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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. 

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For members


OPINION: The far right now dominates the immigration debate in Sweden

A televised debate between the party leaders last weekend showed how Sweden’s third party, the far-right Sweden Democrats, has shaped Swedish politics since the last elections four years ago, argues David Crouch

OPINION: The far right now dominates the immigration debate in Sweden

In the build-up to the 2018 elections, the world’s media descended on Stockholm, expecting a breakthrough by the Sweden Democrats (SD) who had been polling as high as 25 percent. In the end, SD took third place with around 18 percent of the vote.

Four years later, SD are hovering at around the same level in the polls. However, Swedish politics has been utterly transformed, as the other main parties have moved onto political terrain previously occupied by SD.

This would have been unthinkable just a few short years ago. When they first entered parliament, SD were treated as political pariahs, a racist party, held at arm’s length by the other parties who refused to cooperate with them in any way.

Attempts to bring the SD into the mainstream of Swedish politics fell flat. The leader of the centre-right Moderates lost her job after suggesting it was “time to stop demonising” the SD. Her replacement, Ulf Kristersson, said he would neither negotiate nor govern with them. After the elections, two smaller centre-right parties – the Centre and the Liberals – agreed to prop up the coalition of Social Democrats and Greens to prevent the SD gaining any influence in parliament.

It was clear, however, that the only chance for the centre-right to govern would be with SD support. After all, in Finland and Norway right-wing populist parties had entered government with the centre right. And in Denmark, the centre-right had governed with populist support. If it worked there, why not in Sweden?

In early 2019, the SD leader Jimmie Åkesson famously had meatballs for lunch with Ebba Busch, the leader of the tiny Christian Democrats, who acted as a bridge-builder. A few months later, Kristersson met the SD leader for the first time in his Stockholm office. By early 2021 the cordon sanitaire dividing the parties had been truly dismantled, and in the autumn the three parties presented a joint budget.

Meanwhile, the Moderates stepped up their rhetoric against immigration and crime. But perhaps the influence has worked both ways? Maybe the far-right have toned down their policies, compromising with the centre so the parties can work together?

On the contrary, Åkesson and other leading SD figures have stoked up the fire and brimstone in their anti-immigrant message. For the SD, the problem is dark-skinned immigrants from Muslim countries whose values conflict with Sweden’s and who should therefore be deported.

The response among the Moderates – and also the governing Social Democrats – has been a deafening silence.

After the Easter riots in six Swedish cities, the Social Democrat government proposed a package of coercive measures to help the police and social services crackdown on criminals.

A televised debate between the party leaders last weekend brought this out very clearly. More than that, it showed how the Sweden Democrats have shaped Swedish politics since the country last voted four years ago.

In the debate on Sunday, prime minister Magdalena Andersson talked about being tough on crime and boasted that Sweden now has one of the strictest immigration regimes in Europe.

It was left to the Green Party (polling 4 percent) and the Centre Party (6 percent) to challenge the SD on immigration. They pointed out that the violent minority is tiny, and that tens of thousands of recent immigrants hold down jobs, obey the law and contribute to Swedish society.

Centre Party leader Annie Lööf listed some of the SD’s more extreme proposals, including demolition of high-immigration neighbourhoods, dawn raids on refugees, and collective punishment for crimes committed by a single family member. This was “pure racism”, Lööf said – where were the “red lines”, beyond which the centre-right would turn against the SD?

All the parties agree that segregation along ethnic lines has gone too far in Sweden, that integration efforts have failed and that something must be done. But there is a paucity of bold ideas that could really make a difference.

Immigration will once more be a battleground at the elections in September, with key politicians competing to be the toughest in dealing with unruly “foreigners”. Meanwhile, the underlying problems that have fuelled disaffection among people with immigrant backgrounds are unlikely to be addressed.

A few weeks ago, Swedish journalist Janne Josefsson spoke to Ahmed, one of the stone-throwing youngsters who shocked the country at Easter.

“We are second class citizens. You let us in, but then Sweden doesn’t care about us,” Ahmed told him. “We are trapped here. I have studied, but will never get a good job. At least once a week we are stopped by the police. In the end, you feel hunted, like a quarry. Do you understand?”

It seems that Swedish politicians don’t really want to.

David Crouch is the author of Almost Perfekt: How Sweden Works and What Can We Learn From It. He is a freelance journalist and a lecturer in journalism at Gothenburg University.


Listen to a discussion on Sweden and immigration on Sweden in Focus, The Local’s podcast. 

Click HERE to listen to Sweden in Focus on Apple Podcasts, Spotify or Google Podcasts.