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:

http://www.menneskeret.dk/Nyheder/Kritik+Integrationsministeriet+glemmer+rettigheder (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.