Departing from Hostile Refugee Landscapes

In December 2022, the Swedish Migration Agency estimated that the Taliban’s conquest of Afghanistan has made the lives of Afghan women and girls so difficult that it counts as persecution based on gender. Against this background, the Migration Agency announced that all women and girls from Afghanistan are eligible to refugee status and a three-year residence permit in Sweden. On 30 January 2023, the Danish Refugee Appeals Board issued a similar announcement, in which the Board stated that women and girls from Afghanistan, as a starting point, must be granted refugee status solely based on their gender. The Refugee Appeals Board’s decision follows the European Union Asylum Agency’s (EUAA) conclusion, which was published on 25 January 2023.

The newly adopted policies were quickly internationally recognized and praised. They have even been highlighted as “a model for other refugee-receiving countries to follow suit”. However, the policies are also noteworthy for other reasons. Firstly, they represent a major departure from the wide range of restrictive amendments that Denmark and Sweden, over the past decades, have introduced to their asylum laws with the aim of becoming less attractive target countries for asylum seekers. Secondly, while the Refugee Appeals Board announced that asylum cases involving Afghan women and girls still must be dealt with on an individual basis, albeit with a relaxed evidence assessment, the Migration Agency publicized that “Afghan women should be assessed as refugees and granted a residence permit, regardless of other circumstances”. In contrast to the Refugee Appeals Board, the Migration Agency has thereby decided to circumvent the requirement for an individual assessment in asylum cases involving Afghan women and girls.

From liberal frontrunners to champions of restrictive policies

Traditionally, Denmark and Sweden were seen as liberal and humanitarian frontrunners in regard to refugee rights and free movement law. The countries drew international attention as they were among the first to sign and ratify the 1951 Convention Relating to the Status of Refugees (Refugee Convention). At the national level, the Danish and Swedish alien laws have played a significant role in framing the wider discipline of international refugee law. For example, the Danish and Swedish judiciaries have been progressive by offering forms of complementary or humanitarian protection before these statuses had surfaced the international stage. Similarly, the 1952 Nordic Passport Union pioneered rules on free movement and residence for persons, as a corresponding internal market first emerged under the auspices of EU in 1992.

However, the last decades have also seen examples of Denmark and Sweden pursuing a manifestly different approach to international refugee law. A common denominator for the countries is that they have created more hostile and antagonistic refugee landscapes by launching a wide range of restrictive amendments to their asylum laws, such as temporary protection, cessation and revocation clauses, third country partnerships, restrictions on family reunification, such as economic thresholds, and border closures. Recent events, such as the 2015 refugee crisis and the Covid-19 pandemic, have further greatly impacted rules on free movement.

However, the changing trajectories of the Danish and Swedish asylum practices and hence relationships to international refugee law have not gone unremarked. There has been an extensive number of human rights complaints brought by rejected refugee claimants and migrants against the individual countries. In fact, Denmark and Sweden are among the countries that have had most non-refoulement claims decided by international human rights treaty bodies. Denmark and Sweden have also found themselves in various media headlines, with several of their introduced restrictive initiatives being criticized for reflecting a key ambition to align national rules with a minimalist understanding of their international obligations.

Among other things, Denmark and Sweden have previously received a wide range of criticism for having implemented strict policy measures that particularly affected Afghan nationals. In 2010, for example, the Danish government increased its emphasis on temporary protection of unaccompanied minors in response to an enlarged number of arrivals of Afghan minors. In the Swedish context, there has been a long-standing tradition of granting unaccompanied Afghan minors permanent residence permits. When the refugee crisis flared up in 2015, however, Sweden introduced the 2016 Temporary Law, which completely transitioned the Swedish asylum system from a system where permanent residence permits were the main rule for refugees to a system based on temporary permits. After the Temporary Law entered into force, the rejection rates for unaccompanied minors from Afghanistan nearly tripled. Although the principle of ‘the child’s best interest’ traditionally has had a high cognitive and normative value in the Danish and Swedish judiciaries, it thus ended up being overshadowed by restrictive refugee-regulatory considerations.

The newly introduced policies concerning Afghan women and girls are remarkable in that they represent a significant departure from the restrictive trajectories that have prevailed in Denmark and Sweden in recent decades. In light of Denmark’s rather intricate relationship with EU law, it is particularly noteworthy that the Refugee Appeals Board rapidly decided to follow the EUAA conclusion. Denmark’s relationship to EU law encompasses an opt-out on justice and home affairs, which includes asylum and refugees, parallel agreements and a protocol that similarly enable participation in the Dublin and Schengen Systems, as well as decades of deliberate attempts to test the boundaries of international and European human rights and refugee instruments. As EU law does not legally oblige States to implement soft law instruments, Denmark’s decision to follow the EUAA conclusion thus also represents a significant departure from several years of distance to EU law. In contrast to Denmark, Sweden has generally been more positive towards EU law. Sweden has taking an active part in developing the Common European Asylum System (CEAS), and it has actively campaigned for national implementation of the directives and regulations that compose CEAS. Yet, in its newly introduced policy concerning Afghan women and girls, Sweden has decided to circumvent the requirement for an individual assessment, which is a key concept in EU law. Can this be reconciled with EU law?

Generalized assessments in refugee decision-making

In their newly published announcements, the Danish Refugee Appeals Board and the Swedish Migration Agency similarly refer to the situation of chaos and discrimination prevailing in Afghanistan as a result of Taliban’s implementation and enforcement of Sharia. Both countries further emphasize the restrictions that have been imposed on Afghan women and girls in terms of access to seek protection from violence, healthcare and work, freedom of movement and expression, as well as right to education. Based on the arbitrariness and uncertainty with which Taliban’s de facto exercise of authority takes places, the Refugee Appeals Board decided to lower the evidentiary threshold for when Afghan women and girls must be considered to have established a probable risk of persecution. On the contrary, the Migration Agency concluded that the requirement for an individual assessment should be abolished in all asylum cases involving Afghan women and girls.

The Migration Agency’s decision to circumvent the requirement for an individual assessment is supported by a national country of origin report that depicts the unequivocally harsh living conditions for Afghan women and girls. Simultaneously, the report estimates that the Taliban movement has such decisive influence on Afghanistan’s development that the situation will not change anytime soon. While the Migration Agency has assessed that these circumstances legitimize the abolition of the requirement for an individual assessment in all asylum cases involving Afghan women and girls, the European Court on Human Rights (ECtHR) has previously bemoaned that Member States have refrained from engaging themselves in concrete assessments. For example, in M.A. v. Denmark the ECtHR ruled that Denmark had neglected its responsibility under the European Convention on Human Rights (ECHR) by relying on a general rule and failing to conduct an individualized assessment. In Hoti v. Croatia, the ECtHR similarly found that the Croatian authorities had violated the ECHR by refusing to extend the complainant’s residence permit without first assessing his private life situation and the circumstances of his situation in Croatia.

Thus, M.A. v. Denmark and Hoti v. Croatia may be seen as solicitations to Member States to leave room for individual assessments and refrain from adopting inelastic rules. The common denominator of these judgments is, however, that they concerned cases where the individual complainants were deprived of certain rights and freedoms under the ECHR. In contrast, the Swedish Migration Agency’s decision to abolish the requirement for an individual assessment in asylum cases involving Afghan women and girls serves the opposite purpose, namely the granting of human rights and freedoms. It is hard to imagine that ECtHR will complain about this.

However, it should also be noted that Sweden’s right-wing conservative government coalition, a few weeks after the policy concerning Afghan women and girls was introduced, announced that it is working on an awareness campaign to discourage migrants and asylum seekers from coming to Sweden. Against this background, it may seem likely that the decision to abolish the requirement for an individual assessment in asylum cases involving Afghan women and girls has come at the expense of other refugee claimants. It is difficult to imagine that ECtHR will accept that a Member State prioritizes one group of refugee claimants over another, solely on the grounds of gender and nationality.

Back to being liberal and humanitarian frontrunners?

Although the newly introduced policies concerning Afghan women and girls have been recognized and praised on the international scene, it is questionable whether they are a turning point for the restrictiveness that, over the past years, has characterized the asylum policies in Denmark and Sweden, respectively.

Considering the extensive number of human rights complaints brought by rejected refugee claimants and migrants, as well as the numerous critical media headlines, however, it is clear that Denmark and Sweden has a lot of work ahead if they aim to detach themselves from their restrictive reputations and regain their titles as liberal and humanitarian frontrunners. For now, the Danish and Swedish asylum authorities must start by reopening a number of already rejected cases involving Afghan women and girls.