Danish Immigration Service is being overruled concerning attachment

First instance is totally going astray when second instance does not agree in a single case out of 29 where Immigration Service revoked residence permits from Somalis

Refugees Welcome assisted a young Somali man and described the decision from the Refugee Appeals Board from November last year. He arrived in Denmark 14 years ago and is a model on successful integration. However, he had lost his residence permit for the second time in his life but gotten it back again – after years of fear and uncertainty about his future.

In that ruling, the Refugee Appeals Board wrote what can be described best as a reprimand to Immigration Service in legal lingo. A translation would be: "What on Earth are you guys doing? When we told you back in 2018 that his attachment is strong enough to let him stay here, how can you do the same thing four and a half years later, when his attachment has only grown stronger?"

This case made the coordination committe of the Refugee Appeals Board decide to reopen the only two out of 29 Somali cases that they had confirmed in 2022, and they were overruled in the beginning of 2023. 25 cases had already been overruled, and two had been returned to Immigration Service for reconsideration. In other words, the board did not confirm a single one of Immigration Service’s decisions, and 93% of the cases have been overruled today. This was brought forward by Jyllands-Posten.

The disagreement is mainly over the attachment to Denmark. But also when it comes to the assessment of asylum we have seen large discrepancies between the board and Immigration Service in both Somali and Syrian cases, as we wrote about in 2019 and 2021.

Afterwards, Refugees Welcome has succeeded in getting yet another decision overruled in February 2023 (read more about the case here – in Danish only). This was a woman from Somalia and her 11-year-old son who had both lived legally in Denmark for 11 years. She arrived via family reunification to her husband and their son was born here. Later the husband had returned and left his family – meaning that she and the son had lost their grounds for residence. As she did not have a refugee status, her appeal was under the Immigration Appeals Board instead of the Refugee Appeals Board – and the board agreed with Refugees Welcome that especially the son’s attachment to Denmark was sufficiently strong to prevent a revoking. The case is probably not the only one that the Immigration Board has overruled.

The disagreement is about how to interpret article 8 in the European Convention on Human Rights which concerns family life and attachment. Where is the line between the convention and the wish from the Danish Parliament to kick refugees out of the country, even if they are law abiding citizens? Immigration Service should adjust to the line of the two boards as they are higher instances, but that is not happening.

In connection to passing the laws on the Paradigm Shift where one element was tightening of attachment, MP Mattias Tesfaye sent a question in writing to former minister of integration Inger Støjberg in December 2018 (MFU spm. 87/2018). The civil servants explained Denmark’s international obligations and legal practice, replying:

“• Children above 6-7 years of age have as a rule obtained their own attachment to Danish society if they have lived legally in Denmark consistently for 6-7 years and have attended day care and/or kindergarten in this country. It will also be considered if they have started school here.
• For older children above the age of 7, including children who entered the country some years after they were born, the starting point is also 6-7 years of consistent legal stay, attending day care and school (…) This means that revoking or refusal of extension of residence permits in practice will not be done (…) already if the children have had 5 years of stay while attending school in this country.”

In clear contrast to these guidelines are the phrases from Immigration Service below from July 2021 when they revoked the permit for the boy and his mother. Immigration Service found that a child who was born in Denmark, had lived all of his 9-year long life here (which they refer to as a "short stay") and had attended day care, kindergarten and school still had not obtained his own attachment to Denmark. By the way, Immigration Service ignored that this child was attending a special class and received special support because he had a developmental disorder, which he would not be able to get in Somalia.

In February 2023 the Immigration Appeals Board concludes:
“On the basis of the information above, the Immigration Board assesses that XX through the length of his stay in Denmark where he has been attending day care institutions and school has achieved his own attachment to Denmark.”

Finally, the board informs that Immigration Service will send a new decision to the boy and his mother – which they have still not received, after almost two months.

Refugees Welcome has written to the Ministry of Integration and asked for an explanation on the discrepancies in the current legal practice for children’s attachment, and also asked Immigration Service to account for existing practice on the next meeting in Asylforum in May.