L 174 - 2008-09 - Bilag 1: Høringssvar, fra integrationsministeren

UNHCR’s Comments on the proposed amendments tothe Danish Aliens ActDenmark is proposing a number of amendments to the Aliens Act (Forslag tilLov om ændring af udlændingeloven).The United Nations High Commissioner for Refugees (UNHCR) is entrusted bythe United Nations General Assembly with the responsibility for providinginternational protection to refugees, and for seeking permanent solutions forthe problem of refugees. According to its Statute, UNHCR fulfils its mandateinter aliaby “[p]romoting the conclusion and ratification of internationalconventions for the protection of refugees, supervising their application andproposing amendments thereto”, which includes supervision of nationallegislation, and proposed amendments thereto, of signatory countriesregulating the application of the 1951 Convention relating to the Status ofRefugees. UNHCR’s supervisory responsibility under its Statute is reiterated inArticle 35 of the 1951 Convention and Article II of the 1967 Protocol relating tothe Status of Refugees. The Office therefore appreciates the opportunity toprovide comments on the proposed amendments to the Aliens Act.PROPOSED AMENDMENTS IN REGARD TO UN AND EU SANCTIONSLISTSSection 10, paragraph 5 of the proposal provides that an alien who is subjectto restrictive measures regarding entry and transit as decided by the UN or/andthe EU [themotivationrefers to the consolidated list of the United NationsSecurity Council Committee established pursuant to resolution 1267 (1999)(hereinafter the UN SC sanction list) and the Council Common Position2001/931/CFSP of 27 December 2001 on the application of specific measuresto combat terrorism as well as the consolidated list of persons, groups andentities subject to EU financial sanctions (hereinafter commonly referred to asthe EU sanction lists)], will not be granted a residence permit, namely basedon section 7 (Convention refugee or protection (de facto) status), unless thereare specific reasons supporting the granting of (such) a residence permit.Moreover, section 19, paragraph 3 of the proposal states that a temporary orpermanent residence permit may be revoked if the alien is subject to restrictivemeasures regarding entry and transit as decided by the UN or/and the EU[who is on the UN SC or/and EU sanction lists] and/or if he or she is on the SISII alert list (not being a national of a Schengen country and in accordance withArticle 25 Schengen Convention) or if the holder is reported as undesirablebecause of circumstances which could lead to expulsion under Chapter IV ofthe Aliens Act.Section 19, paragraph 7, new item of the proposal provides that in decisionson the revocation of temporary or permanent residence permits due to the1

alien being subject to restrictive measures regarding entry and transit asdecided by the UN or/and the EU [UN SC or/and EU sanction lists] or becausean SIS II alert has been issued, Section 26, paragraph 2 appliescorrespondingly. Section 26(2) of the Consolidated Aliens Act states that analien must be expelled (…) unless the circumstances mentioned in paragraph1 constitute a decisive argument against doing so.Section 32, paragraph 8 of the proposal provides that an alien who is subjectto restrictive measures regarding entry and transit as decided by the UN or/andthe EU [who is on the UN SC or/and EU sanction lists] is prohibited from re-entering Denmark. The prohibition of entry does not apply once the restrictiveEU/UN measures cease or if the alien has been granted a residence permit onspecial grounds.Section 58g, paragraph 2 of the proposal states that the National PoliceCommissioner can enter an alien who is subject to restrictive measuresregarding entry and transit as decided by the UN or/and the EU [who is on theUN/EU sanction lists] into the SIS II as a undesirable person (Schengen/SIS IIalert) unless he or she is a national of a Schengen country.UNHCR’s COMMENTS1. General commentsThe amendments mentioned above provide for a number of restrictions (nopermission to enter or re-enter Denmark, no issuance of a residence permit,revocation of residence permit and expulsion as well as SIS II alert) forpersons who are “subject to restrictive measures regarding entry and transit asdecided by the UN or/and the EU” (“restriktive foranstaltninger i form afbegrænsninger med hensyn til indrejse og gennemrejse besluttet af DeForenede Nationer eller Den Europæiske Union”). Themotivationrefers to theconsolidated list of the United Nations Security Council Committee establishedpursuant to resolution 1267 and the European Council Common Position2001/931/CFSP of 27 December 2001 on the application of specific measuresto combat terrorism (‘EU terrorist list’) as well as to the consolidated list ofpersons, groups and entities subject to EU financial sanctionsas examplesofrestrictive measures by the UN and the EU.The open wording gives considerable discretion to the authorities in theapplication of restrictions such as denial of entry, revocation of residencepermits (including based on an individual’s refugee status) or expulsion and re-entry. These decisions can have potentially serious consequences for theconcerned individual. A more defined and exhaustive definition of “restrictivemeasures regarding entry and transit as decided by the UN or/and the EU” inthe Aliens Act would offer clearer guidance from the law makers to theauthorities and provide for sufficient legal certainty. UNHCR thereforerecommends to describe in the relevant provisions, in a more defined andexhaustive manner, what is meant by restrictive measures as decided by theUN and the EU.2. Access to the asylum procedure and non-refoulement at the border

Two of the main cornerstones and most fundamental obligations for Statesderiving from international refugee law are (1) the admission to the territoryand non-rejection at the borders and (2) the admission into due procedures.Access for asylum seeking individuals to the territory of States where theirprotection needs can be assessed properly is essential for a fair and efficientasylum system and the best quality asylum system will only be able to provideinternational protection to persons fleeing persecution if the asylum procedureremains accessible.The UNHCR Handbook provides that an applicant should be permitted toremain in the country pending a decision on his or her initial request by thecompetent authority, unless it has been established by that authority that his orher request is clearly abusive. The applicant should also be permitted toremain in the country while an appeal to a higher administrative authority or tothe courts is pending.1If an applicant is not permitted to await the outcome of an appeal or even thefirst instance decision in the territory of the country in which he seeks asylumor if he or she is simply not given access to the asylum procedure, the remedyagainst the first instance decision, the possible positive but still pendingasylum decision or the right to seek asylum as such, in practice, will be most ofthe time ineffective. In that respect, the possibility to enter and stay in thecountry until an asylum decision has been taken can serve as a criticalsafeguard, given the potentially serious consequences of lacking access to an(fair and efficient) asylum procedure or of an erroneous decision. To giveaccess to the asylum procedure and to enable the asylum seeking person towait for the outcome of the decision is often essential to ensure respect for theprinciple of non-refoulement.It is UNHCR’s understanding that Section 48a Aliens Act also applies topersons on the UN/EU sanction lists if they apply for asylum. Section 48a(1)provides that the Danish Immigration Service can decide to refuse entry to analien, among other reasons, based on Section 28 Aliens Act which states,namely, that an alien prohibited from entry with no visa and a non-Schengennational with a Schengen alert (SIS II alert) can be prohibited to enterDenmark. UNHCR understands that this may include persons subject torestrictive measures by the UN or EU (i.e. who are on one of the UN/EUsanction lists). Section 48a(2) provides that an asylum application “will not beexamined until the Danish Immigration Service has decided to refrain fromrefusal of entry, expulsion transfer or retransfer and return” according toSection 48a(1).Crucially, Section 48a(1) second part provides that “[r]eturn under the firstsentence thereof may not be effected to a country where the alien will be atrisk of the death penalty or of being subjected to torture or inhuman ordegrading treatment or punishment, or where there is not protection againstreturn to such country.”

Related to the above, UNHCR notes that the reference to “special grounds”(“særlige grunde”) in Section 32 provides for exceptions to the rule that aperson on the UN or/and EU sanction lists cannot re-enter and reside inDenmark and that no (temporary) residence permit will be issued. At the sametime no explicit reference to asylum seekers or Section 48a is made.UNHCR’s understanding is that persons who are seeking asylum, as a rule, asbeing exempt from not being allowed to enter (or re-enter) and reside inDenmark as long as their claim is pending which should include the appealprocedure. Exceptions to this principle should only be permitted in preciselydefined cases, where there is clearly abusive behaviour on the part of anapplicant, or where the unfoundedness of a claim is manifest. Here, theautomatic application of suspensive effect (as defined in Executive CommitteeConclusion No. 30 (XXXIV) of 1983) could be lifted. In that regard UNHCRwould like to emphasise that the fact as such that an applicant is on the UN SCor/and EU sanction lists is not rendering his or her asylum claim clearlyabusive.Moreover, UNHCR has long taken the position that national procedures fordetermination of refugee status may usefully provide for dealing in anaccelerated procedure with manifestly unfounded applications for refugeestatus or asylum. These procedures should, however, include certainprocedural safeguards regardless of whether the claim is presented at theborder or within the territory. These guarantees should also be applied to pre-admission/screening procedures at the border. Furthermore, these guaranteesshould be respected in procedures dealing with first country of asylum cases(for procedural guarantees see UNHCR's Position on Manifestly UnfoundedApplications for Asylum, adopted by the Ministers of the Members States of theEuropean Communities responsible for Immigration in London on 30November - 1 December 1992).3. Counter-terrorism and responses in international refugee lawActs of terrorism and refugee lawBearing in mind that there is, as yet, no internationally accepted legal definitionof terrorism, the international refugee protection regime, if applied judiciously,provides for principled, fair and practical legal responses when one is facedwith the challenge of abiding to international obligations, in particular frominternational refugee law, while countering terrorism. These include the duedetermination of refugee status, the granting of that status only upon clearlyestablished criteria, the exclusion from that status of those who havecommitted war crimes, crimes against humanity or serious non-political crimesoutside the country of refuge and the cancellation of the status of those whosubsequently exhibit odious intentions or purposes and the ability of States toremove from their territories such persons under due process. In short, theexisting legal framework made available through the 1951 RefugeeConvention provides for an adequate legal response to address questionsrelated to acts of terrorism while ensuring that persons fleeing frompersecution obtain international protection.Refugee criteria and persons linked to terrorism4

In various cases, consideration of the exclusion clauses will not be necessaryin relation to terrorist suspects as their fear will be of legitimateprosecutionforcriminal acts as opposed topersecutionfor a 1951 Convention reason.ExclusionWhere an individual has committed terrorist acts as defined within theinternational instruments (such as the 1979 International Convention againstthe Taking of Hostages or the 1999 International Convention for theSuppression of the Financing of Terrorism to name two examples)2and a riskofpersecutionis at issue, the person may be excludable from refugee status.In these circumstances, the basis for exclusion under Article 1F will depend onthe act in question and all surrounding circumstances. In each and every case,individual responsibility must be established, that is, the individual must havecommitted the act of terrorism or knowingly made a substantial contribution toit. This remains the case even when membership of the organisation inquestion is itself unlawful in the country of origin or refuge.The fact that an individual may be on a list of terrorist suspects or associatedwith a proscribed terrorist organisation should trigger consideration of theexclusion clauses. Depending on the organisation, exclusion may bepresumed but, importantly, it does not mean exclusion is inevitable.In many cases, Article 1F(b) is applicable as violent acts of terrorism are likelyto fail the predominance test used to determine whether the crime is political.Moreover, if one of the international treaties has abolished the political offenceexemption in relation to extradition for the act in question, this would suggestthat the crime is non-political for the purposes of Article 1F(b). It is not,however, a case of deeming all terrorist acts to be non-political but of judgingthe individual act in question against the Article 1F(b) criteria.Although providing funds to “terrorist groups” is generally a criminal offence,such activities may not necessarily reach the gravity required to fall underArticle 1F(b). The particulars of the specific crime need to be looked at – if theamounts concerned are small and given on a sporadic basis, the offence maynot meet the required level of seriousness. On the other hand, a regularcontributor of large sums to a terrorist organisation may well be guilty of aserious non-political crime. Apart from constituting an excludable crime in itself,financing may also lead to individual responsibility for other terrorist crimes.For example, where a person has consistently provided large sums to a groupin full knowledge of its violent aims, that person may be considered to be liablefor violent acts carried out by the group as his or her monetary assistance hassubstantially contributed to such activities.While Article 1F(b) is of most relevance in connection with terrorism, in certaincircumstances a terrorist act may well fall within Article 1F(a), for example as acrime against humanity. In exceptional circumstances, the leaders of terroristorganizations carrying out particularly heinous acts of international terrorism

which involve serious threats to international peace and security may beconsidered to fall within the scope of Article 1F(c).In the international community’s efforts to combat acts of terrorism it isimportant that unwarranted associations between terrorists andrefugees/asylum-seekers are avoided. Moreover, definitions of terrorist crimesadopted on the international, regional and national level will need to beextremely precise to ensure that the “terrorist” label is not abused for politicalends, for example to prohibit the legitimate activities of political opponents.Such definitions may influence the interpretation of the exclusion clauses and,if distorted for political ends, could lead to the improper exclusion of certainindividuals. Indeed, unwarranted applications of the “terrorist” label couldtrigger recriminations amounting to persecution against an individual.Conclusions and recommendationsScope of proposed Section 10(5):Taking all of the above into account,UNHCR would like to highlight that if the proposed Section 10(5) i.e. that merefact that a person figures on one or more of the UN/EU sanction list was meantto be a stand-alone ground for not granting refugee status, this would be ofserious concern to UNHCR. As explained above, the fact that an individualmay be on a list of terrorist suspects or associated with a proscribed terroristorganisation should trigger consideration of the exclusion clauses. Dependingon the organisation, exclusion may be presumed but, importantly, it does notmean exclusion is inevitable.If relevant facts become known after protection status was granted:Generalprinciples of administrative law allow for the cancellation of refugee statuswhere it is subsequently revealed that the basis for such a decision wasabsent in the first place, either because the applicant did not meet theinclusion criteria or because one of the exclusion clauses would have appliedat the time of decision-making had all the facts been known. Cancellation is,however, not related to a person’s conduct post determination. It is importanttherefore to differentiate between cancellation of refugee status on the basis ofexclusion and expulsion or withdrawal of protection fromnon-refoulementunder Articles 32 and 33(2) of the 1951 Convention. The former rectifies amistaken grant of refugee status, while the latter provisions govern thetreatment of those properly recognised as refugees.Scope of proposed Section 19(3):If Section 19(3) of the proposal, i.e. thatmere fact that a person figures on one or more of the UN/EU sanction list, wasmeant to provide for a stand-alone ground for the revocation of a residencepermit granted on the basis of refugee or protection (de facto) status (Section7), this would be reason for grave concern to UNHCR. As pointed out in theparagraph before, general principles of administrative law allow for thecancellation of refugee status where it is subsequently revealed that one of theexclusion clauses would have applied at the time of decision-making had allthe facts been known. Moreover, as mentioned before as well, the fact that anindividual may be on a list of terrorist suspects or associated with a proscribedterrorist organisation should trigger consideration of the exclusion clauses.Depending on the organisation, exclusion may be presumed but, importantly, itdoes not mean exclusion is inevitable.6

The existing legal framework of the 1951 Refugee Convention provides for thenecessary legal instruments to address questions related to terrorism whilemaking available international protection to those who need it. UNHCR’sunderstanding of the proposed Section 10(5) (in particular considering the lastpart of the proposed Section 10(5), which states that a residence may beissued if there are specific reasons supporting the granting of a residencepermit) and Section 19(3) is, that the fact alone that a person is subject toUN/EU sanctions i.e. figuring on one or more of the UN/EU sanction lists doesnot provide for a stand-alone ground to exclude a person from or cancel his orher refugee status. However, it may trigger exclusion considerations orcancellation procedures based on exclusion grounds as provided for in Article1 F. If these do not apply, the person may be granted refugee/protectionstatus. This case, we understand, would fall under “specific reasons”supporting the granting of a residence permit as provided for in the last part ofthe proposed Section 10(5).UNHCR therefore recommends to explicitly refer in the proposed Section 10(5)to Section 10(1) and to clarify in the proposed Section 19(3) that if anindividual is on one of more of the UN/EU sanction lists, her or she may besubjected to cancellations procedures based on exclusion grounds as namelyprovided for in Article 1 F as referred to in Section 10(1)(iii) Aliens Act.4. Expulsion and non-refoulementSection 19, paragraph 7, new item of the proposal provides that a person onthe UN/EU sanction lists, once his or her residence permit has been revoked,she or he has to be expelled [Section 26(2)] unless the circumstancesmentioned in Section 26(1) constitute a decisive argument against doing so.According to the 1951 Refugee Convention asylum seekers and refugees mustconform to the laws and regulations of the country of asylum as set out inArticle 2 of the 1951 Convention and if they commit crimes are liable tocriminal prosecution. The 1951 Convention foresees that such refugees can besubject to expulsion proceedings in accordance with Article 32 and, inexceptional cases, to removal under Article 33(2). In that respect, and asalready mentioned earlier, it is important to differentiate between cancellationof refugee status on the basis of exclusion or withdrawal of protection fromnon-refoulementunder Articles 32 and 33(2) of the 1951 Convention. Theformer rectifies a mistaken grant of refugee status, while the latter provisionsgovern the treatment of those properly recognised as refugees.When considering the revocation of the residence permit and expulsion of aperson on the UN/EU sanction list without having the conditions for cancelinghis or her refugee status (see above) being fulfilled, Article 32 and 33 of the1951 Refugee Convention continue to apply. The principle ofnon-refoulement,codified in Article 33(1) of the 1951 Refugee Convention is of centralimportance to the international refugee protection regime. It is a fundamentalobligation of States Parties to the 1951 Convention and/or its 1967 Protocol towhich no reservation is allowed. Article 33(2) allows for an exception to thisobligation in two limited circumstances, one of which is related to refugees whopose “a danger to the security of the country in which [they are],” that is, thecountry of refuge; while the other relates to refugees who, having been7

convicted by a final judgment of a particularly serious crime, constitute adanger to the community of that country. For further background on theapplication of Article 33(2) see UNHCRAdvisory Opinion on the Scope of theNational Security Exception Under Article 33(2).3Additionally, UNHCR wouldlike to lay emphasis on Article 3 of the European Convention of Human Rightsand other international human rights obligations which may be relevant if aperson is to be expelled.Conclusions and recommendationsIn brief, UNHCR would like to recall that to persons, including those who figureon one or more of the UN/EU sanction lists, who were not excluded fromrefugee status or whose refugee status was not cancelled based on exclusiongrounds, Article 32(1) and 33(1) of the 1951 Refugee Convention continue toapply. However, even a person with refugee status, including one on a UN/EUsanction list, can be expelled according to the 1951 Refugee Convention, if heror she poses a danger to the security of the country of refuge or if her or shehas been convicted by a final judgment of a particularly serious crime andconstitutes a danger to the community of the country of asylum (Article 32(2)and 33(2) as reflected in Section 10(1) Aliens Act).5. Data protection and sharingSharing of (personal) information/data of an alien with prosecution authorities:Section 45c of the proposal gives the Danish Immigration Service, the Ministryof Refugee, Immigration and Integration Affairs, the Refugee Appeals Boardand the county government offices (Section 46c) the authority to shareinformation about an alien’s case(s) with the prosecution authorities, to theextent the information may be relevant for the prosecution authority to identifyand/or prosecute persons (paragraph 2) or for the identification of victims orwitnesses to a specific crime (paragraph 3), if the investigation concernscrimes punishable with six years or more, regardless of whether they arecommitted in or outside Denmark.The proposed Section 45c allows authorities involved in the asylum procedureto share information about, among other aliens, an asylum seeker’s or arefugee’s case with prosecution authorities “to the extent the information maybe relevant for the prosecution authorities”. The wording indicates thatinformation should be shared only to the extent necessary. While such aphrasing of the provision can serve as an useful guiding principle for datasharing it remains highly vague on the question what concrete information froman alien’s, namely a refugee’s or asylum seeker’s case, can be shared. Aspecific reference to existing legal data protection standards in Danish law iscritical. From an UNHCR perspective especially important is that safeguardsare in place which ensure that information about an asylum seeker’s case arenot shared, namely in extraditions procedures (for instance if rogatory letterswere sent following an international arrest warrant), with the authorities of thecountry of origin as long as the asylum decision is pending and at no time

when the case concerns a person who is considered to be in need ofinternational protection.6. ConclusionsUNHCR acknowledges the challenges states are faced with when designingcounter-terrorism strategies and measures while respecting and preserving theasylum space and the rights of asylum-seekers and refugees. Non-rejection atthe border, access to the asylum procedure, fair and efficient refugee statusdetermination and the assurance of basic standards of treatment, above allprotection against forcible return to a territory where refugees and asylum-seekers might face persecution (non-refoulement) remain the fourcornerstones of refugee protection. All these are essential features of anasylum system which help to minimize the risk of refoulement. Within thisframework international refugee law - most importantly the 1951 RefugeeConvention and the 1967 Protocol - provides for adequate legal responses tothe challenges linked to terrorism.Based on the reasoning above, UNHCR:•Strongly recommends to describe in the Aliens Act in a more defined andexhaustive manner what is meant by restrictive measures as decided bythe UN and the EU (“restriktive foranstaltninger i form af begrænsningermed hensyn til indrejse og gennemrejse besluttet af De Forenede Nationereller Den Europæiske Union”).Has pointed out that the fact alone that a person is subject to UN/EUrestrictive measures i.e. is figuring on one or more of the UN/EU sanctionlists does not provide for a stand-alone ground to [proposed Section 10(5)]exclude a person from or [proposed Section 19(3)] cancel his or herrefugee status. However, it may trigger exclusion considerations (Article 1F) including cancellation procedures if facts leading possibly to exclusionbecome known after refugee status was granted.Recommends to explicitly refer in the proposed Section 10(5) to Section10(1)(iii).To spell out more clearly in the proposed Section 19(3) that if an individualis on one or more of the UN/EU sanction lists, he or she may be subjectedto cancellations procedures (his or her residence permit granted accordingto Section 7 Aliens Act may be revoked) based on exclusion grounds asprovided for in Article 1 F of the 1951 Refugee Convention as referred to inSection 10(1)(iii) Aliens Act.Recalls that to persons, including those who figure on one or more of theUN/EU sanction lists, who were not excluded from refugee status or whoserefugee status was not cancelled based on exclusion grounds, Article 32(1)and 33(1) of the 1951 Refugee Convention continue to apply.Would like to remind that a person granted refugee status, including one ona UN/EU sanction list, can be, according to the 1951 Refugee Convention,expelled in exceptional circumstances that is if he or she poses a danger to9