Michael de Laine

By Michael de Laine, Copenhagen, 15 October 2008

The Danish Refugee Appeals Board may have to explain its actions to the European Court of Human Rights (ECHR) after the Board twice tried to deport a Tamil family to Sri Lanka and ignored warnings from the Court and the United Nations.

According to ‘Artikel 1a’, a newsletter published by the Danish Refugee Council, the family risks torture and physical abuse if they return to Sri Lanka. The father has already been jailed twice and tortured in Sri Lanka.

The family, currently living as rejected asylum-seekers in a Danish refugee camp in Jutland, lived a quiet and unobtrusive life in Sri Lanka, running a small business, until members of a paramilitary group called Karuna started to threaten them.

Reported by Human Rights Watch (HRW) as having close links with the Sri Lankan government in its fight against the Tamil Tigers, Karuna wanted to know where one of the family’s members was hiding. The paramilitary claimed the family member had been involved in activities directed against Karuna, which HRW says is implicated in killings, abductions and other crimes against humanity.

The family fled Sri Lanka in 2005 and ended in Denmark, where the Danish Immigration Service, an arm of the Ministry of Refugee, Immigration and Integration Affairs, rejected their application for asylum. The Danish Refugee Appeals Board upheld the rejection when the family appealed the decision.

Deportation was the next step. On 31 October 2007 the family was accompanied by four police officers to Copenhagen’s airport and put on board a flight to Frankfurt. During their stopover at Frankfurt, the family and the policemen learnt that the deportation order had been cancelled and they returned to Denmark.

The cancellation came after the United Nations High Commissioner for Refugees (UNHCR) warned the Danish government that the escalating conflict between the Sri Lankan authorities and the Tamil Tigers meant that Tamils from northern and eastern Sri Lanka risked persecution if they returned to their home country.

UNHCR added that the ECHR in Strasbourg had stopped deportations of Tamils from Britain because there was great danger that they would be persecuted in Sri Lanka, which meant that deportation would contravene the European Convention on Human Rights. The ECHR had also called on Britain in strong terms to respect its recommendations to stop deporting Tamils to Sri Lanka.

On the basis of this information, the Refugee Appeals Board stopped the deportation the Tamil family, only to retry to deport the family again eight months later.

However, this effort was stopped when the ECHR issued a ‘Rule 39’ order following a request for help by the Danish Refugee Council. A ‘Rule 39’ is a temporary order used in acute situations to stop deportations to countries where the deportees risk persecution - in other words, if a country is about to breach the European Convention on Human Rights. A judgement is made once ECHR has processed a case.

Several ‘Rule 39’ orders have stopped the deportation 342 Tamils from Europe since October 2007; in one of the subsequent cases, the ECHR ruled against Britain in July 2008, after which the deportation of Tamils ceased.

This judgement is regarded as a precedent or ‘lead judgement’, which means it is probable that the court will follow the same approach in other cases about deportation of Tamils to Sri Lanka.

According to Kim U Kjær, senior researcher at the Danish Institute for Human Rights, “The Refugee Appeals Board has steered directly towards a clear breach of the convention with its eyes wide open. The Board has not taken a correct step at any time in this matter.”

Judgements by the ECHR must be followed by the Refugee Appeals Board - assuming it acts according to the Danish aliens legislation, which states that Danish practice must follow the practice of the European Court of Human Rights.

The ECHR ruling against Britain was expected when the Refugee Appeals Board decided in early July 2008 to re-open the case of the Tamil family whose deportation was stopped while they were at Frankfurt airport. When the Danish Refugee Council told the Board of the ‘lead judgement’ in the case against Britain, the Board refused to look into it in connection with the case. The Board also chose to ignore a new call from UNHCR in July 2008 not to deport Tamils to Sri Lanka.

“Our decisions are based on many different sources of information, including information from UNHCR,” said Bent Ove Jespersen, who chairs the Refugee Appeals Board. “Our assessments are a compilation. The UNHCR’s general recommendations form an important part of the Board’s decision basis, but they are not legally binding on the Board. If the European Court of Human Rights requests that the deportation of a rejected asylum-seeker is stopped, then the board will always follow such a request.”

Kjær said he believes that neither the information from UNHCR nor the correspondence with the ECHR can be misunderstood. He added that the Board has not simply made a wrong decision in sending the family back to Sri Lanka; it should have given them asylum.

“The only natural consequence of the ECHR ruling is to give the family asylum in accordance with paragraph 7 of the aliens act,” Kjær said. “We’re talking about people who can’t be sent home because they risk being persecuted the moment they land in Sri Lanka. Aliens who in the eyes of the ECHR must not be sent back to their home country have a proper legal claim to asylum in Denmark under the aliens laws.”

At the same time, Danish attempts to have the European Union’s rules governing residence – which Denmark claims undermines national immigration policies – are not receiving the support of its Nordic partners. Neither Sweden nor Finland wants the rules changed. This will make Denmark’s efforts to circumvent recent rulings of the Court of Justice of the European Communities difficult, if not impossible, especially after the French EU presidency and the European Commission have indicated that they do not expect further debate about the subject this year.

“Our government has not asked for any changes to the rules, it’s nothing we’ll push for,” said Thomas Bergman, a special adviser to Astrid Thors, Finland’s Minister of Migration and European Affairs, to the Politiken daily newspaper.

“We see no need to change the directive – indeed, trying to change would be running a risk,” said Tobias Billström, Sweden’s Minister for Migration and Asylum Policy. “If we start changing the directive then nobody knows how it will end. It’s probable that the European Parliament will actually make the rules more liberal.”

The EU directive governs the rights of EU citizens who travel between the various member states and during their stay outside their home country marry a person from a country outside the EU and the European Economic Area (EEA). As interpreted by the Court of Justice of the European Communities, the rules mean that the Danish authorities can no longer demand that a Dane and his/her foreign spouse who have married and live in Sweden have a residence permit and a job before entering Denmark permanently. According to the Court of Justice, the EU’s rules take precedence over the stringent Danish immigration policies. Denmark’s Immigration Service must follow the EU court’s judgements.

The Danish Liberal-Conservative government and its right-wing supporter, the Danish People’s Party, claim that the ruling undermines the Danish immigration policies, so the parties are trying to have the directive changed.

Sweden’s Billström has also introduced come changes to the country’s immigration policies, which have been regarded as Europe’s most liberal.

He has tabled a bill introducing new demands that immigrants must meet, with a tougher stance on asylum-seekers and family patriation. But he is also opening the country to greater immigration.

“We want all people to come to Sweden,” Billström says. “We believe it is reasonable to demand that people find a job and a house or apartment before they bring their family here. For us, work is the key to Swedish society.”

The Swedish migration and asylum minister also wants to open Europe’s borders to legal migration and wants the EU member states to accept quota refugees from the UNHCR, with the refugees to be distributed in the whole of the EU in line with the member states’ population size.