Denmark’s decision on Syrian refugees in breach of ECHR, EU’s assessment and UNHCR’s thresholds

Denmark’s decision on Syrian refugees in breach of ECHR, EU’s assessment and UNHCR’s thresholds

 

Denmark’s decision to withdraw protection for Syrian refugees from Damascus and Damascus countryside is in direct conflict with the official position of the European Commission and in breach of the European Convention on Human Rights, as well as the UNHCR’s protection thresholds. In direct correspondence with SACD, the Danish Minister of Immigration and Integration, Mattias Tesfaye, has failed to adequately justify this decision or answer some of the key questions which have placed Denmark among the countries which are exerting pressure on Syrian refugees to return to what is an unsafe, and potentially deadly, situation in Assad-held areas of Syria. Instead, according to our information, the Danish authorities are considering to extend the assessment of “security conditions significantly improving to allow for return,” which was used to deny protection to Syrian refugees from Damascus and Damascus Countryside, to areas of Hasakeh and Aleppo.

SACD’s warnings unheeded

Ever since the first indication that the government of Denmark may pass such decision, the Syrian Association for Citizens’ Dignity has worked to engage with Danish authorities and other relevant institutions to prevent what has become a dangerous precedent, which may endanger countless Syrians who sought refuge in third countries from the conflict and repression they faced in Syria. Even before that, we addressed the EU bodies, of which Denmark is an active member, providing documentation and evidence that Syrian refugees who are forced to return to Assad-held areas in Syria face detention, forced disappearance, torture, death, forced conscription, extortion and harassment. Since July 2020, we held meetings with envoys, worked with international human rights groups and issued public documents to demonstrate the flawed and contradictory nature of the Danish Refugee Council’s assessment that Damascus and Damascus Countryside are safe for return of Syrian refugees. Ultimately, in April this year we addressed the Minister of Immigration and Integration of Denmark, Minister of Foreign Affairs and the Refugee Appeals Board directly, through a submission that firmly establishes how the Denmark’s decision is in direct breach of the Article 3 of the ECHR, the UNHCR protection thresholds and Denmark’s own previous statements on the reality in Assad-held areas.

In the submission, supported by two annexes documenting the current reality in Assad-held areas, we asserted that the conclusions in Country of Origin (COI) reports by the Danish Ministry of Immigration and Integration and the Danish Immigration Service dating back to 2018, and most recently repeated in an October 2020 that “the security situation in Damascus and rural Damascus has improved significantly” were incorrect, as was, accordingly, the Danish Refugee Appeals Board (RAB) finding that “the situation in Damascus had changed to such effect that people did not risk ill treatment contrary to Article 3 of the European Convention on Human Rights solely on account of their presence.”

These reports and the subsequent assessment used by the Refugee Appeals Board (RAB), clearly failed to document and relay the real threat facing refugees if they were to return; they failed to illustrate the ongoing insecurity and repression endured by individuals in these areas now; the RAB assessment included deep contradictions between the information it contains and the final assessment it makes; they failed to seriously take into account credible information from organisations such as Syrian Association for Citizen’s Dignity and the Syrian Network for Human Rights, despite claiming to have included our reports as “background material”.

While the Appeals Boards decision cites Danish law, namely the Aliens Act, section 7, subsection 3, as the basis for removing protection for individual Syrians, SACD clearly established that such a decision is indeed in direct breach of the European Convention on Human Rights, Article 3, which states that ‘no one shall be subjected to torture nor to inhuman or degrading treatment or punishment.’ We reminded Minister Tesfaye that the European Court of Human Rights held that the fundamental nature of Article 3 is in holding that states cannot deport or extradite individuals who might be subjected to torture, inhuman or degrading treatment or punishment, in the recipient state and that this provision prohibits the extradition of a person to a foreign state if they are likely to be subjected there to torture. It is well documented that the situation in Damascus and Damascus countryside, as well as the rest of Syria, is absolutely not safe for refugees to return without being exposed to a risk of arbitrary arrest, torture and inhumane treatment and any extradition or transfer of Syrian refugees to Damascus or any other part of Syria, particularly areas held by the Syrian regime, would constitute a breach of the Article 3 of ECHR. There can be no individual assessment that would exclude a particular Syrian refugee from any area in the country, including Damascus, from this threat.

The threat facing those who have fled abroad from Syria is infinitely higher than that of those who remained behind. This threat is best illustrated in the statement of Syrian regime Air Force Intelligence Head Jamil al-Hassan, who explicitly said that the regime only wants loyalists in Syria: “A Syria with 10 million trustworthy people obedient to the leadership is better than a Syria with 30 million vandals. After eight years, Syria will not accept the presence of cancerous cells and they will be removed completely.”

Paradoxically, the Danish Appeals Board’s governing body has itself highlighted four times since June 2019 the need to apply the principle of caution to decisions relating to the removal of Syrians protected status and find in the favour of the claimant if doubt exists. The number of removals to date suggests this caution has not been applied.

ECHO’s position confirms Denmark’s breach

 Denmark’s decision placed the country in a unique position globally. To date, no governments have formally concluded that Syria is safe for the purposes of removing protection for individuals on a large scale. This has yet to occur in the region, even among Syrian Regime’s allies like Lebanon, and runs counter to the shared EU positions documented in the recent BC5 readout and FM statements and an explicit confirmation SACD received from European Commission’s Directorate General for Civil Protection and Humanitarian Aid Operations (ECHO). In a message to SACD, a senior official from ECHO explicitly states that “The EU has repeatedly stressed that any refugee return to Syria must be voluntary, safe, dignified and sustainable, and in accordance with international law, including the principle of non-refoulement. The EU’s line with respect to return of refugees has not changed. Returnees continue to face numerous obstacles and threats such as forced conscription, indiscriminate detention, forced disappearances, torture, physical and sexual violence, among others.”

 Additionally, the decision to withdraw protection from Syrian refugees runs counter to Denmark’s own foreign policy relating to Syria, regarding the dangerous nature of the security state and the need for accountability and justice for those detained in Syria prisons, a practice and file which continues without resolution.

What is extremely worrying for all displaced Syrians is the impact of this decision of Danish authorities, which may be seen as a precedent by other countries in the EU and elsewhere, which currently offer protection to Syrian refugees. Worryingly, the Danish Immigrations Service may be considering to widen their position to other areas of Syria, including Hasakeh and Aleppo. Again, this runs contrary to all available evidence of the continuing repression facing Syrians in areas under the control of the Syrian regime.

In view of this, SACD asked the Ministry of Immigration and Integration Affairs for a response to the following questions:

  • What is the reasoning behind its assessment to not renew or withdraw protection for the individual Syrian refugees from Damascus and Rural Damascus?
  • What is the criteria used to determine that in these cases of refugees from Damascus and Rural Damascus withdrawal of protection and their return to Syria would not breach Article 3 of the ECHR?
  • What is the justification for continuing to utilize the removal of protection pursuant to Aliens Act, section 7, subsection 3, as a justification for these decisions?
  • Will the Ministry of Immigration reconsider its assessment in view of the decision of the European Court of Justice from 19 November, which determined, explicitly in the context of Syria, that people fleeing compulsory military service in Syria can claim refugee status in the EU?
  • How did you decide which topic, subtopics and research questions need to be addressed when creating the TOR for the COI reports on Damascus, Rural Damascus, and subsequent geographical areas? Why doesn’t this cover the breadth of security concerns faced by Syrians inside Syria, or on return? Is the Danish Government open to revising the scope of these reports and defining the TOR and scope in conjunction with relevant professionals and displaced Syrians themselves?
  • How does the Ministry of Immigration see the contradictions in the COI October 2020 report which served as the basis for recent decisions to withdraw protection from Syrian refugees from Damascus and Rural Damascus, where the information in the report directly contradict its final assessment?
  • Why has the Ministry relegated reports from the likes of SNHR, SACD and other credible Syrian and international organisations to “background material”, when these reports clearly document abuses by the Syrian regime in contrast with the COI report?
  • Why hasn’t the Danish Immigration Service been applying the principle of caution to case reviews?
  • Has the Danish Ministry of Immigration considered the protection concerns caused to Syrian refugees in Denmark by the content of their rejection letters and the proposed use of immigration detention centres for long-term residence for rejected cases, despite the appalling conditions of these centres?

Minister Tesfaye’s (non)response

In May and June, SACD received responses from Minister Tesfaye. In the letter, he shifts the responsibility for the decision to the Refugee Appeals Board, claiming that “The decision to reassess the residence permits of persons from Damascus and Rif Damascus was based on a conclusion on the general security situation in Damascus and Rif Damascus from the Refugee Appeals Board. The Board’s decisions are in accordance with the Danish Aliens Act which is of course in accordance with Denmark’s international obligations, including article 3 of the European Convention on Human Rights.”

However, Minister Tesfaye’s response does not in any way explain the grounds on which he bases his assertion that withdrawal of protection for Syrian refugees is in line with the Article 3 of the ECHR, nor does he address the majority of relevant questions we posed on behalf of Syrian refugees in Denmark whose lives have been endangered by this decision.

Minister Tesfaye says that “the Ministry of Immigration and Integration takes no part in the assessment of cases regarding asylum. The Danish Immigration Service assesses all cases in first instance and the Refugee Appeals Board in the second and final instance.”

In fact, the Danish Immigration Service is a directorate of the Ministry of Immigration and Integration and its assessment in the first instance (that it is sufficiently safe for Syrian refugees to return to Damascus and Damascus Countryside) has basically been upheld by the Refugee Appeals Board. We have addressed the same letter to the Refugee Appeals Board, but they did not bother to reply. Although the Danish Government’s political responsibility for the change in policy which has resulted in the breach of ECHR and UNHCR protection thresholds and endangerment of Syrian refugees from Damascus and Damascus countryside is clear, Minister Tesfaye now seems to be placing the entire burden for these decisions on the Danish Immigration Service, a directorate in his ministry. While in April he stated to AFP that the government’s policy is working and I won’t back down, it won’t happen. We have made it clear to the Syrian refugees that their residence permit is temporary and that the permit can be revoked if the need for protection ceases to exist.” In his latest letter to SACD, he directs all responsibility for the policy to the Danish Immigration Service and Refugee Appeals Board: “The Government complies with an arm’s length principle that implies that decisions in asylum cases are made by the Danish Immigration Service and the Refugee Appeals Board independent from the political process. Thus, I will not and cannot interfere with or comment on the decisions or the practice of the Danish Immigration Service nor the Board.”

The Minister’s attempt to deflect responsibility for the problematic policy does not change the fact that it was the assessment of an organ of Tesfaye’s Ministry, in line with the Government’s stated policy, that has led to the final decisions of the Refugee Appeals Board which are in clear breach of the ECHR Article 3. In the Minister’s reply he claims that the decisions are “of course in accordance with Denmark’s international obligations, including article 3 of the European Convention on Human Rights.” However, it is abundantly clear now that the government’s policy is in direct collision with the EU’s own assessment, which is grounded in the ECHR, with the UNHCR protection thresholds, and the assessments of Amnesty International, Human Rights Watch and organizations like SACD or Syrian Network for Human Rights, which have provided a mountain of evidence that nowhere in Syria, including Damascus and Damascus Countryside, is  safe for refugees to return. Simply stating that the decision is in accordance with ECHR does not make it so in face of the overwhelming evidence. The key questions remain ignored by the Ministry, the Danish Immigration Service and the Refugee Appeals Board:

  • What is the criteria used to determine that in these cases of refugees from Damascus and Rural Damascus withdrawal of protection and their return to Syria would not breach Article 3 of the ECHR?
  • What is the justification for continuing to utilize the removal of protection pursuant to Aliens Act, section 7, subsection 3, as a justification for these decisions?
  • How did you decide which topic, subtopics and research questions need to be addressed when creating the TOR for the COI reports on Damascus, Rural Damascus, and subsequent geographical areas? Why doesn’t this cover the breadth of security concerns faced by Syrians inside Syria, or on return? Is the Danish Government open to revising the scope of these reports and defining the TOR and scope in conjunction with relevant professionals and displaced Syrians themselves?

Minister Tesfaye also states that the “COI reports that you mention in your letter, are made by the Country Documentation Office of the Danish Immigration Service. The Ministry is not involved in the preparation of these reports and has no influence on neither creating the Terms of Reference (ToR) nor the content of the final reports. For answers on questions regarding the COI reports I must thus refer you to contact the Danish Immigration Service.” Again, the Danish Immigration Service is a directorate within the Ministry of Immigration and Integration and it baffles us that Minister Tesfaye, despite his previous statements confirming that these decisions are the result of his Ministry’s policy, now seems to be implying that they were made by bodies outside the Ministry’s authority and responsibility. So far neither the Minister, the Danish Immigration Service nor the Refugee Appeals Board have responded to our questions on numerous contradiction in the COI October 2020 report on Syria, which served as the basis for the Danish Immigration Service’s assessment in the first instance, which was confirmed by the Refugee Appeals Board:

  • How is it possible to have such contradictions in the COI October 2020 report which served as the basis for recent decisions to withdraw protection from Syrian refugees from Damascus and Rural Damascus, where the information in the report directly contradict its final assessment?
  • Why were the reports from the likes of SNHR, SACD and other credible Syrian and international organisations relegated to “background material”, when these reports clearly document abuses by the Syrian regime in contrast with the COI report?
  • Why haven’t the Danish Immigration Service and Refugee Appeals Board been applying the principle of caution to case reviews?

Still, Minister Tesfaye defends the policy by arguing that “although the Danish government does not engage in forced returns this does not change the Danish government’s position on temporary protection. Persons without legal stay are obliged to leave Denmark and the best solution for all parties would be, if the persons concerned return voluntarily. The Danish authorities will continue to assist persons from Syria in Denmark with arranging their voluntary return and offer financial assistance in case of such return.” We are sure that the Danish government appreciates the fact that forced return is not limited to a physical removal of refugees from a given territory, but also includes various coercive measures including detention in inadequate conditions, denial of access to proper education and work opportunities, creation of a sense of despair, which the recent decisions of the Danish government have amounted to for those Syrian refugees unfortunate enough to be subject to protection withdrawal.

This statement from Human Rights Watch: “These coercive measures come amid xenophobic rhetoric from leading politicians calling for the return of Syrian refugees and claiming that Syria is safe.“ refers to Lebanon, but it could be applied in its entirety to Denmark in the current circumstances. Whish draws us to ask again:

  • Has the Danish Ministry of Immigration considered the protection concerns caused to Syrian refugees in Denmark by the content of their rejection letters and the proposed use of immigration detention centres for long-term residence for rejected cases, despite the appalling conditions of these centres?

What next?

Considering the latest decision of the Danish Parliament to establish refugee “processing centers” outside the European Union, it is clear that the decision to withdraw protection for Syrian refugees is part of a political approach which seeks to dehumanise and scapegoat those most vulnerable fleeing their homes in search of safety and basic human rights in exchange for short-term political gains. We are under no illusion that such populist politics will ever take seriously European Convention on Human Rights, the UN Refugee Convention or EU’s own refugee laws, as was demonstrated in Minister Tesfaye’s response. However, it is the obligation of all relevant authorities, including the EU’s own institutions, UNHCR, OHCHR, international human rights organisations and civil rights activists in Denmark and elsewhere to pose these same questions to the Danish government, to establish its responsibility for breaches of protection rights of Syrian refugees and ensure that such discriminatory policies are not adopted elsewhere. “Returnees [to Syria] continue to face numerous obstacles and threats such as forced conscription, indiscriminate detention, forced disappearances, torture, physical and sexual violence, among others.” We must make these words from the EC’s Directorate for Civil Protection and Humanitarian Aid echo in the Danish political and public discourse, and beyond, as a reminder of how deeply inhumane and unacceptable the decision to withdraw protection from Syrian refugees from Damascus and Damascus countryside really is.

As we have stated repeatedly, the Danish government must review this decision in the face of overwhelming evidence which clearly shows the flawed basis upon which it was made. The only way to ensure this is the case is through a comprehensive political solution, which will guarantee the rights of the displaced people with robust international guarantees. On this, let us quote the Danish Minister of Foreign Affairs Kofood again: “Long term stability a negotiated end to the conflict. It requires the regime to change its behavior. The abuses the Syrian people rose up against. This must stop now.” We agree. Before contemplating any return, such abuses by the regime must stop. In Damascus and everywhere in Syria. Return of Syrian refugees must be safe, voluntary and dignified. Anything else, including partial returns which expose people to the same threats they fled from, is a recipe for disaster that will primarily affect Syrians, but will reverberate far beyond Syria and the region.

  • Cover photo: Screenshots of some official correspondences between SACD and the Danish Minister of Immigration and Integration Mattias Tesfaye between April and June 2021.

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