Refugee deportation is legal now: Human rights violations are lurking after Danish Parliament passed new law

By Danique de Laat

Last month the Danish parliament passed a law that enables Denmark to keep new refugees out by deporting them to a third country (a non-EU country). After removal from Danish soil refugees have to wait for the processing of their asylum applications in a non-EU state. If the asylum application is successful, this would mean the applicant can stay in the third country. The option to stay in Denmark is not available.

As refugees can no longer apply for asylum in Denmark, the country is directly violating the right of refugees to seek international protection. Precedent has shown that this type of construction creates a long list of human rights and refugee rights violations, thereby also violating many other international laws.  While the law is only a month old, this article will try to illustrate the consequences of its structure by making a comparison with another European model that aims to deport refugees out of Europe, the EU-Turkey deal.

The EU-Turkey deal

Through the framing of the public debate on migration in a negative way, the context of the migration debate has shifted from a humanitarian issue to a security threat. Refugees who have the right to seek asylum in a safe country are often described as “irregular” or “illegal” migrants, as they are in many cases forced to cross the border without the proper documentation, such as passports and visas. As a result of this negative perspective, the EU tries to strengthen its borders to keep all refugees out.

Because strict border control at the EU border has not deterred migrants from trying to reach European shores, the EU has put a focus on working with third countries, non-EU member states. Using a third country’s border control for your own gains is called border externalisation, through which migrants are stopped at the borders of third countries, and thus barred from entering the EU. For the EU it has become a priority to hinder the entry of migrants into Europe through Eastern European and Mediterranean routes. By using bilateral and multilateral agreements, the EU can extend its border control to transit countries such as Turkey. Which is why, after the refugee crisis of 2015, the EU-Turkey deal was devised. In line with the reasoning of using third countries in migration policies, the new Danish law was created.    

The EU-Turkey deal entails that Turkey closes its border to Europe, prevents all refugees from entering Europe by land or sea, and takes back refugees who have travelled through Turkey and are now stuck in refugee camps in Greece. In exchange for letting the EU use Turkey’s border control in their migration policy, Turkey received EUR 6 billion in aid. As many EU politicians agree that the EU-Turkey deal is a success, they are hoping to replicate the deal with African countries to create more buffers to stop African asylum seekers from crossing the Mediterranean.

Although deemed a success by policymakers, the EU-Turkey deal has received plenty of criticism from human rights organisations like Amnesty International for disregarding the human rights violations that occur as a by-product of the EU-Turkey agreement. Of the 4 million refugees living in Turkey some are locked inside refugee camps, while others are dispersed in cities across the country. They often do not have a proper work permit and are therefore unable to work in Turkey’s formal sector, resulting in many refugees living below the poverty line. Additionally, many refugee children are unable to go to school, thereby not being granted their right to education. 

Deportation under the EU-Turkey deal

Other human rights violations have taken place during Turkey’s deportation of  refugees back to Syria. Even though the principle of non-refoulement states that individuals risking persecution or ill-treatment in their country of origin cannot be expelled from or rejected by the country where they seek asylum, Turkey has forcefully sent Syrian refugees back to Syria, despite it not being a safe country. The prohibition of refoulement and collective expulsion, or the principle of non-refoulement, is the basis for asylum / international refugee protection legislation. It is included in both international refugee law and in human rights law, and is written down in Article 4 and 19 of the Charter of Fundamental Rights (CFR). For refugees this means they cannot be expelled or rejected at a border of another country if they face a real risk of being harmed in their own country. This includes individuals but also groups such as people with the same nationality. As migrants also enjoy the right to liberty and security, unlawful detention, as in refugee camps in Turkey or Greece, is incompatible with the CFR. Article 2 of the Treaty on European Union (TEU) states that the “Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights”. These rights are not only extended to EU-citizens, but extend to everyone. While on paper the EU seems to aim to protect human rights, in practice we see a different narrative unfold. 

Human rights violations in refugee camps

In addition to a worsening scenario for the future of migrants in Turkey, the EU-Turkey deal has had great repercussions for refugees staying in Greece. What should have been a stay in temporary refugee camps has for many transformed into a long period of living in detention centres with terrible living conditions and uncertainty. Many refugee camps are poorly funded and lack basic facilities such as access to clean drinking water and a functional sewage system. Due to the deal with Turkey, the asylum applications of refugees are not being assessed individually, but are being rejected in large groups. Based on the fact that they all travelled through Turkey, they have to go back there as Turkey is classified as a “safe third country”, even if this means they will be living in poor living conditions and risk refoulement.

The situation in Greece was already abysmal before the EU-Turkey deal but became even worse after the deal was struck. Refugee camps were transformed into detention facilities, where refugees wait to be sent back to Turkey. Amnesty International reported on the poor living conditions which include a lack of quality food, blankets, and medical care. While unlawful under EU law, Greece has put thousands of migrants in arbitrary detention. Besides their horrible living conditions, they were given no legal aid nor information on their status nor official written detention orders. Instead of getting fair evaluations of their asylum applications, they received group-based detention. While most groups or migrants are now allowed to leave the camps after registration with the Greek immigration service and the police, they are still not allowed to leave the Greek isles. Other groups that are suspected to be economic migrants are still being detained in camps. While most migrants are refugees who sought to escape persecution in their country of origin, they are now being detained in substandard conditions, waiting to be deported to Turkey with no prospect of international protection.

No consideration is being given to these human rights violations such as unlawful detention, inhumane living standards, deprivation of the right to work or learn, and risks of refoulement.

 Parallel Danish law and EU-Turkey deal

The new law that the Danish parliament accepted at the beginning of June makes it so that refugees are no longer able to request asylum in Denmark. Instead refugees will be deported to third countries to be kept in refugee camps until a decision on their asylum application in the third country is made.

At this point it is still unclear which third countries would agree to this scheme. So far the law does not mention any African countries that are willing to participate. This makes the law even more dangerous, as the parliament has agreed to the law, yet no “safe” third countries have been identified for its fulfillment. As the Danish Refugee Council has stated: “The fact is that the parliament have voted on a bill which paves the way for a potential asylum processing model that does not yet exist and which they therefore do not know what actually entails”. This leads to a risk similar to the EU-Turkey deal, where Turkey has been regarded as a safe country, in spite of the numerous violations of the rights of the refugees. So far Danish media has hinted towards countries such as Rwanda, Egypt, Eritrea and Ethiopia being potential “safe third countries”. However, they are countries which by no means can all be classified as “safe third-countries” nor can they ensure that the prohibition of non-refoulement will be upheld. This new law can allow for the mass deportation of refugees who apply for asylum in Denmark to potentially unsafe countries. Moreover, following this deportation there is a great risk for the repetition of human rights violations as in the Greek and Turkish refugee camps, but this time in African camps.  

The law still has many gaping holes which makes it hard to pinpoint the exact repercussions of its implementation. But the parallel between it and the EU-Turkey deal predicts violations of the right to seek protection. Instead refugees will likely face collective deportation to potentially unsafe countries with more human rights violations lurking in the future.

Edited by Mira Kurtovic, artwork by Loredana Pearlstein