Asylum status and the war in Ukraine

The war in Ukraine calls for an explanation around the concepts of asylum and protection. A Russian might have a stronger need for asylum than a Ukrainian, which may come as a surprise to most people.

Many believe that you will be granted asylum if there is a war in your home country, but that is a misunderstanding. Usually, you must be personally persecuted to be granted asylum under the UN Refugee Convention – in Denmark this falls under article 7.1 in the Alien Act.

You can also be at personal risk of death penalty, torture or inhuman treatment without being persecuted, and this calls for protection under the international ban on torture or one of the other human rights conventions, among those The European. That would lead to asylum under article 7.2 in the Danish Alien Act. For instance, it could be due to risk of abuse from family members or other private actors which the authorities might not be able to protect you against.
War in itself does not lead to asylum. But sometimes situations may arise in certain areas where it's life threatening for anyone to be present due to war, and thus nobody must be returned to that area. This falls under the European Convention on Human Rights article 3 about inhuman treatment.

However, the level of risk must be very high – for instance, the Danish authorities never found the Iraqi war dangerous enough, and it took a judgement from the Court of Human Rights in 2011 to assess parts of Somalia that dangerous.

Due to the many arriving refugees from Syria and the character of the war, Denmark introduced a new asylum status named article 7.3, which grants temporary stay if the situation in the home country is affected by random violence and attacks on civilians, and the general level of risk is very high. Around one third of the Syrians received that status.

No other countries than Syria and Somalia have been on that level, and in both cases the general level of risk has dropped. But this does not necessarily mean that refugees can be returned, and both UN and EU are right to strongly oppose to Denmark's revoking of permits.

How will people fleeing the war in Ukraine be judged by these criteria then?

Ukrainians fleeing the war do not fall under the Refugee Convention, as they are not persecuted by their own state (art. 7.1) and also not at personal risk of torture or inhuman treatment (art. 7.2). The question is whether they fall under the new article 7.3 or not. Experts on asylum law are in doubt on whether the level of risk is high enough – so far. It requires extreme conditions, no safe areas, a high number of dead civilians, and the parties of war on a wide scale using methods or techniques leading to civilian losses. The first month of attacks on Ukraine did not live up to these criteria, but the recent development has unfortunately gone in that direction.

This means that most of the Ukrainian refugees would have had their claims for asylum rejected and had ended up in the deportation camps, if we had not passed the Special Act. Or they might have been put on hold for 2 years in the asylum camps, which is what we did to the Bosnian refugees.

We will know more when the first asylum cases for Ukrainians have been decided. So far, around 2.000 have applied for asylum on top of the 16.000 who applied under the Special Act. The criteria of the Special Act include no assessment of risk at all, but only requires documentation for being Ukrainian and having lived in the country until February 24, 2022.

So far, all Ukrainian asylum cases have been put on hold until April 28, 2022. Before Russia's attack, very few Ukrainians asked for asylum in Denmark (25 in all of 2021) and would normally be rejected.

Russians fleeing the war have a very different situation, and we will also see many more of them – but they are not covered by the Special Act. They are also not allowed to enter without a visa, but it's reasonably easy for them to get one. These people may have individual asylum motives and may be at risk of persecution for refusing to perform military service or for criticizing Putin's war. There are however unclear questions: Putin threatens with up to 15 years prison sentence for speaking against the war, but the asylum decisions depend on whether such sentences will in fact be pronounced.

Bien calls Putin a war criminal, and evidence are being collected to accuse him of crimes against humanity – but he was never accused of his crimes in Chechenia or Syria. If Russian soldiers are forced to commit war crimes and serious human rights violations, they should be granted asylum under the Refugee Convention (art. 7.1), such as Syrians and Eritreans are for that reason. But to flee from military conscription and be sentenced for that does not in itself lead to asylum, as any country is entitled to punish deserters. To be granted asylum for this reason alone, the penalty has to be unreasonably high according to Danish standards.

Accordingly, it is also too early to say anything definite about the chance of being granted asylum as a Russian. Russian asylum cases have until now almost exclusively been about residents from Chechenia and a few with LGBT motives. In 2021, only 187 Russians applied for asylum in Denmark.

Finally, more complex and mixed cases may arise, for instance Russians who are born and raised in Ukraine, and thousands of Russians and Ukrainians are married to each other, living in one or the other or a third country. Some homosexual couples may have been able to live together in Ukraine, which they will not be able to in Russia. It may be difficult to refer them to a safe country.

In general Denmark has a high threshold for asylum, and in practice no options for granting permits on humanitarian grounds. But the assessment of the risk factors mentioned above does not only rely on the judgements from the Refugee Appeals Board, but also from international fact finding reports and rulings from the European Court of Human Rights.

Find Refugees Welcome's flyer with good advice for asylum seekers in English, Ukrainian and Russian here.

Read more about the Special Act for Ukrainians in English, Ukrainian and Danish here.