Legal experts: Syrian withdrawal cases should be reopened

The newspaper Information has documented that the 100 final rejections from the Refugee Appeals Board are based on a manipulated use of sources – just like the Eritrea report in 2014

Denmark is no longer a safe third country

Other countries in Europe have also granted permits to Syrians for the same reasons and are also assessing the situation in Syria on a regular basis. But only Denmark has started withdrawing permits, and in our neighbour countries most of the Syrian refugees have been granted permanent stay or citizenship by now.

Some of the Syrians who lost their permits in Denmark have fled to other countries in the EU. Usually they would be sent back to Denmark due to the Dublin regulation. But Germany has recently granted residence to several of them, as local German courts have found that since Denmark is not bound by the EU directive on granting and revoking international protection, "Denmark is no longer considered a safe third country", as the Berlin local court said. This puts Denmark in the same category as Greece and Hungary: countries where the Dublin regulation is in practice suspended, as they are not living up to the standards of asylum processing.

The decisions from the Refugee Appeals Board

Much has been said and written about the withdrawals. But surprisingly little about the actual case handling in the Refugee Appeals Board, being the second and final instance. Tesfaye has consistently referred to the "arms-length principle" and repeated his auto reply that the decisions where taken by "the independent Refugee Appeals Board with a judge at the end of the table". However, one of the three members of the board is a civil servant from his own ministry, and the background information which the board refers to in these cases are collected by Immigration Service, which is directly under Tesfaye.

Still, the board has disagreed with quite a number of the withdrawals made by Immigration Service. Most of the Syrians who lost their permits at first, but then appealed to the board, have been allowed to stay in Denmark. Around half have been granted a stringer status than before. Thus, the board has recognized that Syria is not safe for those people and often considered a personal risk that Immigration had dismissed.

"The decisions seem to have been made on a deficient basis…" (Louise Halleskov)

The recently resigned chairman of the board, Henrik Bloch Andersen, explained in the media several times that the board uses 1,400 background reports (COI). However, it is exactly the briefs and reports from the Danish Immigration Service which the board refers to in the rejections. A report from the EU asylum office from April 2021 is also mentioned, which is based on the Danish sources, but concludes (contrary to the Danish Immigration themselves) that the sources disagree. UNHCR has been warning all this time that no areas in Syria are safe, and no Syrians can be returned safely, which was also stated in the latest ruling by the European Court of Human Rights.

Country reports and briefs from Immigration Service

All sources have had their own quotes sent for review and could make corrections. But the sources have not seen the full report, so they have not been able to see how their own statements have been used by the Danish authorities. The newspaper Information has managed to interview 8 out of the 10 named sources, who all agree that their statements cannot be used to draw such conclusions as Immigration Service and the board do.

This is exactly the same situation which led to a country report from Immigration Service about Eritrea in 2015 being totally dismissed, after months of stubborn digging by the newspaper Berlingske. Back then, it was disclosed how employees in Immigration Service had been directly instructed to understate several risk factors, and only including quotes from sources which could support the agenda of justifying rejections – though each quotation was correct. Several of the main sources distanced themselves sharply from the conclusions of the report, just as it happens now with the Syria reports.

"The board cannot choose to only refer to the creative interpretations of the source material made by Immigration Service." (Jesper Lindholm)

One of the sources, the Syrian lawyer Abbas Almoussa, says to Information: "I have never said that there would be no risk for Syrians who have fled if they return to Syria. It's insane if Danish authorities interpret my statements like that. It's a twisting of my words."

The Syrian withdrawal cases are mainly about two issues:

1) Most of the Syrians who have lost their right to protection in Denmark are women and elders who have not personally participated in the uprising against president Bashar al-Assad. They often refer to their family members' activities against the regime which they claim that the regime will punish them for. In two out of three cases, it's a close family member who refused to serve in the Syrian army. But the Refugee Appeals Board does not agree that they have anything to fear, as they allegedly only risk a punishment if the military objector or deserter has a so-called special profile. In the many cases which Information read, the board only identified such a special profile once.

The board refers to two reports from Immigration Service as documentation for this assumption. But the only sources who say that only family members to profiled military objectors and deserters risk persecution made their statements back in 2017. As opposed to this, several sources said in 2020 that all family members are facing a risk.

When Information talked directly to the sources, it turned out that Immigration did not ask them about the risk for family members returning to Syria, but only about family members who have stayed in Syria, and therefore are most often considered loyal. When the sources are asked to comment specifically on the risk for refugees, they all (the 8 out of 10 named sources which Information has been able to reach) agree that there is a general risk for persecution for refugees who return on account of their family members having refused to serve in the Syrian army.

"… of what undeniably looks like a deliberate and unsustainable selection and use of sources." (Jens Vedsted-Hansen)

2) There is also a high risk for former state employees who have left the country without permission, and this might also include their closest family members. On this issue, the Refugees Appeals Board has shifted it's policy.

Until April this year, the board found that only employees who had held relatively high positions were at risk when returning, so a number of refugees lost their permits on thus basis. But on April 8th 2021, the Coordination Committee for the Refugee Appeals Board decided to change that practice, based on new background information pointing to everybody who worked in the public sector and left the country being at risk on return.

Shortly after, the board decides to put all cases concerning state employees on hold by request from Immigration Service who claims they might be able to collect information that would go against the new practice.

"When it turns out that the decisions were made on such a flimsy basis (…) therefore they should be reopened." (Silvia Adamo)

Recently, a paper from the Ministry of Foreign Affairs from September 2021 has showed up, which supports the new practice from April, but meanwhile several people who have had their permits withdrawn finally have been sent to the detention centres, as all such cases were on hold and therefore could not be reopened.

Reports from Amnesty and Human Rights Watch

Amnesty International has investigated what can happen to Syrians who return – more or less voluntarily. In a report from September this year the organisation described cases of 66 returned Syrians, of these were 13 children. The report documented that Assad's intelligence service exposed returnees to arbitrary detention, torture and rape, allegedly because they had fled the country.

Human Rights Watch launched an almost similar report in October, interviewing Syrians who had returned from Lebanon and Jordan. Among the 65 returnees, they could document 21 arbitrary arrests, 13 exposed to torture, 3 being kidnapped, 5 killed without trial, 17 disappeared and 1 exposed to sexual violence. In the report, HRW directly warns against the Danish practice of revoking residence permits.

Experts criticize board decisions sharply

Information has presented decisions and reports to four experts in asylum law, and they all agree that the cases should be reopened, as the risk for returned refugees have not been sufficiently considered.

"The decisions seem to have been made on a deficient basis. It raises doubt to whether the reasons for denying asylum in each case have been sufficient. Therefore, the immigration authorities should reopen the cases and assess them in the light of all relevant information," says Louise Halleskov, lecturer at Aarhus University Faculty of Law and former member of the Refugee Appeals Board.

Lecturer in migration law at Copenhagen University Silvia Adamo also thinks the board should make a new assessment of the cases. "When it turns out that the decisions were made on such a flimsy basis, it should be regarded as new information and therefore they should be reopened. In my view, the decisions would probably have come out differently if the sources had been considered in full," she says.

"The board has not presented any real explanation for reaching the conclusion that only family members to profiled military objectors and deserters are at risk," says Jesper Lindholm, lecturer in asylum and migration law at Aalborg University and former member of the Refugee Appeals Board. "Several sources are saying something different, and the board must consider those ones separately. The board cannot choose to only refer to the creative interpretations of the source material made by Immigration Service."

Professor of law at Aarhus University and former member of the Coordination Committee for the Refugee Appeals Board Jens Vedsted-Hansen states: "According to my opinion, the board must take the initiative to reopen the cases and consider the importance of what undeniably looks like a deliberate and unsustainable selection and use of sources."