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National Assessments
2003 Update of the Danish national assessment[PDF]
Denmark - Country Assessment Report
TABLE OF CONTENTS
- The distribution of responsibilities within Danish asylum procedures
- Definition
1. Entry into the territory
2. Identification
3. Appointment of guardian or adviser
4. Registration and Documentation
5. Age assessment
6. Detention
7. Right to participate
8. Family tracing and contact
9. Family reunification in a European country
SECOND PAGE
10. Interim care – Health – Education and Training
11. Refugee Determination Process
12. Durable Solutions
13. Data Collection
14. International Instruments
The distribution of responsibilities within Danish asylum procedures:
The Danish Immigration Service is a governmental department within the Ministry of the Interior and serves as the primary authority in the treatment of asylum applications. The Immigration Service is also responsible for the applicant until a decision to grant or deny asylum has been made. This responsibility has to a great extent been delegated out to the Danish Red Cross, which together with and at the expense of the Immigration Service, runs the Danish refugee centres and provides accommodation, maintenance, medical attention, education, etc. The Danish Red Cross thus provides daily care for all asylum applicants in this phase, known as the pre-asylum period.
When asylum/residence permits are granted, the responsibility for the refugees is taken over by the local authorities. The Immigration Service refers the refugees to the local authorities, which are then obliged to provide accommodation and financial aid and to facilitate their integration into the Danish society. Until January 1st 1999, this responsibility rested with the Danish Refugee Council for the first 18 months following the issue of the residence permit, but this practice has now been discontinued.
Separated children are defined by the Danish Immigration Service as children and young people under 18 years of age who arrive separated from their parents and other adults that could be considered caregivers, including family members such as siblings or grandparents.
A child not originally defined as a separated child because he/she arrived with parents or other caregivers will also be included in this definition if the parents or the caregiver die during the sojourn in Denmark or the child is abandoned.
A person under the age of 18 who is married or is a parent is not defined as a separated child, inasmuch as this person is now a part of an independent family unit.
It is evident that the definitions of the Immigration Service and that of the Statement of Good Practice differ with regard to separated children accompanied by adults that are not the biological parents. This has had no practical consequences, however, because the status of the child is decided by The Danish Red Cross whose definition is clear: any child who arrives without legal primary caregivers/ biological parents is considered separated. This means that the relations between all accompanied separated children and the adults accompanying them are carefully assessed at the special refugee centre for accompanied separated children. A psychologist with considerable experience with refugee work has been assigned to perform the assessment. The centre handles almost all assessments of accompanied separated children and the adults accompanying them. Only in cases where the child is approaching the age of 18 and has lived with the family in question for a considerable number of years, are exceptions considered. Prior to any decision making, however, the specific cases are discussed with the management of The Danish Red Cross as well as with the Immigration Service.
Until the responsibility for integrating refugees was transferred to the local authorities by January 1st 1999, the Danish Refugee Council adhered to the same definition: All children staying in Denmark without their parents were considered separated by the DRC, including children that had arrived with e.g. their grandparents. The local authorities were thus made aware that these children needed additional attention and support and, as a further consequence, adults accompanying the children were assessed as foster families by the social authorities if the children were under the age of 14. These assessments are, however, often more lenient than those of Danish foster families, given that it is in the best interest of the child to stay with a family that, according to the Danish Red Cross, is capable of providing daily care for the child, although this family might not meet the standards required from Danish foster families with regard to accommodation, education, etc.
After January 1st 1999 , the Immigration Service is now in charge of the visitation of all refugees including separated children. It is still to soon to say whether the previous practice based on a close collaboration between Save the Children, the Danish Red Cross and the Danish Refugee Council will be continued. The DRC expertise in this area has been scattered and presumably in part lost. There is therefore reason to fear that the standard of individual treatment so far given to separated children in terms of placement, support and follow-up may have deteriorated. It is thus advisable for the SCE to pay attention to this question until there is no doubt that the DRC and DRC principles are continued.
The third paragraph of the Danish definition (see a) above) is in keeping with the principle of Danish legislation whereby custody and the obligation to maintain a person under 18 years of age are discontinued when that person marries or becomes a parent. This principle will not be modified with regard to separated children.
1. Entry into the territory (SGP: C1)
a) According to Section 48 of the Aliens Act, an asylum seeker may be rejected at the border if, for instance, that person arrives from a safe third country outside the EU without the necessary passport and/or visa to Denmark. Such Western countries as Switzerland, the USA and Canada are considered safe countries.
The Nordic Passport Control Agreement is still employed with regard to Norway and Iceland, as these countries are outside the EU collaboration and have consequently not signed the Dublin Convention. Refusal to these countries is thus possible according to subsection 1 and 2 of Section 48a.
An asylum seeker may furthermore be rejected if there are indications that the applicant is known in another EU member state.
According to subsection 2, paragraph 2, an alien shall not be expelled to a country in which he will risk persecution on the grounds set out in Article 1A of the Convention relating to the Status of Refugees, 28 July 1951, or in which the alien will not be protected against further expulsion to such a country.
If an asylum seeker is not rejected at the border, all requests for permission to enter the territory to seek asylum are presented to the Immigration Service by the border police by phone.
In the same manner as adults, children may apply for asylum directly at the border, in person at the Sandholm camp (reception camp) or with the police in any Danish police district. The Immigration Service generally grants entry to seek asylum to unaccompanied asylum seekers under the age of 15, including those without passport/visa. 15 to 17 year-olds undergo an individual assessment that considers the child’s affiliation with Denmark and the third country the child may be expelled to.
b) The principles described above are all in accordance with the Statement. As far as we know, there are no statistics for separated children rejected at the border. There is, however, little doubt that the majority of separated children are permitted to seek asylum and that rejection normally only occurs when the child can be sent to a country where it has close relatives or when the child has already obtained a residence permit.
c) Alterations /improvements in the procedure are not advised for children identified upon arrival as separated. Please refer to paragraph 2 on identification.
d) According to subsection 3 of Section 59 of the Aliens Act, a person who deliberately aids and abets an alien to illegally enter or stay in the country is punishable by fines or imprisonment of up to 2 years. Corporations are also liable to punishment according to Section 61. Airline companies have been fined for carrying passengers without legal entry permits. We are not aware of this happening to other transport companies.
Trafficking (SGP: C1.2)
a) Trafficking in foreign children and young people for purposes of prostitution, the production of child pornography and other purposes of exploitation is an area not adequately explored in Denmark..
b) According to Danish social legislation, there is an obligation to report to the social authorities any knowledge of children or young people under 18 years of age being exposed to maltreatment, degrading treatment or living conditions that endanger health or development. This obligation applies especially to official representatives, including the police.
Furthermore, Denmark is involved in different international efforts to combat the trafficking in children.
2. Identification (SGP: C2)
a) According to Section 40 of the Aliens Act, the police has the authority to refuse entry.
In all asylum cases, it is the responsibility of the police to determine the identity and travel route of the applicant as well as the presence of any parents/relatives in Denmark or a third country to allow for rejection or a return to another EU member state. The Aliens Act provides the option to use fingerprinting and photographs as part of the identification process. As a general rule, however, children under the age of 15 are not identified by the use of these means.
b) Although there has been an increase in focus on separated children over the last decade, some are still arriving as children of the families that accompany them. If a child is not defined as separated at the border, it depends on the accompanying adult whether the child is allowed entry to apply for asylum. If the adult is rejected, so is the child; if the adult is granted entry, so is the child.
It is often discovered during the asylum procedure that the accompanying adult is not the child’s parent. This sometimes only occurs after the family has been granted residence permits and is established in Denmark. It is reasonable to assume, therefore, that several children, especially those accompanied by Somali families, are never identified as separated children.
c) Throughout the system, there is thus a risk of non-identification of separated children. Such children then go without the protection to which they are entitled.
The weakest link is the police who may reject these children at the border. They are not equipped with employees especially trained to interview children and children are seldom interviewed if they are presumed to be with their parents. It would be desirable to train the police to be better at spotting these children.
The Danish Red Cross often observes the families over a long period of time and any suspicion that a child is in fact separated is reacted on promptly by the staff. The large number of separated children to have spent time in refugee centres in the last decade has, of course, heightened the staff’s awareness of this problem.
Furthermore, the status of a child will often be revealed by the Immigration Service in the course of the asylum procedure and the Danish Red Cross will subsequently assess the nature of the relationship with the accompanying adults in the usual manner.
Refugee families are sometimes granted residence permits and accommodation before a separated child in that family is identified as such. When this happens, it is unfortunately often as a result of problems with the child, causing the parents to contact social authorities and ask them to take over the responsibility for the child.
There are thus several ways for a separated child to encounter problems if not properly identified. Training of the authorities and organisations involved as well as a heightening of the attention on this problem should therefore be secured continuously.
3. Appointment of guardian or adviser (SGP: C3)
a) According to the Danish Custody Act, it is the responsibility of the legal primary caregiver to
care for the child and reach decisions regarding the child’s welfare based on its best interests and needs. The primary caregivers for minors are non-appointed guardians.
According to Section 14 of the same law, a legal primary caregiver must be appointed for a child if the previous legal primary caregiver is deceased.
According to Section 25 of the same law, a regional authority may, if petitioned to do so by the local caregiving authority, appoint a temporary primary caregiver if the legal primary caregiver is unable to make decisions regarding the child’s welfare. The condition is that this inability is of a temporary, though not necessarily a short-termed, nature.
According to Danish legislation, there is thus no unequivocal obligation to appoint a legal primary caregiver/guardian for a separated child and in practice this happens very rarely.
b) A guardian or an adviser is not automatically appointed.
c) Compare the above.
d) Compare the above.
e) In this area, Denmark does not meet the standards set out in the Statement. While Danish
legislation provides the option of appointing a legal primary caregiver to a separated child, in practice this happens very rarely.
f) This option could be employed as early as the pre-asylum period, however, and Save the Children, the Danish Red Cross and the Danish Refugee Council all agree to the desirability of appointing a person early on to attend to the child’s interests. Appointing an adviser upon the separated child’s arrival would help protect the child’s interests during the asylum procedure and throughout the subsequent integration into the Danish society. These three organisations have for years been drawing the attention of the immigration authorities to the fact that Denmark neither lives up to the principles of Danish social legislation regarding children nor follows the UNHCR guidelines.
It is, however, reasonably certain that the daily care for the child in the pre-asylum period within the Danish Red Cross system is handled in the best manner possible and that decisions regarding the child’s welfare are made in accordance with the child’s best interests. At the refugee centres for children, each child has two contact persons that are responsible for meeting the child’s daily needs and wants. Furthermore, by agreement with the immigration authorities, a practice was implemented in 1991 in which Danish Red Cross staff are present as assessors at the registration and interviewing of separated children. An assessor is only there to ensure that formal guidelines are observed during the registration and interviewing of the child, however, and the assessor thus has no influence on the child’s situation or any daily contact with the child. The assessors do not receive special training. They are usually members of the Danish Red Cross staff.
However, during the asylum determination procedure, nobody is appointed to attend to the child’s interests. Only if the separated child is denied asylum, and the case is presented to the Refugee Appeals Board, is an attorney appointed to the child.
The child is thus not represented by an adult dedicated to promote a decision that would serve the child’s interests during the determination procedure. This is unfortunate as the vast majority of asylum applications from separated children under the age of 15 are treated solely on the basis of the information obtained by the police during the registration. A legal case officer, who in most cases never meets the child, determines whether the child is mature enough to have its application treated as that of an adult and whether it should be granted residence permit pursuant to Section 9.2.2. (humanitarian status) or receive immigrant status according to Section 9.2.4. (exceptional grounds).
The Danish immigration authorities are thus not complying with the UNHCR guidelines. Nor do they provide the staff with childcare expertise or employ persons with the same ethnic background and mother tongue, as proposed by the UNHCR. The primary decisions in the determination procedure are made exclusively by legal case officers in the Immigration Service.
As of January 1st 1999, it is the social authorities which make decisions regarding the welfare of separated children from the time asylum/residence permits are granted till the children turn 18 and consequently reach majority according to Danish legislation. If the children are accommodated in children’s houses or shared houses for refugee children, the staff at these places are presumed to act as the children’s advocates when dealing with the social authorities, the school, the health system, etc. The same is presumed of foster parents regardless of whether the children are placed with Danish families or families with the same ethnic background as the child. But as the children grow older and move into youth accommodation, rented private rooms or halls of residence, this care subsides and the children are left to deal with the social authorities, the school, etc. alone.
There is no reason to doubt the effort being made by most social services departments to make decisions based on the welfare of the child or young person. There is, however, reason to question whether all local authorities possess adequate refugee expertise to be able to properly evaluate the child’s best interest. Furthermore, in cases of conflict of interest between the separated child and the local authorities, one cannot generally assume that the child is provided with the temporary caregiver that the law allows for. Section 32 in Law on Social Services echoes the Custody Act and reads as follows: If a child or a young person has no legal primary caregiver, the local authorities shall participate to the appropriate extent in appointing a suitable legal primary caregiver.
The social services department decides what is to be understood by the phrase "to the appropriate extent". Where Danish children and young people are concerned, a legal primary caregiver is almost always appointed in this situation. Where separated children are concerned, this happens very rarely.
As is evident from the above, Denmark does not meet the standards of the Statement with regard to the appointment of guardians or advisers for separated children. The immigration authorities are planning to extend the assessor policy to incorporate increased authority for the assessor. The Immigration Service furthermore stresses the local authority’s obligation to supervise all separated children from the moment of arrival in the country. A number of problems in the pre-asylum period could be solved by appointing several more assessors than the current 4 and by providing these assessors with the appropriate training.
The local authority’s obligation to supervise separated children is in no way adequate. The social authorities in municipalities with refugee centres for children are not involved until remedial measures are needed and the majority of separated children are not even known by the local authorities until they are granted asylum/residence permits. The appointment of one adult per child, as described above, is thus necessary to ensure the child’s welfare (on a legal, educational and daily care level) until it reaches the age of 18.
The appointment of a national organisation with child expertise and non-involvement in the asylum procedure to attend to this need is one solution. Save the Children would be a possibility. Whether the persons assigned to this task should be employees or volunteers, whether they should be Danes or persons of the same ethnic background as the children and whether they should receive special training are questions that would have to be answered. However, for practical purposes and to induce a sense of security, the same person should be assigned to a child from the moment of arrival until the child is able to fend for itself. At the same time, the organisation appointed to this task should be responsible for the continuous support, training and supervision of the assigned staff.
4. Registration and Documentation (SGP: C4)
a) There is no law in this area.
As mentioned earlier, neither police nor immigration authority staff possess childcare expertise or special child interview training. Separated children are basically interviewed in the same manner as and by the same staff as adult asylum seekers. This flaw in the Danish system and its consequences are described in paragraphs 2 and 3.
However, reports based on conversations with the children regarding their social backgrounds, families, school, the reasons for flight, the flight itself, etc. are compiled at the refugee centres for children in an effort to establish the children’s identities in as much depth as possible. The refugee centres for children have employees for this very task who handle the first interview with the child immediately following its arrival at the centre. However, the children are generally still uncomfortable with figures of authority and often offer the explanation in which they have been instructed by their parents or the agent. Only when the children feel secure with the refugee centre employees do they offer a more correct explanation as to their identities. The Danish Red Cross is not obligated to pass this information on to the immigration authorities.
b) It is evident that neither the police nor the immigration authorities live up to the Statement as opposed to the Danish Red Cross.
c) Please refer to paragraphs C2 and C3 concerning staff training.
5. Age assessment (SGP: C5)
a) The Aliens Act does not include age assessment among the measures available to the police to determine the identity of an asylum seeker. It is however inherent in other legal clauses that police as well as the immigration authorities can petition an age assessment if it is not clear whether a separated child is in fact under the age of 18. The child signs a consent form and is informed that the result may be used in the determination procedure. If the child refuses to sign the consent form, he/she is informed that this may be detrimental to a favourable outcome of the procedure.
In practice, a very low percentage of separated children undergo age assessment, the reason presumably being that it is a fairly costly procedure. Furthermore, it is at best indicative as there is no way to determine a person’s age with 100% certainty. The assessment takes place at Rigshospitalet (the State University Hospital) and at Tandlægehøjskolen (the Dental College), the two leading institutions for medical and dental care respectively.
b) There is no question that the children receive the benefit of the doubt in the majority of cases.
An age assessment is only performed when a person who looks to be in his/her mid-twenties or older claims to be a child. Ever since the establishment of the first refugee centre for children, the Danish Red Cross staff have wondered at the number of asylum applicants clearly over the age of 18 to have been accommodated in refugee centres for children because they claimed to be separated children. The reason is, of course, that residence permits are easier to obtain for children than for adults.
c) For asylum applicants under the age of 18, both legislation and practice conform to the Statement. It is generally presumed that persons claiming to be children are in fact under the age of 18. Furthermore, the age assessment is voluntary and is conducted in an appropriate manner. It is puzzling, however, that the authorities do not employ age assessments to a greater extent. Some deception could be avoided and so could improper placement of the applicant both while awaiting asylum and after residence permits have been granted. The asylum application of an adult should be processed accordingly, among other things so that the adult will not subsequently live in constant fear of exposure.
6. Detention (SGP: C6)
a) Detention may be used under the Aliens Act. If the detention exceeds 3 days, a judge should be consulted to determine whether it can/shall be prolonged.
b) Aliens under the age of 18 may be detained according to the Aliens Act. In practice, this happens only in extraordinary circumstances. The best known example are the deeply criminal young asylum applicants who, after repeated arrests for burglary and theft, are detained in a closed camp at the reception camp, pending their asylum determination. A child awaiting expulsion, sometimes after staying in the country illegally for a prolonged period, is detained in rare cases. The same applies if a young person has been deemed destructive by the refugee centre staff and other occupants due to threatening and violent behaviour.
Any person in Denmark who subjects a child to cruel, inhuman or degrading treatment is punishable with fines or imprisonment. Although it is assumed that separated children hardly ever face such treatment, provisions have been made to prevent this happening. During the asylum procedure, a Danish Red Cross assessor is present at all registrations and interviewings of the child. The assessor ensures that formalities are observed and that the child is well-treated.
c) We must conclude that Denmark adheres to the guidelines, although we would underline the benefits to be gained from appointing a personal guardian or adviser to guide the child through the system.
7. Right to participate (SGP: C7)
a) Pursuant to Article 12 of the Convention on the Rights of the Child, a child who is capable of forming his or her views is assured the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. Paragraph 2 of this article specifies the child’s right to participate in any administrative authority procedure or to be heard by the judiciary powers in matters affecting the child. This right may only be disregarded if an assessment of the child’s maturity and age indicates that the child should not be heard.
b) An asylum seeker under the age of 14 is rarely questioned during the asylum procedure. The police assess the child’s age and maturity at registration and determine whether it is necessary to interview the child. On the basis of this recommendation, the immigration authorities then decide whether the child should be interviewed during the asylum procedure.
According to Danish child legislation, authorities are under the obligation to offer children over the age of 12 a consultation before any measures are taken regarding that child. For children under the age of 12, a statement should be available regarding the child’s views on the envisaged measures. This statement is to be considered in accordance with the child’s age and the nature of the matter at hand.
Whether a child over the age of 12 should be heard is not determined by the authorities, nor can the child’s right to participate be waived by its parents. Regarding children under the age of 12, the child’s views on the envisaged measures should be available and should be consulted in consideration of the child’s age and the nature of the matter at hand. Notes adjoined to these provisions underline the importance of informing children and young people of any measures prior to their implementation.
c) The Danish immigration authorities conform to the standards set out in the Convention on the Rights of the Child, as the children’s age and maturity are considered with reference to interviewing them during the asylum procedure.
It could be questioned, however, whether the dividing line should be the age of 14, automatically granting the right to be heard (during interview) to children over this age, while the majority of children aged of 0-14 are assessed according to objective criteria and not given the right to be heard. Adhering to the principles of Danish child legislation and moving the dividing line to the approximate age of 12 could be advantageous to the children. Consultations with the children could then be moved from the offices of the Immigration Service to more familiar surroundings for the child, the refugee centre, for example.
8. Family tracing and contact (SGP: C8)
a) Danish legislation contains no regulations concerning the obligation of the authorities to attempt tracing the parents of separated children.
In the current procedure for separated children too young to enter the normal asylum procedure, the child’s information as to the whereabouts of its family is not investigated further, as this does not affect the child’s status in Denmark. This is also to a great extent true for the older children and young people who are granted residence permits, too, solely because they are separated. No attempts are made to trace the parents in these cases. The whereabouts of the parents only become a factor in the cases where asylum is denied.
b) The Danish asylum authorities are thus not complying with the standards of the Statement, as no attempts are made to localise the parents. On the contrary, obstacles have been placed to prevent family tracings. The immigration authorities have in some cases revoked residence permits given solely because the children were separated if the whereabouts of the parents became known, for instance if the parents applied for asylum from abroad. There is, however, no doubt that many of the children remain in contact with their parents and the Danish Red Cross encourages this contact with no sense of obligation to inform the authorities. If the whereabouts of the parents are unknown to the children, the Danish Red Cross or the Refugee Council can attempt tracing them if the child so desires. Family tracings are, of course, performed so as not to expose the parents to unnecessary risks.
c) We would recommend that the Danish authorities initiate family tracing at the earliest possible stage after the child’s arrival, since the greatest strain on a separated child is the fear for its family’s plight. If the parents’ whereabouts are known, it is important to ensure the child regular contact (i.e. by phone) with the parents.
9. Family reunification in a European country (SGP: C9)
a) According to Danish immigration legislation, only parents over the age of 60 and children under the age of 18 may in some cases be reunified with resident refugees. One criteria is that the resident refugee is able to support the arriving family members.
Parents of separated children are obviously rarely over 60 years of age, nor are the children able to support them. Parents of separated children are thus hardly ever legally entitled to residence permits in Denmark.
According to the Aliens Act, though, Danish residence permits may be granted if resident close relatives are deemed the most likely to protect the applicant. This rule is, however, not applicable to aliens in other EU-countries.
The prospect for separated children of obtaining family reunification with parents applying for asylum in another European country is thus very poor. The country in which the parents reside will generally be considered the most obvious choice for a reunification of the whole family including children residing in Denmark..
b) If the parents of a separated child residing in Denmark themselves reside in a European country, Danish legislation conforms to the Statement. There is thus no need for alterations to accommodate this group. If, however, the parents apply for asylum from their country of origin or a non-European country, it is debatable whether Denmark meets the standards. It has been debated whether the rather strict Danish policy on family reunification conflict with the Convention on the Rights of the Child. The immigration authorities are of the opinion that this is not the case. Their justification for not mitigating the rules is the fear that an increased number of separated children would be sent here as forerunners of entire families.
c) It would be desirable, though, if the decision to deny or grant residence to parents of resident separated children was made on the basis of all circumstances. If the child is unable to join its parents, it should be determined if the Danish immigration authorities, with reference to Section 8 of the UN Declaration on Human Rights, should grant family reunification in Denmark in some cases.