Denmark’s Supreme Court stops illegal sentencing of refugees for entering with false documents  

Guest post by Michala Clante Bendixen. Michala Clante Bendixen is founder and head of Refugees Welcome Denmark, which provides free legal advice for refugees and works on the political level for refugee rights. She is also the Danish country coordinator for the EU website on integration, Migrant Integration Hub. This post is an adapted version of a blog originally published on Refugees.dk.

A new ruling will have an impact on hundreds of refugees who have been wrongfully sentenced for entering with false documents over the years. 

Violation of international convention 

Exactly one year ago, I wrote that the Danish authorities were violating Article 31 of the 1951 Refugee Convention when they consistently sent refugees to prison and gave them a sentence for entering either with false documents or with another person's documents. The Supreme Court has now established this beyond a shadow of a doubt. 

Article 31 of the Refugee Convention: refugees unlawfully in the country of refuge. 
Paragraph 1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 

In other words, if the person in question is a refugee within the definition of the Convention (and has thus been granted asylum under Section 7(1) of the Aliens Act), the state may not punish the person for having entered illegally. Unfortunately, refugees who obtain other forms of protection than under the Refugee Convention (Section 7(2) or (3)) are not covered by Article 31(1), which the Supreme Court has established in a previous judgment. However, The Danish Institute for Human Rights finds that all refugees should be protected by this article, regardless of status. 

About the case 

The case was presented by the law firm Erbil Kaya, which is not specialised in immigration law, and concerned a young Syrian man who was stopped at the border at Kruså in 2022 with a genuine Italian ID card that was not his. He explained that he wanted to visit his sisters in Denmark and then seek asylum in Germany. He may not have been aware of the Dublin Regulation, which does not make this possible. But the officers wrote in the report that he had said he originally fled from Syria, where he was wanted for deserting the Syrian army. The Supreme Court therefore considered that he had clearly indicated that he was a refugee and wanted to seek asylum. 
  
The fact that he had stayed in a number of other countries on his journey from Syria to Denmark was of no importance to the judges, because they were not safe countries where he had obtained protection. These countries had to be considered transit countries on his escape route. If other safe countries had indeed been relevant, the asylum case itself would have been rejected by the immigration authorities with reference to either the Dublin Regulation or the Safe Third Country provision. 
  
The District Court gave him two weeks of unconditional imprisonment under Section 174 of the Criminal Code, a deportation sentence and a 6-year entry ban, which was later upheld by the Western High Court. After serving his sentence, he was granted asylum under Section 7.1 of the Alien Act, which relates to the 1951 Refugee Convention. He has thus resided legally in Denmark since then. 
  
Many other refugees have applied for asylum immediately at the airport or at the border, and often even pointed out that the passport was fake or not theirs. These cases stand even stronger and should therefore be reversed in light of the new Supreme Court ruling. 

The Attorney General's Note 

For many years, refugees who have entered the country with a false passport or ID document have been convicted under section 171 of the Criminal Code on document forgery, which triggers a 40-day unconditional prison sentence. If they came with another person's genuine passport or other ID document they would be sentenced under section 174 of the Criminal Code on personal forgery, which triggers a 10-14-day prison sentence. If, on the other hand, you do not have any papers on you, you "only" risk a stay in Ellebæk prison as an illegal entrant, and you will in some cases be detained for the entire duration of your asylum case. 
  
The Attorney General issued a note in 2011, which was updated in 2023, stating that if an illegal entrant applies for asylum immediately after entry, the police should await the outcome of the asylum case before prosecuting. However, this has not been done, and on top of that, those in question have been forced to live in a deportation center rather than an accommodation center after serving their sentence while their asylum case was being processed. 

The significance of the wrongful convictions 

Any criminal sentence will forever exclude the person concerned from obtaining Danish citizenship and will also provide a many-year quarantine in relation to obtaining permanent residence. Therefore, these convictions have had an enormous significance, in addition to the humiliating and shocking fact of being sent to Vestre Prison immediately after having applied for asylum and thought themselves safe. As a job seeker, it is also problematic to have a conviction for forgery on your criminal record. 

What now? 

The prosecution should now, on its own initiative, contact those who have been wrongfully convicted over the years and overturn their convictions. They will then be able to apply for permanent residence and citizenship without the restriction of the conviction.  
  
But this may take time, so we encourage all refugees with a 7.1-status and such a conviction in Denmark to contact Refugees Welcome, and we will be happy to help with the case for free. It may also be possible to apply for compensation for wrongful imprisonment, reimbursement of costs of the case, any costs in connection with rejection of citizenship applications, etc. Our email is: kontakt(at)refugeeswelcome.dk 

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