for asylum that have been rejected by the Immigration Service after being processed according to the standard procedure will automatically be reviewed by the Refugee Appeals Board in accordance with the Danish Aliens Act Article 53a
When an application is sent to the Refugee Appeals Board for review, the applicant will be informed in writing that the application has been rejected by the Danish Immigration Service.
Manifestly unfounded and expedited version of manifestly unfounded
Applications the Immigration Service deems manifestly unfounded are sent to the Danish Refugee Council for review.
Applications that were initially processed in the manifestly unfounded procedure or the expedited version of the manifestly unfounded procedure but referred to the normal procedure by the Danish Refugee Council will automatically be reviewed by the Refugee Appeals Board.
The applications will be processed by the chair or vice-chair of the Refugee Appeals Board single-handedly in writing, unless the Refugee Appeals Board assumes that there is reason to change the decision from the Immigration Service. If the Refugee Appeals Board assumes that there is reason to change the decision the case will be processed by a full Board in writing. The applicant will be appointed a lawyer who will submit pleadings in writing. The decision will be served on the asylum seeker by the police.
The Refugee Appeals Board is a quasi-judicial body. The members of the Board are independent and may not accept or seek directions from anyone including the appointing or nominating authority or organisation.
According to the Danish Government, the Board is considered to be a court within the meaning of Article 39 of the EU Council Directive on asylum procedures (2005/85/EC) concerning the right for asylum seekers to have their case examined by a court or tribunal.
Asylum cases are heard by a board consisting of three members. The chairman must be an appointed judge. One member is appointed by the Ministry of Refugee, Immigration and Integration Affairs, and one member is appointed upon nomination from the Council of the Danish Bar and Law Society.
In the accelerated procedure, the cases are decided by the appointed judge only.
When assessing an application for asylum the Board has the full competence in assessing the facts and the points of law.
If the Refugee Appeals Board agrees with the Immigration Service’s rejection, the decision is upheld. If the Refugee Appeals Board disagrees with the Immigration Service’s rejection, the applicant will be granted residence in accordance with Article 7 (1), (2) or (3) of the Aliens Act.
Pursuing to Article 56 (8) of the Danish Aliens Act Board decisions are final, which means that Board decisions are not subject to judicial review. This has been established before the Supreme Court. The judgements in these cases have concluded that the Board is an expert board of a quasi-judicial nature and that deliberations of the courts are limited to points of law. Once it issues a decision, an asylum seeker has no further avenues of appeal. If an asylum seeker whose request for asylum has been rejected refuses to leave Denmark voluntarily, the individual will be escorted out of the country by the police.
The proceedings before the Board
With the exception of cases in the accelerated procedure proceedings, all Board hearings are, in general, oral. If the case is referred to be considered under an oral proceeding at the Board, the hearing is attended by the asylum-seeker, the attorney, an interpreter and a representative of the Immigration Service.
During the hearing, the asylum-seeker has an opportunity to make a statement and reply to questions. Then the attorney and the representative of the Immigration Service have an opportunity to present their legal arguments, whereupon the asylum-seeker makes a final statement.
After the deliberations of the Board, a written decision is drafted, reproducing the information available in the case and the decision of the Board with its grounds.
Normally, the Board decision will be served the same day on the asylum-seeker in direct continuation of the Board hearing, and at the same time the chairman will give a brief explanation of the decision made.
Unaccompanied minor asylum seekers
When foreign nationals under the age of 18 come to Denmark and seek asylum without their parents or other adults who can replace the parents, they are termed 'unaccompanied minor asylum seekers'.
As a general rule, unaccompanied minor asylum seekers must meet the same requirements as other asylum seekers in order to have their application processed in Denmark.
However, unaccompanied minor asylum seekers are considered a particularly vulnerable group, and special guidelines have been devised for processing their cases. Among other things this means that their applications will be processed quickly, and that they will be housed in special accommodation centres with specially trained staff.
Personal representative
Every unaccompanied minor will be appointed a personal representative to serve his/her interests. Among other things, the representative will offer support to the unaccompanied minor during the processing of the case, for example by accompanying the unaccompanied minor during the asylum interview. The representative will also support the unaccompanied minor on a more personal level. The Immigration Service will ask the Danish Red Cross to recommend a representative to the Regional State Administration (Statsforvaltningen), which will appoint the representative. The representative may not be affiliated with the immigration authorities, and can be a relative or other private individual.
Search for relatives
Following the arrival of the unaccompanied minor to Denmark and after the first interview with the Immigration Service, the Immigration Service will launch a search of the unaccompanied minor's parents or other relatives, if their place of residence is unknown and if the minor agrees. The search may be carried out in collaboration with an organisation approved for this task by the Minister of Immigration, Integration and Housing.
A search can normally only be launched if the unaccompanied minor agrees to it.
If there are reception or care centres in the unaccompanied minor's country of origin, the Immigration Service is not obliged to launch a search for his/her relatives.
Unaccompanied minors who do not agree to launch a search for their relatives, or who come from countries where there are reception or care centres, can use the search service of the International Red Cross. The personal representative can assist the minor in the search. The International Red Cross can help the unaccompanied minor locate parents and other relatives in confidentiality, that is, without forwarding the result of the search to the authorities.
If the unaccompanied minor is not mature enough for the case to be processed
Unaccompanied minors will only be required to complete the asylum procedure if they are deemed sufficiently mature. The assessment of whether the minor is sufficiently mature includes the minor’s age and the minor’s understanding of the asylum procedure. If the Immigration Service assesses that an unaccompanied minor is not mature enough, he/she can be granted a residence permit under the Danish Aliens Act Article 9c (3) (i) without being required to go through the asylum procedure.
In order to qualify for a residence permit under Article 9c (3) (i), the unaccompanied minor may not have family or access to public care or similar in his/her country of origin and consequently would be left to fend for him/herself if returned to that country. When processing the case, the Immigration Service will take into consideration information about the unaccompanied minor's health and need for special care and assistance, as well as the general situation in his/her country of origin, such as war.
Furthermore, in order to qualify for a residence permit under Article 9c (3) (i), the unaccompanied minor may not have access to a reception or care centre in his/her country of origin. This condition applies to unaccompanied minor asylum seekers who enter Denmark from 1 January 2011 onwards.
In these cases, a residence permit will be granted under the Danish Aliens Act, Article 9c (3) (i). The residence permit is valid until the unaccompanied minor is mature enough for the asylum case to be processed.
The minor can always choose to have the asylum case processed even if the Danish Immigration Service does not find that the minor is mature enough.
If the unaccompanied minor is mature enough for the case to be processed
If the Immigration Service decides that the unaccompanied minor is mature enough for the case to be processed the application for asylum will be processed according to the same application process as adult asylum seekers with regard to the special guidelines that have been devised for processing asylum applications from unaccompanied minor asylum seekers.
Legal assistance
If an unaccompanied minor asylum seeker's asylum case is processed according to the manifestly unfounded procedure, the Immigration Service will appoint an attorney to represent the unaccompanied minor during the processing of the case.
If the asylum case is processed according to the normal procedure, and if the application is rejected by the Immigration Service, an attorney will be appointed to represent the unaccompanied minor in connection with the Refugee Appeals Board's processing of the appeal case.
Unaccompanied minors whose application is rejected will still be offered assistance by the appointed attorney. Among other things, the attorney can assist the unaccompanied minor in relation to applying for a residence permit on other grounds (listed below) and - if such an application is rejected - in relation to the unaccompanied minor's return to his/her country of origin.
Asylum
If an unaccompanied minor is granted asylum, the residence permit is initially limited to a period of 4 years. When this residence permit is about to expire, the unaccompanied minor can apply for an extension. If the unaccompanied minor has turned 18, he/she can apply for a permanent residence permit if he/she meets the requirements. Such requirements change very often and often depend on the goverment. If the unaccompanied minor has not turned 18, or if he/she does not meet the requirements for a permanent residence permit, he/she can apply for an extension of the residence permit if he/she meets the requirements.
If the unaccompanied minor's application for asylum is rejected
If the asylum application is rejected an unaccompanied minor can be granted a residence permit under the Danish Aliens Act Article 9c (3) (ii) if he/she has no family or access to public care or similar in his/her country of origin and consequently would be left to fend for him/herself.
Furthermore, in order to qualify for a residence permit under Article 9c (3) (ii), the unaccompanied minor may not have access to a reception or care centres in his/her country of origin. This condition applies to unaccompanied minor asylum seekers who enter Denmark from 1 January 2011 onwards.
In these cases, a residence permit will be granted under the Danish Aliens Act, Article 9c (3) (ii).
Residence permit as an unaccompanied minor
If an unaccompanied minor is granted a residence permit as an unaccompanied minor under the Danish Aliens Act, Article 9c (3), the residence permit will normally be granted for one year, depending on the age of the unaccompanied minor. After this point, the holder can apply for an extension. In order to be granted an extension the unaccompanied minor must continue to meet the requirements of either Article 9c (3) (i) or (ii).
This residence permit will always expire when the unaccompanied minor turns 18. After this point, the unaccompanied minor will normally have to leave Denmark.
In extraordinary cases, it is possible to grant a residence permit after the unaccompanied minor turns 18 under the Danish Aliens Act Article 9c (1). This could be the case if the minor has no connection with his/her country of origin, because he/she left the country at a very young age and if the connection to Denmark is sufficiently strong.
These rules apply to all unaccompanied minors who have entered Denmark from 1 January 2011 onwards.
Appeal of rejections under Article 9c (3) (i) and (ii)
If an application for a residence permit under the Danish Aliens Act, Article 9c (3) (i) and (ii) is rejected, the case can be appealed to the Refugee Appeals Board.
There are no time limits for lodging an appeal under the Danish Aliens Act Article 9c (3) (i).
If an appeal regarding an application for a residence permit under the Danish Aliens Act, Article 9c (3) (ii) is submitted less than seven days after the Immigration Service has announced its decision to the unaccompanied minor, he/she may stay in Denmark during the appeal process. However, if the appeal is submitted after this point, the unaccompanied minor will normally have to leave Denmark during the processing of the case, unless the Refugee Appeals Board decides to grant the minor a procedural stay. In practice, the minor will not be sent back to his/her country of origin unless the police can establish contact to the family, which in general is very difficult.
Grounds for detention
Article 36 of the Aliens Act provides a general ground for justifying detention, according to which non-citizens may be detained if non-custodial measures are deemed insufficient to ensure enforcement of a refusal of entry, expulsion, transfer or retransfer of non-citizen. Further, non-citizens may be detained in the context of his/her arrival to Denmark, for the purpose of verifying his/her identity, conduct registration and establish the basis for his/her application (Article 36(1)).
The same provision spells out several more precise grounds for detention: a person who has applied for residence permit can be detained if he refuses to stay at a place designated by the authorities or fails to appear for an interrogation at the police or the Immigration Service (Article 36(2)); asylum seekers can be detained if they do not assist the authorities in substantiating the asylum application, including by failing to appear at interrogations by the police or Immigration Service, concealing information about his identity, nationality or travel route (Article 36(4)); non-citizens to be deported may be detained if they do not cooperate with the police in making arrangements for deportation (Article 36(5)-(8)).
The Aliens Act sets out that the initial period of detention is not to exceed six months. The court may extend this period by another 12 months if deportation arrangements take longer because of detainee’s lack of cooperation in the return process or there are delays in obtaining the necessary travel documents (Article 37(8))
Detention is fairly common in Denmark. However, no official statistics exit. The Danish Refugee Council does, however, monitor detention through its counselling in prisons.
Judicial review
According to Article 37, any non-citizen deprived of liberty under Article 36 must be brought before a court of justice within three days in order for the court to “rule on the lawfulness of the deprivation of liberty and its continuance” (Article 37(1)). The person must also be assigned a legal counsel (Article 37(2)). According to government sources, detainees are always informed of the reason of their detention in a language they understand. When a person is detained by the police they receive an oral explanation why they are being detained and when they appear in court a written decision is provided and entered in the court record.
During periods of high numbers arrivals, migration authorities can declare “special circumstances,” which temporarily suspends some safeguards. During the periods declared “special circumstances” a hearing does not take place within 72 hours following the arrest but “as soon as possible” and only at the request of the applicant. In this context, courts only assess the legality of the detention, and do not rule on the duration of its possible extension. Following a decision on the legality of detention in a particular case, there is no right for another review within four weeks (Article 37k (1) - (2)).
Alternative to detention
The Aliens Act provides a number of non-custodial alternatives to detention, including: confiscation of passports; the payment of a bail; residence at “an address determined by the police”; and reporting to the police at specified times. (Article 34). These alternatives are used in practice, but in the majority of cases the Courts tend to approve the extension of detention.
Criminalisation
Part IX of the Aliens Act contains “penalty provisions.” Article 59(1) provides for a fine or imprisonment for up to 6 six months for non-citizens who enter or leave Denmark at a non-designated passport check-point; stay in Denmark without the requisite permit; or by deliberate misrepresentation secures admission in to Denmark or documents. In practice individuals are fined rather than being placed in prison.
Regulation of conditions of detention
The Aliens Act does not explicitly designate places where migrants are to be detained. However, it provides that deprivation of liberty for the purpose of return must be effected in special institutions and if this is not possible, the non-citizen must be kept separate from ordinary prison inmates (Article 37(10)). It also provides that immigration detainees shall not be subject to other limitations to liberty than required by the purpose of the deprivation of liberty and the maintenance of order and security at the place where the alien is detained. Non-citizens are entitled to receive visitors, letters and communicate with the outside world. The Aliens Act sanctions the use of solitary confinement when this is judged necessary for obtaining the information needed for assessing the legality of the non-citizen’s stay in Denmark or possibility to issue a residence permit. The maximum length of solitary confinement is 4 weeks (Article 37b-e).
This EDAL Country Profile was written by the Danish Refugee Council.
Resource category:
Country Overview
Resource country:
Denmark
Resource date:
01-02-2018
