On 16 November 2023, the Council of Europe Commissioner for Human Rights, Dunja Mijatović, published  the report on her visit to Denmark in May-June 2023, with recommendations on the rights of refugees, asylum seekers and migrants and the rights of persons with disabilities.

There have been several positive developments in the area of asylum, particularly with regard to those fleeing Ukraine, and the protection of women and girls from Afghanistan based solely on their gender. However, the Commissioner considers that the recent paradigm shift in Danish refugee policy towards temporary protection and return, rather than integration, presents a number of human rights risks. The authorities should refocus on providing greater certainty and security to refugees and other protection holders.

The Commissioner also urged the authorities to abandon plans to externalise aspects of the asylum process to a third country, considering doubts about their compatibility with international human rights standards. “Externalisation plans may set a troubling precedent in shifting responsibility within the global system of international protection”, she emphasises. Instead, the authorities should redirect and step up focus on greater and fairer responsibility-sharing among European states and globally.

Following the intensification of measures aimed at ensuring that rejected asylum seekers and other foreigners without a residence permit cooperate to ensure their own return, the Commissioner found particularly problematic the fact that individuals who cannot be returned, including families with children, may find their lives suspended and left in limbo for years. Considering the impact on mental health and wellbeing, as well as the potential to have life-long negative consequences, she encourages the authorities to reconsider the use of return centres. Regarding administrative detention of rejected asylum seekers and other migrants, the Commissioner called on the authorities to ensure that alternative measures are prioritised, and that strict, prison-like rules and regimes are not implemented in this context. As regards integration, she called for further steps to be taken to facilitate family reunification for protection holders, including for temporary subsidiary protection status holders and older children. She also underlines the rising number of stateless persons, and invites the authorities to facilitate access to citizenship for children and young people who were born or grew up in Denmark.

The Commissioner called on the authorities to foster a structural approach to improving the situation of persons with disabilities, in particular through the introduction of a general legal obligation for reasonable accommodation, as well as a comprehensive national action plan on persons with disabilities. She emphasised the need to address challenges such as the exposure to violence and abuse, including sexual abuse, in residential institutions; the continuing use of larger residential institutions; the limited opportunities for certain persons with disabilities to choose their living arrangements; and the reported increasing number of children and young people with severe mental health conditions being placed in closed care institutions, as well as the conditions within those institutions.

Noting the progress made regarding legal capacity and the right to vote, including the introduction of a system of partial guardianship, the Commissioner considered that there is a need to increase focus on supported decision-making. She urged the authorities to abolish the system of full guardianship and to take steps to foster greater take-up of partial guardianship. In addition, she calls for citizenship acquisition procedures to be fully accessible to persons with disabilities and include provisions of reasonable accommodation.

While recognising efforts made by the authorities in this area, the Commissioner urged the authorities to drastically reduce the use of all forms of coercion, and to end recourse to any coercive measure that may amount to ill-treatment, including in particular the use of belt restraints for extended periods of time.

“The Memorandum of Understanding (MoU) between Italy and Albania on disembarkation and the processing of asylum applications, concluded last week, raises several human rights concerns and adds to a worrying European trend towards the externalisation of asylum responsibilities,” said the Commissioner Mijatović.

“The MoU raises a range of important questions on the impact that its implementation would have for the human rights of refugees, asylum seekers and migrants. These relate, among others, to timely disembarkation, impact on search and rescue operations, fairness of asylum procedures, identification of vulnerable persons, the possibility of automatic detention without an adequate judicial review, detention conditions, access to legal aid, and effective remedies. The MoU creates an ad hoc extra-territorial asylum regime characterised by many legal ambiguities. In practice, the lack of legal certainty will likely undermine crucial human rights safeguards and accountability for violations, resulting in differential treatment between those whose asylum applications will be examined in Albania and those for whom this will happen in Italy.

The MoU is indicative of a wider drive by Council of Europe member states to pursue various models of externalising asylum as a potential ‘quick fix’ to the complex challenges posed by the arrival of refugees, asylum seekers and migrants. However, externalisation measures significantly increase the risk of exposing refugees, asylum seekers and migrants to human rights violations. The shifting of responsibility across borders by some states also incentivises others to do the same, which risks creating a domino effect that could undermine the European and global system of international protection.   

Ensuring that asylum can be claimed and assessed on member states’ own territories remains a cornerstone of a well-functioning, human rights compliant system that provides protection to those who need it. It is therefore important that member states continue to focus their energy on improving the efficiency and effectiveness of their domestic asylum and reception systems, and that they do not allow the ongoing discussion about externalisation to divert much-needed resources and attention away from this. Similarly, it is crucial that member states ensure that international co-operation efforts prioritise the creation of safe and legal pathways that allow individuals to seek protection in Europe without resorting to dangerous and irregular migration routes.”