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FALQs: Danish and Swedish Response to the Current Refugee Crisis– Part I

The following is a guest post by Elin Hofverberg, a foreign law research consultant who covers Scandinavian countries at the Law Library of Congress. Elin is a prolific writer and has previously written for In Custodia Legis on diverse topics including What’s in an Icelandic (Legal) Name?Glad Syttonde Mai! Celebration of the Bicentenary of the Norwegian ConstitutionHappy National Sami Day!, the bicentenary of Norway’s constitution, and a boarding school scandal in Sweden.

E20 Road (used by refugees to travel from Denmark to Sweden), photo by Elin Hofverberg.

E20 Road (used by refugees to travel from Denmark to Sweden), photo by Elin Hofverberg.

The huge influx of refugees into Europe as a result of the Syrian crisis has drawn global attention to both security concerns as well as the ability of European countries to absorb this large number of asylum seekers.

It had been reported that Sweden and Germany are the target countries for most asylum seekers. In Denmark police reportedly initially followed migrants and asylum seekers to prevent them from crossing into Sweden in an effort to comply with the Dublin Regulation (Regulation (EU) No 604/2013 Of the European Parliament and of the Council (June 26, 2013)), which requires that asylum is sought in the first safe European country entered.

When asked by Danish reporters why they want to continue their travels to Sweden, several asylum seekers were quoted as claiming that Sweden is “much, much better than Denmark”. It is impossible to know exactly what these migrants were referring to. Both media and the Danish prime minister were also reportedly wondering why they prefer Sweden.

Recent reports show that in 2014 the chance of getting asylum were fairly similar in Denmark and Sweden, with Denmark accepting 67.7 percent of the total applications and Sweden 76.6 percent, compared with 41.6 percent for Germany. As measured per capita, however, Sweden far out-numbered both Denmark and Germany by accepting more than 300 refugees per 100,000 inhabitants, whereas Denmark accepted 100 and Germany just 50. Sweden has also been ranked in 2014 as one of the countries having the highest number of refugees per capita in the EU .

To understand why Sweden may be seen as a more attractive destination for asylum seekers, I have researched the different rules that welcome asylum seekers on either side of the Oresund Bridge.

Here is a brief presentation on the differences in asylum rules for Denmark and Sweden.

1. Who has the right to asylum?

Denmark and Sweden are both part of the European Union (EU) and signatories to the 1951 UN Convention Relating to the Status of Refugees and its 1967 Protocol (Convention and Protocol, respectively). As such, both countries are under legal obligation to accept asylum applications.

In accordance with the Convention and the Protocol, a refugee is a person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” (Id. Convention Art. 1 A(2), p. 14; Protocol Art. 1 (2).)

Rights to asylum are further regulated in Denmark’s and Sweden’s national legislation: the Danish Aliens Act and the Swedish Aliens Act.

Denmark

In addition to those qualifying as refugees under the Convention and the Protocol, the Danish Aliens Act also authorizes the grant of temporary residence to those risking the death penalty or torture if returned home, known as protected status.  (Danish Aliens Act § 7 ¶ 2.)

As of 2014 a new type of temporary residence group was established. Temporary residence permits are given for a year at a time to persons needing temporary protective status “because of the risk for death penalty, torture, or other inhumane treatment or punishment as resulted from a specially serious situation in the home country marked by violence and encroachments of civilians,” known as temporary protected status. (Danish Aliens Act, § 7 3.)

Denmark also provides temporary residence permits on humanitarian grounds in rare cases, for example when an asylum seeker is suffering severe illness. (Danish Aliens Act, 9 § ¶ 1.)

Sweden

The Swedish Aliens Act grants the right to asylum to three different groups of asylum seekers: refugees, persons deemed in need of subsidiary protection, and persons in need of other protection who are present in Sweden. (Swedish Aliens Act, § 1.)

  • Refugees

Similar to the Danish Aliens Act, the definition of a refugee under Swedish law is based on the 1951 UN Convention. Accordingly, a refugee is defined as a foreigner who is in a country where he or he is not a citizen because of “experiencing a well-founded fear of persecution because of race, nationality, religious or political beliefs or because of sex, sexual orientation or membership of other societal group” in the country of his or her nationality and “cannot, or because of this fear does not want to avail him or herself of the home country’s protection.” (Swedish Aliens Act, ch. 4 § 1.) The same definition also applies to a stateless person who is outside a country where he or she has previously had his or her residence. (Id.)

  • Persons Deemed in Need of Subsidiary Protection

A person deemed in need of subsidiary protection is a “foreigner who does not qualify under the Ch.. 4 §1 Aliens Act definition as a refugee, and who is outside of his or her country of citizenship because there is a well-founded reason to believe that the foreigner would be at risk of being punished by death or be subject to corporal punishment, other inhumane or degrading treatment or punishment, or [being] a civilian, be in serious risk of injury due to an armed conflict, and the foreigner cannot, or because of the risk mentioned above, does not want to avail himself to the home country’s protection.” (Swedish Aliens Act, ch. 4 § 2.) The same applies to a stateless person who is outside a country where he or she has previously had his or her residence. (Id.)

  • Persons in need of other protection

A person in need of other protection is defined as a “foreigner who [is not recognized as a refugee under the definition and] is outside the country where he is a citizen, because he or she is in need of protection due to external or internal military conflict, or because of other tensions in the country, [who] feels a well-founded fear of being subjected to encroachment, or [who] cannot return to his or her homeland because of a environmental disaster.” (Id.)

In addition to these three grounds for asylum, the Swedish Migration Office may, in “exceptionally distressing circumstances in exceptional cases,” grant residence permits to individuals who otherwise do not qualify as refugees. This typically applies to cases where there are young children who are ill and cannot receive care in their home countries.

Neither Denmark nor Sweden has set any numerical limits on how many refugees they will take in.

2. Are asylum seekers awarded permanent or temporary residence permits?

In the EU, the types of residence permit granted to asylum seekers are regulated on the national level.

Denmark

Denmark only grants temporary residence permits ranging from five years for refugees to one year for individuals qualifying under Temporary Protective Status (not the same as asylum, see above). Denmark does not currently award permanent residence permits before the applicant has held a temporary residency permit for at least five years.

Sweden

Sweden only grants two types of residence permits to asylum seekers: permanent or three-year temporary ones (which must at a minimum be extended by two years at a time). In exceptional cases due to national security, shorter temporary residence permits may be issued, but no shorter than one year. (Swedish Aliens Act, ch. 5 § 1.)

As of September 2014, the Swedish Migration Authority has adopted a policy that all Syrian refugees who are granted asylum in Sweden shall receive permanent residence permits. A review of this decision was requested by a parliament member representing the Sweden Democrats earlier this year.

On October 23, 2015, the Swedish government struck a deal with the opposition in which asylum seekers (excluding families or unaccompanied children) will receive temporary residence permits. The rules will apply to all asylum decisions that are made after the rules take effect regardless of when the application was first logged.

3. When can family unification be a ground for a residence permit?

Denmark

In Denmark family unification is granted to spouses, partners and children of immigrants. However, individuals with a one year residence permit must first have this permit renewed before applying for family unification. In effect these asylum seekers must at minimum wait one year to be reunified with their family.

Generally family reunification requires that the sponsoring family member can show that he or she has a connection with Denmark and has the ability to provide for the family member it sponsors. However, refugees can be excepted from this criteria.

Sweden

Sweden grants family unification for spouses, partners and children of the immigrant. It may also allow other family members in certain cases, typically when the applicant is dependent on a family member who has received a permanent residence permit in Sweden.

Normally, persons requesting to sponsor a relative are required to show ability to support themselves and “have a home of sufficient size and standard” for them and the relative(s). This requirement, however, does not apply to refugees and EU Citizens.

Once again, tomorrow I will provide information on the variety of benefits to which admitted refugees are entitled in Denmark and Sweden.

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