Denmark - Refugee Appeals Board’s decision of 17 April 2018
Keywords:
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First country of asylum
Description
"A country can be considered to be a first country of asylum for a particular applicant for asylum if: (a) he/she has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection; or (b) he/she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement; provided that he/she will be re-admitted to that country." Member States may consider an application for asylum as inadmissible if a country which is not a Member State is considered as a first country of asylum for the applicant. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
The complainant, an Eritrean citizen and a single woman with a one-and-a-half-year-old child, filed a complaint against the decision of the Danish Immigration Service to reject her application in accordance with the Danish Aliens Act art. 29 (b) as the Greek authorities had granted her refugee status in Greece, valid until 25 November 2017. The complainant referred to the UNHCR EXCOM-conclusion no. 58/1989.
The Board did not find that the general social and economic conditions for refugees with a residence permit in Greece – although difficult – in itself could lead to the complainant not being referred to Greece as first asylum country. The Board did not find that the complainant as a single mother with a one-and-a-half-year-old child was to be considered quite particularly vulnerable. Consequently, the Refugee Appeals Board found the conditions for using Greece as first country of asylum fulfilled. The case was, however, remitted to the Immigration Service by the Appeals Board in May 2018 upon the Service's confirmation that they would consider the application in light of the applicant's residence permit having expired in Greece.
Facts:
The complainant, born in 1986, is an Eritrean citizen. She entered Denmark in April 2016 and applied for refugee status.
In October 2016 she gave birth to a daughter.
On 12 December 2016 the Danish Immigration Service rejected the complainant’s application in accordance with the Danish Aliens Act art. 29 (b) as the Greek authorities had informed the Danish authorities that on 18 November 2014 the applicant was granted refugee status in Greece valid until 25 November 2017.
On 12 December 2016 the complainant filed a complaint claiming that her application for asylum was to be considered in Denmark as Greece did not fulfil the conditions to be considered as the complainant’s first country of asylum cf. the Danish Aliens Act art. 7 (4) and consequently, the conditions to reject the application according to the Danish Aliens Act art. 29 b were not fulfilled. In support hereof, she referred to the UNHCR EXCOM-conclusion no. 58/1989. The complainant stated that she was a single mother with a one-and-a-half-year-old child with earlier experience (3 years) of the lack of assistance from the Greek authorities regarding housing, work and acquisition of the Greek language. Consequently, she was in a particularly vulnerable situation.
Decision & reasoning:
The Refugee Appeals Board accepted that the complainant was granted refugee status in Greece and this thus protected her against refoulement. The Board noted that Greece, as a member of the EU, must apply the European Union Charter of Fundamental Rights art. 19 (2) and has ratified the Refugee Convention including compliance with the non-refoulement-principle as stated in the Convention art. 33 (1). The protection concept includes a certain social and economic element. In this regard the Board refers to the Convention chapter II-V as well as the UNHCR EXCOM Conclusion no. 58 according to which it is a condition - to be able to send back asylum seekers or refugees to a country where they have been granted protection – that they are “treated in accordance with recognised basic human standards”.
The Board did not find that the general social and economic conditions for refugees with a residence permit in Greece – although difficult – in itself could lead to the complainant not being referred to Greece as a first asylum country. The Board did not find that the complainant, as a single mother with a one-and-a-half-year-old child, was to be considered quite particularly vulnerable. Consequently, the Refugee Appeals Board found the conditions for applying the first country concept to Greece as fulfilled. Therefore, the Board did not find any reason to reverse the decision of the Danish Immigration Service, cf. the Danish Aliens Act art. 48 a (1) (1) cf. art. 29 (b).
Outcome:
The complaint was not accepted. The Refugee Appeals Board accepted Greece as the first country of asylum for the applicant and upheld the decision of the Danish Immigration Service.
Subsequent proceedings:
The case was resumed by the Board on 3 May 2018. The Board remitted the case to the Danish Immigration Service as the Immigration Service on 26 April had, by phone, informed the Board that it was the firm practice of the Immigration Service not to reject to consider an application for refugee status in Denmark in cases where the residence permit in Greece had expired (which had in this case on the 25 November 2017).
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Denmark - The Danish Aliens Act Art. 7 (4) |
| Denmark - The Danish Aliens Act art. 29 (b) |
| Denmark - The Danish Aliens Act art. 48 a (1) (1) cf. art. 29 (b) |
Other sources:
UNHCR EXCOM-conclusion no. 58/1989