Ukrainians are not granted asylum due to military service or general risk

Three test cases from the Refugee Appeals Board establish that neither the general conditions in Ukraine nor the penalty for desertion trigger asylum in Denmark

Photo: Creative Commons / Shamil Khakirov

Approximately 53,000 Ukrainians have entered Denmark since Russia's attack and have had their applications processed under the Special Act. Almost all have been granted permission, but approximately 1,000 have been rejected, most often because they do not meet the requirement to have lived in Ukraine up to the start of the war. Just over 600 have simultaneously or subsequently applied for asylum, and these cases have been put on hold since the start of the war, because authorities wanted to await developments in the war.
 
The suspension was lifted in October 2023, and the Immigration Service has processed the less than 100 cases where the applicant had not been granted residence under the Special Act and rejected them. Asylum applications for persons covered by the Special Act are still suspended by the Minister for Immigration and Integration – something that DRC and Refugees Welcome warned against in our consultation response when the parliament introduced this option last year.
 
The first decisions in three test cases have just come from the second and final instance: the Refugee Appeals Board.
 
All three test cases concern Ukrainian men who fear being called up for military service in their home country. One has already served in the military and is now in the reserve. The other two have not. They come from Kyiv (the capital, central Ukraine), Kharkiv (northeastern Ukraine) and Zarkapattia (western Ukraine), respectively. The applicants had no other conflicts with the Ukrainian authorities.
 
The Refugee Appeals Board upholds all three refusals, agreeing with the Immigration Service in the following:
 
1) Being drafted for military service is not in itself a ground for asylum, unless it involves acts of war condemned by the international community (under Danish §7.1 or §7.2). Ukraine is defending itself against an attack by another country, so it is completely legal to call up its citizens for military service.

2) In certain cases, it may trigger asylum if performing military service is against a person's religion or beliefs, but in the cases in question this has not been decisive.
 
3) The three individuals all face a prison sentence for evading or deserting from the military, but the length of the sentence or the conditions in the prisons are not considered in themselves to be grounds for asylum, although it is acknowledged that the conditions in Ukraine's prisons are inferior to Danish standards.

4) The general risk of being subjected to inhuman treatment due to the war has also been assessed (according to Danish §7.3). In Kyiv and Zarkapattia, the risk is not considered to be high enough to trigger a residence permit, but it is in Kharkov. Here, however, reference is made to the fact that the western and central parts of the country are relatively safe areas, and therefore constitute a so-called "internal flight alternative".

The new decisions will not come as a surprise to legal experts, and we previously explained the asylum law conditions for Russians and Ukrainians three years ago, read more here. Russians who fear forced conscription have a stronger asylum motive than Ukrainians, but the Danish authorities have also refused the Russian cases, unless there were other decisive factors at the same time.

One of the reasons why the EU activated the Temporary Protection Directive, and why Denmark quickly adopted a special law with similar content, was indeed that the displaced Ukrainians would not be able to meet the current requirements for asylum. Another reason was to avoid the long waiting times and temporary accommodation that apply in the asylum system.