FN-flygtningehøjkommissariatets svar til MS om at integrationsloven diskriminerer asylmodtagerer i strid med FN-flygtningekonventionen

offentliggjort i Danmark ca 12/8 og gengivet her nedenfor i en scannet udgave:

United Nations

High Commissioner for Refugees

Ynglingsgatan 14, 6 113 47 Stockholm, Sweden

Telephone + 46 8 457 4880, Email @unhcr.ch

Our code: ROBN/0306/98

7 august 1998

Dear Messrs. Friis Bach and Førde.

Re.,: Recent Changes to Danish Legislation concerning Refugees and Integration

UNHCR wishes to express its appreciation for the opportunity given by the Danish nongovernmental organisations to comment on the legislative amendments which were passed by the Danish Parliament on 26 June 1998.

You have raised certain apects of the new Law on the integration of foreigners in Denmark (hereinafter Integration Law), introduced by the Bill no. L 60. These particular aspects concern Denmark's application of the 1951 Convention relating to the Status of Refugees and its 1 967 Protocol.

We would note that UNHCR has followed closely the drafting of Bills nos. L 59 and L 60 and was awaiting the opportunity to share our views and expertise with the Danish authorities before the amendments were adopted. However, as you are aware, this did not come to pass. In general, UNHCR would wish to state that the newly established three-year integration programme is a very positive and realistic step in addressing the challenges faced by many refugees in attempting to integrate successfully into Danish society.

Social Assistance

In your letter, you note that according to Chapter 5, § 27 of the new Integration Law, refugees (along with other foreign nationals participating in the integration programmel will receive 80 per cent of the social assistance normally granted. This relates to the application of Article 23 of the 1 951 Convention, to which Denmark has not made any reservation. This Article states:

The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.

Regardless of the three-year time limitation during which the social assistance is reduced, the 20 per cent difference means that refugees will simply not be treated the same as nationals during that time period. UNHCR would therefore have to conclude that the lower social assistance to be given to refugees is indeed not in accordance with Article 23 of the 1 951 Convention.

We would agree with you that the parallel drawn by the Government to the situation of students is not appropriate. Danish university students choose their situation voluntarily, and may give up their studies at any moment. They are likely to have a variety of social networks to which they can turn for support. Refugees do not choose to flee their countries, nor do they necessarily have such networks that can provide adequate compensation for ]ost social assistance. Moreover, it is exactly at the very earliest stages of their arrival and integration, often from situations of privation and trauma, that refugees need maximum support.

Article 23 aims at the equal treatment of refugees with nationals as such and not with particularly selected sub-categories of nationals. Article 23 outlines a minimum standard of treatment. The fact that the refugees will be attending an integration programme is an added benefit designed by the Danish authorities for a variety of domestic social reasons, but it should not lead to the social assistance being decreased below that minimum standard.

More generally, we would be concerned that the reduction in social assistance gives a negative signal towards and about the refugee community. Both the refugee recipients and the broader Danish public may perceive the reduction as somehow reffecting the refugee community's believed worth to Danish society. Such a signal, however unfounded, may well risk undermining the positive intentions of the proposed integration programme.

With regard to the practical implementation of the newly enacted legislation, we take note that, if refugees or their spouses do not participate adequately in the programmer their social assistance will be decreased by a further 20 per cent or withdrawn.

According to Chapter 5, §§ 30-31 of the new Integration Law, the test will be whether this fack of participation is 'without reasonable grounds." UNHCR counts on the continued engagement of the Danish non-governmental organisations and other civil society institutions in ensuring respect for the basic rights of refugees, by monitoring carefully the implementation of these particular provisions, in particular how the local authorities will interprete the phrase 'without reasonable grounds.' We hope that such decisions will be taken, with proper recognition of the problems that may be faced by individual refugees, especially those befonging to vulnerable groups, such as women, children and torture survivors. In particular, women arriving directly from traditional societies may be required to overcome very real family or cultural obstacies in order to participate in public activities, such as the proposed integration programme.

Relocation during the 3-year Integration Programme

Chapter 4, § 18 of the new Integration Law regulates changes in location during the integration programme. The language leaves room for the refugee to move to another municipality and continue pursuing the programmer 'if the local authority in that municipality agrees to take over responsibility for the integration programme.' In the second paragraph of the same section, the test for the new municipality's accepting its responsibility is 'if the move is of significant importance to the foreigner's on-going integration process or if there are special personal circumstances which generalia support it.'

However, an unauthorized change in a refugee's location may lead to a refusal to be allowed to enter the integration programme. This is contained in Chapter 5, § 32, para. 1 of the new Integration Law. According to the same paragraph, if the refugee is not permitted to enter the integration programme of his or her new community, he or she also risks being refused social assistance or having it reduced.

Moreover, a refusal to be allowed to enter the new municipality's integration programme can have additional and considerable' consequences. Successful participation is a pre-requisite for refugees to be considered for permanent residency after their initial stay. This is contained in Chapter 1, § 1 1, new paras. 3 & 5.1, of the Danish Aliens' Law, changed through Bill no. L 59.

In particular, we note with concern that it is uncertain what recourse those persons rejected in their application for permanent residence permits on the grounds of nonparticipation in the integration program'me would have. There is, for example, no indication on how long it will take before the refugee is granted a permanent residence permit if he or she does not participate successfully in the integration programme. The inability to participate successfully in an integration programme should not be an automatic bar to permanent residency. Flexibility in the application of the legislation as amended is essential.

While all of these implications are very serious indeed, we would not necessarily agree with your analysis that the legislation as amended represents a violation of Article 26 of the 1 951 Convention. Article 26 of the 1 951 Convention states:

Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generals in the same circumstances.

Here we cannot conclude that the new Integration Law violates Article 26, for two reasons. First, Chapter 1, § 2 ciearly equates refugees with other foreign nationals generalia. According to your analysis, the violation arises on account of the fact that the treatment differs from that provided to nationals of EU Member States. We would rather, in accordance with the language contained in Article 26, compare the treatment to that meted out to foreign nationals in general in Denmark. We would therefore agree with the explanation the Government has put forward. Article 26 of the 1951 Convention addresses minimum standards of treatment, and cannot be said to preciude preferential standards for certain other sub-categories of foreign nationals.

Second, it is not ciear to us that the new legislation infringes on the right of refugees to choose their place of residence and to move freely to such an extent that it constitutes a violation of Article 26 of the 1951 Convention, especially in light of the fact that

Chapter 4, § 18 of the new Integration Law leaves open the possibility for refugees (and other non-nationals) to move from municipality to municipality depending on their particular circumstances.

Rather, in terms of Article 26, the more appropriate question will be how the new legislation is actually implemented. Again, UNHCR hopes that the Danish nongovernmental organisations and other concerned institutions will actively monitor how open and accessible such decision-making will be to the special needs of refugees, with our support and participation as appropriate and necessary.

We hope that the above analysis is useful to your deliberations and also that you do not hesitate to contact us again if you seek any further clarifications.

With best regards,

Yours sincerely,

Kallu Kalumiya,

Regional Representative

for the Baltic & Nordic Countries