Michael de Laine

New EU court ruling could bring further political problems for Denmark - researcher

By Michael de Laine, Copenhagen, 27 February 2009

A recent ruling by the European Court of Justice could bring new political problems for Denmark and its opt-out on asylum matters. The ruling raises questions about the relationship between the Dublin rules, which bind Denmark, and the EU asylum policy and the European Human Rights Convention. There may be considerable political pressure on Denmark to either adapt its rules to the EU’s rules or leave the Dublin agreement.

A recent ruling by the European Court of Justice (ECJ) could bring new political problems for Denmark and its opt-out on asylum matters, says Thomas Gammeltoft-Hansen, a research analyst at the Danish Institute for International Studies (DIIS), specialising in migration and the EU’s internal dynamics.

On 17 February, ECJ ruled in the Elgafagi case, which involves interpretation of a clause in EU directive that determines which people the EU member states must as a minimum recognise as refugees or give some other form of protection to.

According to the directive’s paragraph 15c, people who flee from arbitrary violence resulting from conflicts have a right to protection. But, says Gammeltoft-Hansen, the paragraph is vaguely worded and there has long been uncertainty about what the definition actually covers.

It was thus the European Court of Justice’s job to clarify this. The court ruled that paragraph 15c opens up for protection for people who flee from areas or countries with widespread arbitrary violence, even though they cannot prove that they have themselves been exposed to the violence individually.

“This means that the EU regulations are broader than e.g. the European Human Rights Convention,” says Gammeltoft-Hansen. “It also means that this is an area where the EU regulations are clearly more liberal than the current Danish asylum rules.”

Denmark’s opt-outs mean that Denmark is not bound by the directive and need not adapt to the ECJ ruling - unlike many other EU members, the research says.

But, he warns, politically there are dark clouds on the horizon: Denmark is bound by the parallel Dublin agreement, which implies that asylum-seekers need only apply for asylum in one EU country. This means that asylum-seekers can be returned to the country where they first arrived, or which in other ways has committed itself to processing the asylum application.

Denmark’s participation in the Dublin system so far has meant that it has been able to return more asylum-seekers to other countries than Denmark has received.

But the Dublin agreement implies clear, uniform rules for who has a right to protection and how the asylum applications must be processed.

“A clear difference between the Danish rules and the minimum standards in the rest of the EU is therefore a problem,” Gammeltoft-Hansen says. “Denmark risks running into a situation where other countries feel they cannot send ‘conflict refugees’ back to Denmark if it is certain that Denmark will reject them. This situation raises a number of legal questions about the relationship between the Dublin rules and the rest of the EU’s asylum policy and the European Human Rights Convention. It can also result in considerable political pressure on Denmark to either adapt its rules to the EU’s rules or leave the Dublin agreement.”

He says the DIIS Danish-language report ‘De Danske Forbehold over for den Europæiske Union: Udviklingen siden 2000 (The Danish Opt Outs from the European Union: developments since 2000)’ covers questions arising from the Elgafagi and Denmark’s position regarding asylum policy and the Dublin agreement in chapter 5.5 and pages 312-3. 

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