Detention of Asylum Seekers - The Case of Denmark

It has been stated by an international consensus that detention of asylum seekers should normally be avoided, yet states recourse to detention in an extensive manner and the detention of asylum seekers risks becoming regarded as an administrative practise. There are a number of human rights instruments that consist of protective measures to ensure that individuals are not arbitrarily or unlawfully deprived of their liberty. Together, these measures constitute an international framework of basic safeguards, which, if fully implemented, would help to eliminate the more serious abuses to which detainees are frequently subjected. In June 2001, Denmark adopted an amendment to the Danish Aliens Act where the application of detention of asylum seekers was extended. According to the Danish Government the changes were a result of the increasing number of criminal acts among asylum seekers. The authorities also found a grand problem with uncooperative asylum seekers that delay the asylum procedure. This thesis describes the background and causes of the Danish amendment to the Aliens Act, concerning detention of criminal and administrative expelled asylum seekers. It also seeks to analyse whether the amendment is in conformity with international human rights conventions and standards. Further, the thesis suggests that the Danish amendment, in parts, arguably can be considered to be in breach with international human rights law. These areas deal primarily with&semic the application of public order, the length of detention, the continued imprisonment of convicted criminals and the detention of uncooperative asylum seekers. The decisive criterion as to whether these cases of detentions are in conformity with international laws and standards is the principle of proportionality, where a strict balancing of interests should be assessed. Moreover, the prohibition of arbitrariness, which could be summarized as by necessity, reasonableness and proportionality, should have a role in deciding whether a detention is in conformity with international instruments. When analysing the amendment's compliance with international law, the conclusion can be drawn that there are cases where the law itself violates international law, but also cases where the enforcement of the law constitutes such violations. After scrutinizing the preparatory work of the new provisions and their conformity with international human rights laws and standards there seems to be shortcomings in the applicability of these instruments, especially regarding the use of the principle of proportionality, such as neglecting the individual's rights when weighing their rights to the interests of the state. Further, Denmark has not paid accurately attention to the principle that other monitoring mechanisms should be applied to unless proven insufficient. The conclusion can be drawn that something has to be done with regard to the deficiencies of the amendment's compliance with international law. For example, political pressure from the international community together with actions by national non-governmental organizations could play an important role in condemning the Danish legislative performances in regard to detention of asylum seekers. In conclusion, it can be noted that the far right winged politics in Denmark plays an increasingly prominent role on the political arena and consequently exercises an influence upon mainstream political parties. With regard to the present political climate in the country, it is unlikely that any far-reaching changes concerning the detention of asylum seekers will take place. It is important that the international community takes a firm stand against the developments of the asylum politics in the country, which otherwise could escalate into more severe breaches of international human rights law