The legal position of migrants in Denmark: Assessing the context around the "cartoon crisis"

European Journal of Migration and Law

Volumn 9, Issue 1, 2007, Pages 1-24

  Adamo, Silvia ^a  

^a UNIVERSITY OF COPENHAGEN   (Denmark)

Author keywords

Citizenship law; Denmark; Immigration law; Integration policies; Rights of migrants

Indexed keywords

EID: 34547590425     PISSN: 1388364X     EISSN: 15718166     Source Type: Journal    
DOI: 10.1163/138836407X179283     Document Type: Article

References (96)

1. The Islamic religion does not admit the representation of images of the prophet Mohammed, and several Muslim communities have therefore condemned the cartoons as an iconoclastic expression.
2. See for example R. Dworkin, The Right to Ridicule, The New York Review of Books, nr. 5, 23 May 2006.
3. In the article I will assume that there is a semantic difference between the term "migrant", referring to an individual who moves from a country to another, and "immigrant", a term that characterises a person who comes to a country where she is not born in order to settle there. Personsgranted the status of refugee do not voluntarily move but are relocated in another country to provide them international protection. The term migrant will then for the purpose of this article cover both refugees and immigrants.
4. L.B. Christensen et al., Udlandingeret(2006).
5. Thematic framework of AMID, Academy for Migration Studies in Denmark.
6. The Think Tank on Integration in Denmark, Background Report on Immigration and Integration Policies in Denmark and Selected Countries, Ministry of Refugee, Immigration and Integration Affairs, February 2004.
7. Adopted on 28 July 1951; Protocol relating to the Status of Refugees from 4 October 1967.
8. Adopted and opened for signature, ratification and accession by General Assembly Resolution 39/46 of 10 December 1984.
9. Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty of 28 April 1983.
10. Art. 3 in the ECHR and art. 3 in the UN Convention against torture.
11. Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.
12. Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities - Dublin Convention. Official Journal C 254, 19 August 1997 pp. 0001-0012.
13. As shown in the comparative study conducted in 1991 by the Danish Refugee Council: The Dublin Convention - Study on its implementation in the 15 Member States of the European Union, January 2001.
14. L.B. Christensen et al., Udlandingeret(2006).
15. Council Directive 2003/86/EC of 22 September 2003. See note 48 on the same matter.
16. The freedoms of movement and establishment for persons were already mentioned in art. 48 (now art. 39 EC) and art. 52 (now art. 43 EC) of the Treaty of Rome, but originally included only workers. They are now enshrined as rights for all citizens of the Union in art. 18 EC after the introduction of European citizenship in the Treaty of Maastricht in 1992.
17. See in particular case C-184/99 Grzelczyck, European Court Reports [2001] p. I-06193
18. and case C- 413/99, Baumbast, European Court Reports [2002] p. I-07091.
19. Directive 2004/38/EC of 29 April 2004, adopted by means of co-decision procedure between the European Parliament and the Council.
20. Aliens Consolidation Act [Bekendtgørelse af udlœndingeloven) nr. 945 of 01/09/06, subsequently referred to in the text as Aliens Act.
21. See section 4 in the following.
22. See section 4 in the following for a deepening of the scope and extent of this particular act and its implications for migrants' legal status.
23. Section 9(1) 1-d of the Aliens Act.
24. Section 7 (1) of the Aliens Act.
25. Section 7 (2) of the Aliens Act.
26. K. Kjair, Afskaffelse afdefacto-begrebet - fup eller fakta?, Juristen nr. 1, 2003.
27. A. Henriksen, Udlandingelovens § 7, stk. 2. Svaret er fakta, Juristen nr. 2, 2004
28. and further comment by K. Kjær, Om den nye B-status. En kommentar, Juristen nr. 6, 2004.
29. The Danish Refugee Council has been evaluating the last three years of practice in this area, deducing that especially two groups of refugee that before 2002 were granted residence permit are now not recognised as refugees. Namely on the one hand Somali nationals fleeing from war-ravaged territories (from 98% of granting of residence permit in 2001 to 12% in 2004) and on the other hand hardly traumatized persons that previously have been tortured or sexually assaulted in a country where the political situation has been stabilized. See publication Artikel 1anr. 1/2005, Danish Refugee Council and ECRE Country Report 2003: Denmark. For a description of the composition and work carried out by the Danish Refugee Council, see note 36.
30. Section 8 of the Aliens Act.
31. By means of Law nr. 403 of 01/06/2005.
32. Section 9 (b) of the Aliens Act.
33. In 2005, of the approximately 2.260 asylum applications that were filed, the Danish Immigration service decided to review about 1.280 cases according to the Dublin procedure, and among these 17% of applicants were granted asylum. Data available on the Danish Immigration Service's website, at www.nyidanmark.dk.
34. The so-called "starthjœlp" is regulated in the Active Social Policy Act and in the Integration Act.
35. The Article prescribes that "The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals." The Danish Refugee Council sustains that the poverty created without real opportunity for work creates a new group of proletariat and places refugees in Denmark in a weaker position then in the rest of Europe.
36. New rules give the municipal authorities the possibility to refuse to admit persons on basic welfare or the start-help to live in the housing areas that are usually offered by the same authority to persons on a low income. This because immigrants or refugees on a low income have in the latest years grouped together in the same neighborhood. The government policy on this area sustain that migrants in this complexes are "not in contact with Danish language and culture" and presumably this hinders their "social and ethnical integration". See government policy action: A new chance for everyone, and more on the same policy in section 4.
37. See the comment of Professor K. Ketcher in Artikel 1a, nr. 02/2005.
38. The Danish Refugee Council {Dansk Flygtningehjœlp) is a private, humanitarian and independent organization that operates as an umbrella organization with 33 member organizations. Since 1956 the organization has been working for refugee protection and promotion of lasting solutions to refugees' problems based on human rights and humanitarian principles on both the national and international level.
39. Section 53 (2) of the Aliens Act as modified by Law nr. 365 of 06/06/2002.
40. The report of the Commissioner for Human Rights Gil-Robles from 2004 found that "it would be most desirable (...) for the Board's original composition to be re-established". CommDH(2004) 12 p. 14.
41. The rules on family reunification for refugees do not differ substantially from the ones in force for third-country nationals, and will therefore be reviewed conjointly in section 3.2.3.
42. The practical legal consequences of this nationality " classification" are discussed in the end of section 3.2.3. The authority in charge of administrating the procedures on this matter is the Danish Immigration Service, which is a directorate within the Ministry of Refugee, Immigration and Integration Affairs.
43. Section 1 of the Aliens Act.
44. Other documents as driving license or bank cards can be used upon request for identification.
45. Section 3 of the Citizenship Consolidation Act 422 of 07/06/2004 {Bekendtgørelse of lov om dansk indfødsret).
46. Sections 2-3 of the Aliens Act.
47. Section 9 (a) of the Aliens Act.
48. Sections 6 and 9 (a) of the Aliens Act.
49. Section 9 (a) 6 of the Aliens Act.
50. Council Directive 2003/86/EC of 22 September 2003, OJ L 251 of 03/10/2003. The directive has the expressed purpose of harmonising national legislation in the European Union in order to ensure fair treatment of third country nationals, and to develop a more intensive integration policy between immigrants lawfully residing in the EU by means of active and uniform protection of the right to family reunification.
51. See for example Case C-60/00, Carpenter v Secretary of State for the Home Department[2002] p. I-06279, which may have significance for the general interpretation of Art. 8 ECHR.
52. Article 310 of the Treaty establishing the European Community, Official Journal C 325, 24 December 2002.
53. Article 9 of the agreement refers direcdy to the prohibition against discrimination on grounds of nationality in the Treaty establishing the European Community. Turkish citizens constitute the major immigrant group in European countries.
54. H. K. Nielsen, EUs associeringsaftale med Tyrkiet og dansk erhvervs- ogarbejdsret, EU-ret og Menneskeret Nr. 3 & 4/2000.
55. Section 2 (b) of the Aliens Act.
56. Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement.
57. Memorandum from the Ministry of Refugee, Immigration and Integration Affairs, 29 September 2004 [Notat om visumpraksis gœldende fra den 1. Oktober 2004), replaced but not substantially changed in September 2005 (Notat om visumpraksis galdende fra den 1. Oktober 2005).
58. Visas to nationals of this group are granted to spouses, cohabiting companions, boyfriends/girlfriends and fiancés, children irrespective of age, parents, siblings and their spouses, underage nieces and nephew and grandchildren, close acquaintances of previously foreign stationed Danes, sponsor children and older family members.
59. The entry ban list: comprises those aliens who have been deported from Denmark and subsequendy given an entry ban.
60. A pro-forma marriage occurs where there is reason to presume that the marriage or the cohabitating relationship was established with the main objective of achieving a residence permit. A forced marriage is defined as a marriage entered into against the wishes of one or both parts.
61. Draft bill LF 152 2001/2.
62. European Council Country Report 2003: Denmark.
63. Amount required in the 2006 Aliens Act, but subject to rate adjustment.
64. Section 9 of the Aliens Act.
65. Sections 11 (a) prohibits marriage among foreigners that do not have a lawful residence permit in the country (e.g. asylum seekers that are awaiting in Denmark a decision on their application), while section 11 (b) entails that the spouses are aware of the rules of the Aliens Act on family reunification in order to contract the marriage. Formation and Dissolution of Marriage Act nr. 147 of 09/03/1999 (Lovbekendtgerelse om agteskabets indgåelse og opløsning) as modified by Law nr. 365 of 06/06/2002. For a critical review of regulating migrants' legal status through marriage laws, see A. Kronborg, Ægteskabsbetingelser, Juristen nr. 3, 2005.
66. The Danish Center for Human Rights, Hvidbog om Ægtefœ llesammenføring, 2005.
67. J. Christoffersen, Forvaltningsretlig transparens: Om familiesammenføring i praksis, Juristen nr. 2, 2006.
68. I am here referring to what is known in Denmark as 'the Swedish solutionand/or 'the Slesvig solution', both informal and non-codified procedures. Foreigners that are Danish nationals but who cannot nevertheless meet the requirements for family reunification in Danish law, have sometimes no other way out than to move to Sweden or Germany to be included in the European law provisions on the protection of freedom of movement. These latter entail the right for a working European citizen who takes up residence in another European country to bring along her family. Since no requirement on attachment to the country, minimum age, adequate housing and so on is present in other European regulations, it is in this way 'easier' to be family reunited with a third-country national, if that is the wish of the migrant.
69. The Danish Center for Human Rights, Udredning om Ægtefœ llesammenføring, 2004.
70. See the concerns expressed in the Report by Mr. Alvaro Gil-Robles on his visit to Denmark, Office of the Commissioner for Human Rights, CommDH(2004) 12 of 8 July 2004 pp. 6-12, and the consequent Memorandum by the Ministry of Refugee, Immigration and Integration Affairs from 22 September 2004, assessing that Danish Law is not in violation of international obligations on human rights issues.
71. E/C.12/1/Add.102 of 14 December 2004, Consideration of reports submitted by State Parties under Articles 16 and 17 of the Covenant. The concluding observations encourage considering "alternative means of combating the phenomenon of forced marriage involving immigrant women" and taking "appropriate measures to cither repeal or amend the so-called 24-year rule" (recommendation nr. 29).
72. S. Jørgensen, Om tvangsœgteskaber som indgreb i kvinders rettigheder. Nye retlige design - Dansk ret under konkurrence, DJØF 2003.
73. European Council Country Report 2003: Denmark.
74. E/C.12/1/Add.102 of 14 December 2004, Consideration of reports submitted by State Parties under Articles 16 and 17 of the Covenant, Suggestions and recommendations nr. 26 and 34.
75. Adopted by General Assembly resolution 45/158 of 18 December 1990.
76. Section 11 (4) of the Aliens Act.
77. Ministry of Refugee, Immigration and Integration Affairs, Inspiration fir integration(2004).
78. Danish Integration Act nr. 902 of 31/07/2006 (Bekendtgørelse of lov om integration af udlœndinge i Danmark) and Executive Order on individual contracts and introduction program in the Integration Act nr. 252 of 28/03/2006 (Bekendtgørelse om udarbejdelse af individuel kontrakt og om introduktionsprogrammet efter integrationsloven) from the Ministry of Refugee, Immigration and Integration Affairs.
79. Section 1 of the Integration Act.
80. Section 3 of the Executive Order on individual contracts and introduction program in the Integration Act.
81. Section 11 (9) 1 of the Aliens Act.
82. The list includes specialists as engineers, scientists in the natural sciences and technology sector, IT-specialists, doctors and nurses. The list is revised on a continual basis.
83. An example of this can be found also in the area of citizenship regulation. In December 2005 the language requirement that must be fulfilled in order to file an application for naturalization has been substantially raised. There is medical evidence of the fact that refugees with post traumatic stress disorder have difficulties in learning new languages. Nevertheless, the circular now in force explicitly states that individuals suffering from this disease will not be eligible for an exemption from this requirement, even if their medical condition is "chronic and officially documented". See section 24 (3), note 4 in circular CIS nr. 9 of 12/01/2006.
84. Resolution nr. 1373 of 28 September 2001.
85. Chapter 7 a, sections 45 (a)-45 (c).
86. K. Kjzr, De udlœndingeretlige elementer af FN's terrorresolution i dansk ret, EU-ret og Menneskeret nr. 5, 2003.
87. Section 10 of the Aliens Act.
88. Art. 1 F prescribes that "the provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that (a) he has committed a crime against peace, a war crime, or a crime against humanity; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations".
89. Section 25 of the Aliens Act.
90. Draft bill 32 2001/02, referring to commission report (betœnkning) 1982/968.
91. Art. 3 in the European Convention on Human Right.
92. Individuals who cannot be sent back to their country origin on account of the non-refoulementprinciple can stay on a "tolerated residence" (tålt ophold)in Denmark. This is not a residence permit as it does not involve any right to integration, work or social assistance; it is the same kind of residence applied to rejected asylum seekers that cannot be sent out because of risk of torture or death penalty, but who nonetheless do not fall within the legal notion of refugee.
93. Section 19 (3) of the Aliens Act.
94. See chapter 5 in circular CIS nr. 9 of 12/01/2006 on the administrative guidelines in applications for citizenship.
95. Section 8 B in the Citizenship Consolidation Act 422 of 07/06/2004.
96. Violation of the Parts 12 and/or 13 in the Danish Criminal Code (danger for or threat to national security and public order, safety or health).