• Peter Verenikin Dalsgaard
4. term, Laws, Master (Master Programme)
Foreigners who have been legally expelled from Denmark, but cannot be returned to their home country against their will, can stay in Denmark under the “tolerated stay” regime. These people come from countries, where they risk ill treatment, such as treatment in violation of article 3 of the European Convention on Human Rights (ECHR), which prevents them from being forcibly expelled. They are, however, not wanted in Denmark, so their stay is merely “tolerated”. This means, that they do not have legal residency, cannot work or take part in education, and are subject to restrictions. The two major restrictions which they can be subject to, are obligation of stay, and obligation of report.

The aim of this thesis is to investigate whether the Danish regime of obligation of report and stay is in accordance with the international obligations of Denmark, specifically the European Convention on Human Rights.

If foreign national receives a jail sentence of a certain severity, they will be expelled as according to the Aliens Act sections §§ 22 – 24. A foreign national can also be administratively expelled under section § 25 of the Act. If the foreign national cannot be forcibly expelled, they will end up under “tolerated stay”, and usually become subject to one or more obligations.

The obligation of stay is the most burdensome of the two. This is a legal requirement to take residency in a place designated by the government, usually a “Return centre”, run by Department of Prisons. Residents are allowed to leave during the day, but will usually have an obligation to report to the local authorities 3 days a week within a designated time slot.

The obligation of report is less burdensome, and can be issued without an obligation of stay. This will require the foreigner to report to local authorities a certain amount of times every week.
Failure to obey an obligation of stay or report, will result in a jail sentence.

The obligations are currently found in sections §§ 12-13 of the Danish hjemrejselov. The obligations are subject to a proportionality requirement, which used to be judged according to article 2 the 4th Additional Protocol of the ECHR, but today is judged according to article 8 of the ECHR, which protects the right to the private and family life.

There have been several important judgements on this area, which have set up criteria for judging the proportionality of these obligations. U.2012.2874H (the so called “Karkavandi Case”) set up 5 criteria, and these have been used in most judgements since then. In several cases, the obligations have been found to be not proportional and thus illegal. The cases are analysed in the thesis, and their impact discussed.

The question of whether the current way of judging proportionality violates the ban on discrimination in article 14 of the ECHR is then discussed. Legal literature on this is discussed as well.

The physical conditions of the return centres have been subject to criticism, and according to some legal experts may be in violation of the ban on inhuman or degrading treatment in article 3 of the ECHR. This is also discussed and analysed.

The thesis concludes, that the current proportionality criteria could violate the discrimination ban in the ECHR, as they allow the authorities to put restrictions on people based on their risk to society, something which the European Court of Human Rights has found to be in violation of article 14 of the ECHR, in A. and Others against UK. The thesis examines legal literature on the topic, where legal experts also have criticised the way “tolerated stay” cases are handled.

The thesis further concludes that the conditions at the return facilities could in certain cases constitute inhuman or degrading treatment, in violation of article 3 of the ECHR. This is especially true for those foreigners with obligation of stay, who have developed psychological during the stay, as examined by the Danish Parliament Ombudsman.

The thesis lastly provides suggestions as to how the “tolerated stay” regime can be run without violating the ECHR.
Publication date24 Mar 2022
ID: 465890498