12 July 2021

The Limits of Indirect Deterrence of Asylum Seekers

On 9 July 2021, the Grand Chamber of the European Court of Human Rights (ECtHR) handed down its decision in M.A. v. Denmark (Application no. 6697/18), a case testing the limits of one aspect of Denmark’s asylum and immigration policy. The case concerns a Syrian refugee who requested asylum in Denmark in April 2015, and who was granted “temporary protection status” – a legal status introduced that same year. Refugees afforded temporary protection status in accordance with section 7(3) of the Danish Aliens Act are afforded a more limited rights package than refugees granted Refugee Convention status or the Danish equivalent to subsidiary protection (termed “protection status”). The new status is one of several initiatives introduced to make Denmark a less attractive target country for asylum seekers. Most significantly, applications for family reunification can only be submitted after a three-year waiting period.

Following a careful and nuanced deliberation, a near unanimous Grand Chamber (Judge Mourou-Vikström as the sole dissenter) concluded that this three-year period did not strike “a fair balance between, on the one hand, the applicant’s interest in being reunited with his wife in Denmark and, on the other, the interest of the community as a whole to control immigration” (para. 194).

The judgment is significant for several reasons. Firstly, because it adds to an already growing international criticism of Denmark’s asylum and immigration policy. Secondly, because the judgment helps clarify the Court’s position on an issue, family reunification for refugees, where case law has hitherto been somewhat ambiguous, and where several European States have introduced new restrictions since 2015. Third, and finally, the judgment represents – to paraphrase Harold Koh – another “way station … in the complex enforcement” of migrant and refugee rights by international human rights institutions.

The Backdrop: Denmark and the protection of refugees fleeing general violence

Once considered a liberal front-runner in regard to refugee and migrant rights, the last two decades have seen Denmark champion a broad range of more restrictive measures – from the much-discussed “jewellery law”, to cessation of refugee status for Syrian refugees, and the most recent plans for offshore asylum processing. Politically, Denmark’s overall approach can be described as “indirect deterrence” – restricting rights for asylum-seekers and refugees in order to discourage refugees from seeking asylum in Denmark, thereby diverting them to other countries.

A key ambition in this regard has further been to align Danish rules on asylum and family reunification with a minimalist understanding of Denmark’s international obligations in respect to both the 1951 Convention Relating to the Status of Refugees and general human rights law. In 2002, for example, Denmark abandoned its previously more generous concept of “de facto refugees” in favour of a subsidiary protection status that, in its formulation, directly mirrored Denmark’s obligations under Article 3 of the European Convention on Human Rights. A key effect of this change was that persons fleeing generalised violence were no longer entitled to asylum under Danish law.

Just two years later, however, the budding harmonisation of EU asylum law introduced a concept of subsidiary protection covering, among other things, a “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict” (Art. 15(c) of the Qualification Directive). A notion that the Court of Justice of the European Union (CJEU) later confirmed created an obligation beyond the category of people protected by Art. 3 of the European Convention of Human Rights. That in itself needed not concern Denmark, which, with the Edinburgh agreement, maintains a legal opt-out to, among other things, the EU asylum directives. In 2011, however, the ECtHR handed down its decision in Sufi and Elmi, applying a similar interpretation, thereby establishing that the European Convention of Human Rights offers a “comparable protection” to that of European asylum law.

This forced Danish asylum authorities to alter their approach and to reopen a number of already rejected cases. The Danish government’s response to the developing human rights jurisprudence came in 2015 when the above-mentioned temporary protection status was introduced as a tertiary asylum category, specifically aimed at persons owed protection as a result of indiscriminate violence – at the time predominantly Syrian refugees. In addition to the three-year waiting period before initiating applications for family reunification, residence permits based on temporary protection status are shorter in duration and issued for only one year at a time (after three years, for a maximum of two years). This group is moreover particularly exposed to Denmark’s strict cessation measures – enabling residence permits to be withdrawn as soon as safety conditions have improved in the applicant’s region of origin.

Judicial diplomacy and the politics of international judicialisation

Strasburg’s recent ruling may be seen as another way station in Denmark’s uneasy relationship with international human rights institutions in the context of asylum and migration. It is the second time in recent years that the Grand Chamber finds Danish migration measures to be in violation of the Convention. In the 2016 Biao judgment, the Court held that a central element of Danish family reunification rules – waiving certain requirements for applicants who have been Danish nationals or legal residents for more than 28 years – constituted indirect discrimination on the basis of ethnic origin. In the same vein, the CJEU, in a preliminary ruling requested by the Danish Eastern High Court, concluded that the 1963 EU-Turkey Association Agreement exempted economically active Turkish citizens from restrictive measures introduced after the standstill clause implemented in 1980. Additionally, various UN human rights bodies have received a growing number of individual petitions concerning Danish asylum and expulsion cases.

Beyond this, M.A. v. Denmark may also be seen as an exercise in judicial diplomacy. The judgment serves as a signal from Strasburg to Copenhagen that the Danish strategy of consistently adopting a minimalist reading of its international human rights obligations is not without limits. When the adopted convention text says in art. 8 that “Everyone has the right to respect for his private and family life”, the Court must see to it that this right for everyone is not hollowed out by domestic policies. The judgment highlights the Court’s readiness to stand up against such domestic politics when interpreting the convention. This is all the more noticeable because when Denmark took over the Presidency of the Council of Europe in 2017, it was with a clear agenda to push the Court in the opposite direction. Following negotiations with the member states, the Danish government went ahead and published a draft Copenhagen Declaration, calling on the ECtHR to apply a wider margin of appreciation, and in particular singling out asylum and immigration as an area of judicial restraint. The text sparked controversy across Europe and was subsequently moderated into a more diplomatically acceptable compromise – containing no specific references to the Court’s approach in migration cases.

Nonetheless, although the Danish government had failed in terms of its set objective to separate migration policy from human rights, several commentators felt that the Court nonetheless had listened, and that a more restrictive trend was observable in the Court’s rulings on migration issues. Ilias and Ahmed v. Hungary weakened Article 5 protection in regard to migrant detention. N.D. and N.T. v. Spain limited the prohibition against collective expulsion. Last year, MN and Others settled the question of extraterritorial jurisdiction for refugee visa applicants in the negative. A trio of Grand Chamber judgments, which all point to a new and more cautious direction of the Court in regard to migration-related rights under the ECHR. More generally, research has shown that the Court has increased its use of the doctrine of margin of appreciation in cases involving art. 8.

M.A. v. Denmark represents a significant departure from this trajectory, and for that reason alone the judgment might merit closer inspection by those interested in the Court’s stance on refugee and migration issues. It is a cautious and well-reasoned departure, however. The Court carefully  and extensively engages with the Danish government’s arguments and fully acknowledges the “drastic increase in the number of asylum seekers” (para. 173) around 2015, and Denmark’s resulting interest “in controlling immigration as a means of serving the general interests of the economic wellbeing of the country, and of ensuring the effective integration of those granted protection with a view to preserving social cohesion” (para. 165; at the same time, however, noting that “family reunification may also favour preserving social cohesion and facilitate integration”). Perhaps most surprising, the Court takes no issue with Denmark’s introduction of a tertiary protection status, and the resulting differentiation of rights bestowed to refugees protected by the convention  (para. 177).

The Court finally openly admits that the Danish government – and by implication also the Danish Supreme Court, which ruled on the matter in November 2017 – “did not have the benefit of any clear guidance being given in the existing case-law on whether, and to what extent, the imposition of such a statutory waiting period would be compatible with Article 8 of the Convention” (para. 178). 

Still, the Court bemoaned that the Danish government did not engage in a concrete assessment of whether the three-year period was compatible with art. 8. The Court sets the scene by recalling that “domestic courts must put forward specific reasons in the light of the circumstances of the case, not least to enable the Court to carry out the European supervision entrusted to it. Where the reasoning of domestic decisions is insufficient, with any real balancing of the interests in issue being absent, this would be contrary to the requirements of Article 8 of the Convention” (para. 149). And preparing the conclusion, the Court subsequently observes that: “As amended, the 2016 Act did not allow for an individualised assessment of the interest of family unity in the light of the concrete situation of the persons concerned beyond the very limited exceptions falling under section 9c(1) of the Act … Nor did it provide for a review of the situation in the country of origin with a view to determine the actual prospect of return or obstacles thereto” (para. 192). By relying on a general rule and not engaging in a concrete assessment, the Danish authorities had abandoned their responsibility under the convention, and the Court had to engage in that concrete assessment. As such the result seemed inevitable, namely that three years constitutes too long a time “to be separated from one’s family, when the family member left behind remains in a country characterised by arbitrary violent attacks and ill-treatment of civilians” (para. 179).

Was this outcome predictable? To some extent. Danish politicians knew they were testing the boundaries of human rights when they enacted the three-year rule. The question whether new restrictions are in violation of Denmark’s international obligations has been raised repeatedly in public debates on asylum and immigration, leading some political parties to take a very critical stance against international courts and international conventions, portraying these institutions as obstacles to the exercise of national democracy and sovereignty. This has culminated in a view, endorsed by recent Danish governments, that Denmark should deliberately seek to test the limits of human rights protection. This is key part of the explanation of Denmark’s gradual U-turn from its position as a liberal frontrunner on asylum and immigration law in the 1970s and 1980s, to testing the boundaries and openly criticising European human rights law in this area.

Implications for refugees in Denmark and beyond

Is M.A a turning point then? The immediate reach of the decision is limited. The judgment does not directly conclude that a three-year waiting period ipso facto violates art. 8; only that in the present case it constitutes a violation. The Court engaged in a thorough assessment of the individual circumstances surrounding M.A’s request for reunification with his wife (para 181ff) and the judgment must be seen primarily as insisting that Denmark (and other member states) take their responsibility to concretely apply the convention seriously and refrain from enacting rigid rules, which in individual cases can lead to unbalanced results that violate the convention. In that sense the judgment reiterates the classic and longstanding principle of “fair balance” in the Court’s jurisprudence.

Last, but not least, what does the judgment mean for current and prospective refugees arriving in Denmark? In terms of the current caseload of Syrian refugees granted temporary protection, most arrived more than three years ago and thus already have access to apply for family reunification; and several within this group are currently facing cessation procedures. In terms of prospective cases, it is as of yet uncertain if the judgment will lead to amendments of the Danish Aliens Act or a change in administrative practice. In case of the former, the Court itself provides a pointer, noting that it “sees no reason to question the rationale of a waiting period of two years as that underlying Article 8 of the EU Family Reunification Directive” (para. 162). As such, the ECtHR once again aligns itself with EU law and provides a rather strong signal that Denmark should do the same regardless of its opt-outs.

It is, however, also a possible that Denmark will take the opportunity to more generally revisit the rights associated with “temporary protection status” in a manner that may entail new and different restrictions for the same group in order to maintain the described deterrence logic. This was Denmark’s approach in response to the Biao judgment, and this form of strategic post-judgment positioning is similarly “part of the game” when it comes to the politics of international judicialisation.