When does a child's ties to Denmark trigger a residence permit?

Both children and their parents may have a right to stay in Denmark based on the child’s attachment. And the authorities are increasingly taking this into account, but still not sufficiently.

When we talk about human rights concerning refugees, things have gone steadily downhill in Denmark over the past 20 years. But when it comes to children, things have moved slightly forward recently. This is due – in all modesty – to a handful of lawyers and organizations fighting a stubborn battle, year in and year out. Both through boards, courts and reporting to various committees and commissions in the UN, the EU and the Council of Europe.

Protected by the Conventions

Children residing in Denmark, regardless of whether they are Danish or foreign citizens, enjoy special protection under several international conventions to which Denmark is a signatory. In addition to the UN Convention on the Rights of the Child, they may also be protected by the European Convention on Human Rights (ECHR), the UN Refugee Convention, the two UN Conventions on Statelessness and the EU Charter of Fundamental Rights.
 
The most important article in the Convention on the Rights of the Child requires the state to consider the “best interests of the child”, which plainly means what is best for the child. Article 3 reads as follows:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

Several other conventions require the state to take special care of children, as they are more vulnerable and rarely responsible for their own situation. Time is also a different factor in a child's life: The childhood shapes a person for the rest of her life.

Denmark's consideration of the best interests of foreign children

When it comes to children of asylum seekers, refugees and other foreigners as well as unaccompanied refugee children, both the government and the civil servants have, to put it mildly, not placed much emphasis on the "best interests of the child" over the years.
 
Denmark acceded to the Convention on the Rights of the Child in 1991. However, it was not until 2012-13 that the best interests of the child were directly written into one of the paragraphs concerning rejected asylum seekers in Danish law. But still, no specific assessment was made during the case processing. This was proven by a number of specific cases which Refugees Welcome, among others, raised in the media. In 2014, the Danish newspaper Information asked on the front page for cases where the responsible ministry had even mentioned the best interests of the child and found none.

The parents' responsibility

in asylum centres than by their experiences in war-torn homelands, the Danish authorities have placed the entire responsibility on the parents because they did not return home. In numerous rejections of applications for residence for children, the authorities have written that “it is therefore the parents’ responsibility to leave”. When parents are asked why they cannot or do not want to return, however, the most common justification is precisely their concern for the children’s future and safety.

”The uncertainty that parents create, of course, burdens the children. Therefore, it is a shame for the children, but that does not change the parents’ responsibility.”
  – Minister for Integration Birthe Rønn Hornbech (V) January 2010

In 2017, the change in the law several years earlier had only resulted in residence permits for three of the many children who had spent a large part of their childhood in Danish asylum centers. And only in cases where their parents could not take care of them in a reassuring way – often due to mental illness or trauma. It was maintained that the responsibility for the child's best interests primarily lay with the parents.
 
The Afghan girl Rokhsar was finally granted a residence permit in 2017 after being the main character in an award-winning documentary and the subject of great attention in the political debate, but the case did not lead to changes in practice, when families with even longer stay subsequently were refused.

Screenshot from the film "Mon de kommer om natten?"

Denmark as the real homeland

In many cases, a refugee child has never set foot in the country that is formally listed as the child's homeland. A child usually acquires the citizenship of his or her parents, and the United States is the only country in the world that attaches legal significance to whether a child is born on its territory. Children born in Denmark to parents who are recognized as stateless are entitled to Danish citizenship – but not if they came here after birth. However, there are also many children who are born outside their parents' homeland or out of wedlock and have problems obtaining citizenship or obtaining a passport from their parents' homeland – and are therefore in practice stateless without being recognized as formally stateless.
 
For the child herself, it is of course most important which country she grows up in, and thus experiences as her real homeland. The attachment that a child acquires is protected under Article 8 of the European Convention on Human Rights (ECHR). Nevertheless, there are currently many young people living in Denmark who were born and raised with Bamse & Kylling, Fastelavn and Midsummer bonfires, but still only have a temporary residence permit, or perhaps do not have legal residence at all.

Over the years, Politiken's Olav Hergel has described a number of children who slowly but surely broke down in Danish asylum centres. Refugees Welcome applied several times in vain for Taufiki and his mother from DR Congo to stay because of his attachment, mental stress and the fact that deportation was hopeless. He ended up getting asylum later, when he had become a teenager, because there was now a risk that he would end up as a child soldier if they returned. He was born as a refugee in Uganda and has never been to DR Congo.

”I'm afraid of spiders and that my mother will die. I'm afraid of the police. I'm afraid that they will see me and send me to Africa, because then I will die. It's very dangerous there.”
              – Taufiki, 9 years old, 2017

Playground in asylum centre Sandholm

From the political side, there has been a deliberate attempt to limit the importance of children's ties to Denmark, most extremely with the introduction of section 19 a in 2019, which gives refugee children's ties less importance than other children's ties during the first 8 years of their lives, even if they are legally resident. Formally, this is still the law that applies, but the authorities have lowered the bar in several cases in recent years.

After 7-8 years of legal residence at the compulsory school age, ties are usually deemed sufficient, and a few years in kindergarten can also be counted. The first 4-5 years in a child's life have very little importance in this matter. The Immigration Board, the Refugee Appeals Board and the Danish Immigration Service are continuously updating a comprehensive joint memorandum on the scope of Article 8 of the ECHR, based, among other things, on the judgments that we discuss below.

Attachment during legal and illegal residence

If the child has never had legal residence at all, the authorities have refused until 2023 to take into account the real attachment that has taken place – even if the child only reads and writes in Danish, has grown up with Danish culture and has her entire network in Denmark. A strange assessment, since the attachment occurs regardless of the legality of the residence, and a child rarely has any influence on it. In 2023, a surprising decision was made by the Immigration Board, recognizing many years of attachment for two children who had never had legal residence, see below.
 
One of the glaring examples of previous practice was Yasin, who was rejected in 2018, when he was 16 years old. He was born and raised in Denmark and had lived in various asylum centres as a rejected asylum seeker with his mother his entire life.
 
The two boys, mentioned on page 36 of our report ‘Asylum Camp Limbo’ from 2011, were 2 and 3 years old respectively when they entered Denmark in 2005 with their parents. They grew up in the asylum system and attended Danish elementary school. They never received a residence permit and today live as adults underground in other European countries. In practice, two Danish boys who are stateless and illegal.

Photo from 2011, today the boys are 22 and 23 years old.

When the Danish authorities do not attach sufficient importance to children’s actual attachment and do not grant them residence permits as they should, some will disappear to other European countries or end up being deported to their official home country. But some will still end up being granted residence in Denmark sooner or later, as the examples show. And the longer they have lived in uncertainty in the asylum system, the more burdened they will be – and in the long run they may become a much greater expense to society, as a new study from the Rockwool Foundation has shown.

Positive decisions

A number of judgments both in and outside Denmark have in recent years established that children have the right to grow up with both parents; that children's attachment is crucial– even if their stay has been illegal; and that the very fact that a couple has chosen to have a child together and made a commitment to each other can constitute family life. This is a positive development that Refugees Welcome has done its part to push for. But there is still a long way to go to ensure children's rights, especially under the Aliens Act.

ECHR: ‘Osman v Denmark’, 2011
The European Court of Human Rights ruled that a child’s illegal period of residence should be counted as attachment when there had been a previous legal stay. It was Refugees Welcome who at the time referred the Osman case to the AIRE Centre in London, which won it, and it has since been considered one of the court’s landmark decisions.

EU ruling on the right to both parents for EU citizen children, 2022
The ruling has been decisive for Denmark, even though it concerned children with other EU nationalities. The ruling established that a parent of a minor child who is a citizen of an EU country has a derived right of residence in the EU country where the child is resident, if the child would otherwise have to leave the EU to be with his or her parent. It is required that both parents share the child's daily care and support.

The Danish Immigration Board on the affiliation of rejected children, 2023
After Refugees Welcome and others had argued in vain for many years for residence for children of rejected asylum seekers who had spent their whole childhood in Denmark, a very startling decision was made by the Immigration Board. The case concerned a family for whom Refugees Welcome had applied in 2017 and had been rejected. The Board now ruled that Denmark, in accordance with its international obligations, should grant a residence permit to the two children, who at that time had spent 12 and 15 years respectively as rejected in the Danish asylum system. This was the first time ever that affiliation became decisive for children who had never had legal residence. However, this matter was not directly mentioned in the decision.

The Danish Immigration Board on when a family has been established, 2023
Refugees Welcome was successful in a complaint to the Immigration Board in a case from Eritrea. The Danish Immigration Service had refused family reunification on the grounds that the marriage certificate could not be approved in Denmark and that the couple had not lived together for a long time, and did not take into account that the couple had had a child together. However, the Board referred to 3 judgments from the ECHR and found Refugees Welcome right in that the listed factors together constituted an established family life: The couple had committed themselves to each other through a wedding ceremony, had planned and had a child together, the father living in Denmark was responsible for their support and had applied for them to be united. References to this case led to a number of subsequent positive decisions, thereby changing practice.

This family was the second case where the new approval of established family life was used.

Danish Immigration Board on the 3-month application deadline, 2024
Refugees Welcome also won another appeal for an Eritrean refugee living in Denmark. He himself had been granted asylum in 2018, and had applied to bring his daughter here, but had been rejected several times, including on the grounds that the 3-month application deadline had not been met. The board reversed the rejection and ruled that the deadline should not be waived in cases concerning refugees and that the daughter had no other caregivers.
 
Danish Supreme Court on the mother of Danish child in Roj camp, 2024
The group Repatriate the Children and lawyer Knud Foldschack won an important case after a year-long fight to bring the Danish children home from the terrible conditions in the camps for captured IS supporters in Syria. The Supreme Court ruled that the last Danish child should be taken home too – with his mother, who was his closest caregiver, even though she had been stripped of her Danish citizenship.