Denmark in breach of convention when refugees are punished for entering on false papers

A conviction for seeking asylum with a false passport can reduce the chance of asylum and permanently exclude the person from Danish citizenship, in violation of the Refugee Convention

Imprisonment for forgery and payment of court costs, deportation order, entry ban, stay in prison while the asylum case is processed, and forever exclusion from permanent residence and citizenship. It could be the consequences of being caught with a fake passport at the border with Denmark. If, on the other hand, you do not have any papers on you, you "only" risk a stay in Ellebæk prison as an illegal entry.
 
Refugees are in fact protected from punishment for presenting false documents under the Refugee Convention, but the prosecution ignores the Attorney General's guidelines. Refugees Welcome has raised the issue over many years, and the Danish newspaper Information described the illegal practice in 2010, and another case in 2020, but it has only gotten worse. Information described a case in 2020, and took up the issue again this year.

A criminal offense to enter with a false passport

As a starting point, it is of course a criminal offense to impersonate someone else. This will fall under Section 171 of the Danish Criminal Code on forgery of documents or Section 174 on falsification of personnel, which typically trigger 10 and 40 days in prison respectively. But circumstances can be decisive, and there are exceptions. The Danish authorities have nevertheless for decades punished asylum seekers for presenting false documents upon entry, and many refugees have therefore started their stay in Denmark with 40 days in Vestre Prison and a bill of 3,000 euros for the costs of the case. But the consequences have become far worse today due to other strictures in the Aliens Act, namely the requirements for permanent residence and citizenship. At the same time, a number of immigration lawyers and DRC Danish Refugee Council report that they have seen an increase in these cases.

Article 31 of the UN Refugee Convention states:

"1. Refugees who come directly from an area where their life or freedom were threatened in the sense stated in Article 1*, and who without permission enter or are within the territory of the contracting states, shall not be liable to punishment in these states for illegal entry or stay, provided that they contact the authorities without delay and demonstrate that they had reasonable grounds for their illegal entry or presence."

*That is persons who fall under the definition of the convention and thus must be recognized as refugees under the Danish Aliens Act section 7.1, ed.

In short, recognized refugees may use false passports to enter. But they must come "directly" from the area where they are persecuted, which is usually interpreted as not registered as asylum seekers or having obtained protection in other countries. And they must apply for asylum "without delay", which has been interpreted slightly differently over time by the individual police officer, mostly considering whether the person applied for asylum immediately when they were stopped. After all, Denmark has sent a clear signal to the world that refugees are not welcome here, so it is rarely an active choice to seek asylum at the Danish border, but more often a forced consequence of being stopped. Perhaps you were on your way to your family in Sweden, and therefore tried to get through with your fake passport?

Why use a fake passport?

Almost all asylum seekers come from countries where it is virtually impossible to get a visa to Denmark and thus enter legally (country group 5 is currently: Afghanistan, Eritrea, Iraq, Pakistan, Russia, Somalia, Syria). The placement in country groups is precisely an assessment of how big the risk is that people from the country in question will apply for asylum when they arrive. In other words: if you come from a dangerous country with a good chance of getting asylum, you will not be allowed to come to Denmark. Therefore, the vast majority of asylum seekers come here without legal documents, and some with false documents for which they have paid smugglers. It is the only way to get on board a plane and thus avoid the life-threatening trip across the sea in a sinking boat. But even those who have already survived the dangerous trip across the sea often have to obtain false papers to get further into Europe, as very few – with good reason – want to apply for asylum in Italy or Greece.
 
Another group of people who are affected are victims of human trafficking. They are often forced by the people who exploit them to use false passports but are nevertheless punished for it – and at the same time have no chance of getting a residence permit, even if they testify against the trafficker.

The Attorney General's guidelines

In May 2011, the Danish Attorney General laid down guidelines in the area because it had emerged that the police did not have the same procedure at the airport as at the border with Germany. According to the guidelines, which have been updated in 2023, the police must not initiate prosecution against a foreigner who enters Denmark on false identity papers, if the foreigner applies for asylum immediately after his entry, and the foreigner is granted a residence permit as a convention refugee (i.e. covered by the UN Refugee Convention).
 
On the other hand, the police must, as a general rule, initiate criminal prosecution if it is a foreigner who similarly enters Denmark on false identity papers and applies for asylum immediately afterwards, but either: 
1) Is granted a residence permit as a refugee with protection status (covered by protection in other international conventions, but not by the UN Refugee Convention).
2) Transferred to another country pursuant to the Dublin Regulation. 
3) Refusal of a residence permit as a refugee is reported. 
The police must only decide whether to prosecute after the asylum case has been decided in Denmark. The guidelines also apply to children.
 
Here it must be explained that there are three different types of asylum status in Denmark, and only one (under section 7.1) is covered by the Refugee Convention. The other two (sections 7.2 and 7.3) are called protection status and refer to other conventions which do not contain articles regarding fake papers. According to the Danish Institute for Human Rights, all refugees, regardless of status, should be treated equally on this point, read more about this in the review from 2012 (from pages 21-24) (link). The institute also recommends a human rights assessment of prosecuting applicants who must be transferred to another country under the Dublin rules, as well as in certain cases unaccompanied minors.

The recommendations are not followed

But the state prosecution does not follow these guidelines. The Attorney General informed the newspaper Information in April this year that in the period 2019-2023 a total of 457 charges were brought and 96 sentences handed down. Many are appointed a lawyer who is not familiar with asylum law, and who therefore recommends that the client plead guilty instead of insisting that the case should be postponed until the asylum case is decided. The situation is therefore unreasonable and illogical: the person is accused and judged before knowing whether he/she will be granted asylum.
 
Furthermore, you are also a refugee, even if you are granted asylum under a section other than §7.1, as the Institute for Human Rights emphasizes, and therefore all recognized refugees should be exempt from punishment. And finally, the damage is done when and if it turns out that the person was in fact a refugee under Section 7.1 – the person already served time and got a stain on his criminal record and a debt to the state.
 
It requires the help of a lawyer to have the expulsion order lifted and the criminal proceedings resumed, it is not something that happens automatically. The lucky ones have an immigration lawyer who does this pro bono for their client, but some get asylum already in the first instance, and then they have never had a lawyer apart from the one who was appointed in the criminal case – and who probably did not know about the article 31 of the Refugee Convention, since he/she did not have the case adjourned.
 
It seems obvious that you should not start a criminal case before you have settled the asylum case, as the Attorney General recommends. And that the same rights should be introduced for everyone who is granted asylum – regardless of the section under which they are granted it. Furthermore, it should never be decisive when exactly you have applied for asylum – whether it happens before you are checked or after, and all asylum seekers should have the same access to information and counseling in their case.

The new consequences

In the past, it was bad enough to get a conviction, go to prison and have to pay the costs of the case, as well as start your integration program with a tainted criminal record. But other strictures regarding foreigners have made the situation far worse for those affected. Any conviction automatically leads to a deportation order and an entry ban when you do not have a strong connection to Denmark. You therefore legally move into the category of "persons with a deportation sentence" even before the asylum case has been processed.
 
This means that you must physically continue to be in custody after serving your sentence, typically in Ellebæk – with a view to deportation – while the asylum case is pending. And in these cases, the normal upper limit of 18 months for confinement in Ellebæk does not apply. Women are kept in custody in Jyderup prison, as Ellebæk does not have a section for women sentenced to deportation. In both cases, there is an almost total restriction of personal freedom and access to information – including very limited access to seek advice and information for use in one's own asylum case, e.g. with NGOs such as Refugees Welcome, DRC Danish Refugee Council or LBGT Asylum. Furthermore, a stay in prison has a clearly negative effect on the mental health of refugees, and a large number are already suffering from trauma after war and torture. A lack of advice and information, as well as poor mental health, increases the risk of being refused asylum, as it will be more difficult for you to concentrate and answer clearly, and you may be unaware of important aspects of your own case.

Some city court judges will allow persons with an obvious chance for asylum (typically Syrians) to spend the waiting time in a deportation centre instead of Ellebæk. City courts should not ba part of the asylum assessment, and deportation centres are designed to isolate people and make them leave.
 
But even if you are lucky enough to get asylum, the case can haunt you forever. A sentence of 40 days gives 12 years of quarantine, if one day you can meet the criteria for permanent residence but presenting false identity papers will usually bar the person forever, which most people don't realize. Danish citizenship will also be out of reach, unless the Citizenship Committee in Parliament chooses to grant an individual dispensation for it, as any conviction usually means exclusion forever – and here you have a duty to disclose all convictions, even if they are deleted from the criminal record after 5 years. The newspaper Information has described a case about an Iraqi man who 16 years ago received protection status in Denmark, and today meets the requirements for Danish citizenship – there is just one problem: he entered with a fake passport back then. In Refugees Welcome we have also come across similar cases in our counseling.

We recommend:

• That any prosecution in connection with false documents or another person's passport awaits the final outcome of a pending asylum case.

• That the interpretation of "entered directly from" and "approached without delay" will include everyone who has not already obtained a residence permit in another safe country and who has clearly applied for asylum, even if it did not happen immediately.

• That any recognition as a refugee, regardless of status, means a waiver of the charge.

• That a judgment in connection with documents used on entry will not have consequences for a refugee's opportunities to obtain permanent residence or citizenship.