EU rules hollowing out Danish immigration legislation

The Euro­pean Court of Justice’s rul­ing in the Metock case caused severe polit­i­cal out­cry in Den­mark as it chal­lenges Dan­ish immi­gra­tion pol­i­cy. Accord­ing to the rul­ing, with the direc­tive on free move­ment as point of ref­er­ence, a non-com­mu­ni­ty spouse of an EU cit­i­zen can move and reside with that cit­i­zen in the EU with­out hav­ing pre­vi­ous­ly been law­ful­ly a res­i­dent in a mem­ber state. As a con­se­quence, with a short stay in anoth­er mem­ber state, a Dane can now be exempt­ed from the Dan­ish rules like the min­i­mum age of 24, the pres­ence of stronger ties to Den­mark than to the home coun­try of the spouse, finan­cial guar­an­tees, immi­gra­tion test etc. The Dan­ish gov­ern­ment is con­cerned that the direc­tive and the rul­ing under­mine the strict Dan­ish immi­gra­tion legislation.[1]

The Dan­ish inter­pre­ta­tion of the EU rules has until recent­ly lim­it­ed Dan­ish cit­i­zens’ oppor­tu­ni­ties to obtain fam­i­ly reuni­fi­ca­tion, but with the Metock rul­ing it has now been made clear that Dan­ish demands were incom­pat­i­ble to the free­dom of move­ment directive.[2]

A report from the Dan­ish Ombuds­man con­clud­ed that the Dan­ish Immi­gra­tion Ser­vice has to a con­sid­er­able extent refrained from admin­is­ter­ing the direc­tive appro­pri­ate­ly and has failed to inform the cit­i­zens about their rights to fam­i­ly reuni­fi­ca­tion through the EU rules on free move­ment.

The only way to ensure the strict Dan­ish immi­gra­tion leg­is­la­tion is to amend the direc­tive and the gov­ern­ment has expressed opti­mism about reach­ing this solu­tion although it requires the sup­port of the remain­ing mem­ber states.

In a polit­i­cal agree­ment between the gov­ern­ment and its sup­port­ing par­ty, the Dan­ish People’s Par­ty, the inter­pre­ta­tion of the direc­tive has been changed and it has been accept­ed to extend Dan­ish cit­i­zens’ pos­si­bil­i­ty to achieve fam­i­ly reuni­fi­ca­tion when using the free­dom of move­ment direc­tive. At the same time, the gov­ern­ment has promised to pave the way towards a change of the direc­tive by refer­ring to a pos­si­ble mis­use of the direc­tive.

This pos­si­bil­i­ty was, how­ev­er, pro­vi­sion­al­ly turned down by the Euro­pean Com­mis­sion in a report on the direc­tive which was pub­lished in the begin­ning of Decem­ber 2008. The Com­mis­sion explained that there was no proof of mis­use of the direc­tive and there­fore no need to ini­ti­ate changes. Fur­ther­more, Den­mark was ranked as the third worst mem­ber state in imple­ment­ing the directive.[3] Nev­er­the­less, José Manuel Bar­roso came to the res­cue of the Dan­ish Prime Min­is­ter, Anders Fogh Ras­mussen, when stat­ing that he was will­ing to con­sid­er amend­ments if mem­ber states can prove the exis­tence of sig­nif­i­cant prob­lems regard­ing ille­gal immi­gra­tion. But even if the direc­tive was to be amend­ed this would not change the prece­dence and legal prac­tice of the Euro­pean Court of Jus­tice. [4]

The Tunisian case

In Decem­ber 2008 the Dan­ish par­lia­ment, with a tiny major­i­ty, passed a con­tro­ver­sial law tight­en­ing the demands on for­eign­ers under the so-called ‘tol­er­at­ed stay’. Peo­ple under ‘tol­er­at­ed stay’ are now oblig­ed to live in a refugee camp, and report them­selves to the police every day. The tight­en­ing came after a polit­i­cal strug­gle over two Tunisians sus­pect­ed of ter­ror­ism.

In Feb­ru­ary 2008, two Tunisian nation­als were arrest­ed sus­pect­ed of plot­ting to kill car­toon­ist Kurt West­er­gaard. Westergaard’s con­tro­ver­sial car­toon of the prophet Mohammed with a bomb in his tur­ban was one of the 12 images that caused the Car­toon Cri­sis in 2005.

The Dan­ish Min­is­ter for Refugee, Immi­gra­tion & Inte­gra­tion Affairs, Birthe Rønn Horn­bech, decid­ed to admin­is­tra­tive­ly deport the two Tunisians with­out a tri­al. The admin­is­tra­tive depor­ta­tions of peo­ple pos­ing a threat to state secu­ri­ty are in accor­dance with Dan­ish anti-ter­ror law from 2002. They were, how­ev­er, allowed to remain in Den­mark under ‘tol­er­at­ed stay’ due to a risk of fac­ing per­se­cu­tion or ill-treat­ment in their home coun­try. While one of the Tunisians left Den­mark, the oth­er lived with his fam­i­ly only ten min­utes from the cartoonist’s home. This caused an intense polit­i­cal debate and led to the Dan­ish People’s Par­ty demand the pass­ing of a law aim­ing at tight­en­ing the con­trol over the Tunisian.

The Dan­ish Insti­tute for Human Rights crit­i­cized the polit­i­cal ini­tia­tive and found it inap­pro­pri­ate to imple­ment a law change which is direct­ed at one sin­gle per­son and also warned that the new duty of noti­fi­ca­tion at the police could lead to infringe­ment of the rights of individuals.[5] The law also received strong crit­i­cism from the UN High Com­mis­sion­er for Refugees (UNHCR), stat­ing that the unwant­ed immi­grants on ‘tol­er­at­ed stay’ risk being pun­ished unrea­son­ably hard and twice for the same crim­i­nal offence. UNHCR is of the opin­ion that immi­grants should receive the same treat­ment as Danes who are pos­ing a threat to nation­al security.[6]

Pirates off the coast of Somalia

Increas­ing pirate activ­i­ty off the coast of Soma­lia became a con­cern in Den­mark because of its large mar­itime inter­ests. Pirate action against Dan­ish-owned ships “Georg Maer­sk” and “CEC Future” raised con­sid­er­able con­cerns about the safe­ty of ship­ping in the Gulf of Aden.[7] One of Denmark’s largest com­pa­nies, A.P. Møller Mærsk, was forced to reroute its ships around the Cape of Good Hope to avoid pira­cy in the Gulf of Aden.[8] Mærsk also found itself cut­ting staff as a fall in ship­ping vol­umes forced cor­po­rate reorganization.[9] Increased inter­na­tion­al coop­er­a­tion in response to such pira­cy includes the inter­na­tion­al Task Force 150 and the launch­ing of the first ever EU anti-pira­cy secu­ri­ty oper­a­tion (EU NAVFOR) off the coast of Soma­lia in Decem­ber 2009.[10] How­ev­er, because of its opt-outs from EU secu­ri­ty and defence pol­i­cy, the Dan­ish navy is unable to join the 9‑nation EU force help­ing to pro­tect Dan­ish ship­ping despite the pres­ence of “HMS Absa­lon”, a Dan­ish war­ship, in Task Force 150.[11]




[1] Mandag Mor­gen, no. 27: Fogs kamp mod opholds­di­rek­tivet kan give bagslag, 18 August 2008.
[2] Mandag Mor­gen, no.28: Syv års udlænges­tramninger kan være spildt arbe­jde, 25 August 2008.
[3] Mandag Mor­gen, no. 43: EU slukker lyset for dan­sk udlændingeaf­tale, 8 Decem­ber 2008.
[4] Poli­tiken: Nyhed­s­analyse: Bar­rosos poli­tiske jule­gave til Fogh, 21 Decem­ber 2008.
[5] The Dan­ish Insti­tute for Human Rights: Inte­gra­tions­min­is­teri­et glem­mer ret­tighed­er, avail­able at: (last access: 26 Jan­u­ary 2008).
[6] Ritzaus Bureau: FN kri­tis­er­er tune­serlov, 27 Novem­ber 2008.
[7] Copen­hagen Post: ‘The crew of a Maer­sk con­tain­er ship spot­ted pos­si­ble pirate ves­sels fol­low­ing them’, 8 Octo­ber 2008; Copen­hagen Post: ‘Com­pa­ny pays pirates to release ship’, 16 Jan­u­ary 2009.
[8] Copen­hagen Post: ‘Pirates force Maer­sk off course’, 21 Novem­ber 2008.
[9] Robert Wright: ‘Maer­sk reports fall in vol­umes on Asia-Europe route’, Finan­cial Times, 13 Novem­ber 2008; Dami­an Brett: ‘Maer­sk cuts 100 jobs in HQ shake up’, Inter­na­tion­al Freight­ing Week­ly, 21 Jan­u­ary 2009.
[10] BBC News: ‘EU force to fight Soma­li pirates’, 2 Octo­ber 2008.
[11] Copen­hagen Post: ‘Opt-out puts Navy on side­lines in pirate hunt’, 15 Jan­u­ary 2009.