Exclusion clauses, expulsion sentences and Tolerated stay
Exclusion clauses
The UN Refugee Convention contains a provision (article 1F) which ensures that a person who has committed a crime against peace, a war crime, or a crime against humanity is excluded from international protection – i.e. asylum. This is called the exclusion clauses and in the Danish Immigration Law this provision is stated in § 10.
Yet sometimes you have a situation where an asylum seeker, on one hand, is in danger in her/his country of origin and therefore is protected by § 7,1 or § 7,2 but on the other hand, is excluded from international protection because she/he has committed a crime against humanity. For example, this person can be a prison guard who participated in physical assaults on prisoners or an officer who has committed a war crime. Thus, Denmark can neither deport this person to her/his country of origin nor can Denmark grant her/him rights as a residence permit in Denmark.
Tolerated Stay
The person then winds up on so-called ”Tolerated Stay”. This is an open-ended status, where it is mandatory to live and spend every night in the deportation camp Kærshovedgård, with a duty to call in daily with the police. You are not allowed to work or study, meals are served three times a day in the canteen and only very small cash allowances are paid out. Read our article “Asylum seekers locked up like criminals”.
104 persons are presently on Tolerated Stay in Denmark, and since 2007 none of them have been returned to their home country. Three cases have been taken to The Supreme Court, where the judges in two of them cases found the duty to stay in the camp out of proportion with the crime, and that the time aspect presented a breach of their human rights. In the first case this was after 8 years, the second after almost 4 years. So far, 19 persons have been taken off the duty to stay. The minister has stated that 4 years seems to be the top limit.
Expulsion sentence
Most people on Tolerated Stay are not subject to exclusion clauses, they have had a legal stay in Denmark and committed a crime which has led to an expulsion sentence. The government is very concerned with expelling more criminal foreigners. The law says any sentence must be followed by an expulsion order if possible – only very strong attachment to Denmark can make it impossible.
A refugee who was granted asylum 3 years ago and gets into a bar fight will get an expulsion and lose his residence permit, even if the sentence is only for 30 days of prison. After serving the time, the perosn will be called in for interview with Immigration Service, where they will assess if there is still a need for protection. In the milder cases, the resience permit will be given back. But in more serious cases the expulsion will be sustained, and the case will continue to the Refugee Appeals Board, where a lawyer will be appointed.The key point is whether there is a risk that the person will repeat the crime. During the case, the person must stay in Kærshovedgård.
Most recently arrived refugees are still facing a risk in their home countries, so they can’t be sent back – thus ending up on Tolerated Stay for an unknown amount of years in Kærshovedgård in stead of being expelled. An unreasonable punishment for a minor offence.
According to the Danish Institute of Human Rights, the Danish UN Committee and the employees of the Prison and Probation Service, Kærshovedgård must be considered an open prison. Offers and facilities are worse than at the time when the place was still in use as a prison, and the residents are in practice forced to stay in the camp. This is due to the combination of the remoteness of the place, the duty to spend the night there and the lack of economical means / right to work.