The Danish Parliament recently passed a controversial amendment to the Aliens Act (Bill no. 87) giving police the power to search and confiscate the property of asylum seekers to contribute to expenses associated with their stay in Denmark (BBC). First proposed on 10 December 2015, the bill quickly made international headlines (BBC, Washington Post).
Although the confiscation of asylum seekers’ assets probably violates several human rights, so far the implementation of similar laws in other countries does not seem to have lead to complaints before the European Court of Human Rights (ECtHR). This post provides a short analysis of the recent amendment to the Danish Aliens Act, focusing on its implications under the European Convention on Human Rights (ECHR).
Bill No. 87
Bill no. 87 had its first reading in the Danish Parliament on 13 January 2016. It was rapidly passed into law with a sizable majority (81/27) on 26 January 2016. The bill amends the Danish Aliens Act (Udlændingeloven), bestowing new powers upon the police concerning the seizing of assets of asylum seekers. Even before the amendment, the Aliens Act already stated that asylum seekers could be required to contribute to expenses associated with their stay. The law, however, only allowed asylum seekers to be charged for 90 days and, to our knowledge, it was never enforced. Danish police also had the power to search asylum seekers, in order to find items or documents that could be of importance when processing asylum claims. But Danish police were not allowed to confiscate valuables during such searches. The recent amendment to the law has bestowed this power upon the police and removed existing time limitations.
The new and controversial feature of the Danish Aliens Act, therefore, is not that asylum seekers can be asked to contribute to the expenses associated with their stay in Denmark, or that they can be searched. Rather, the recent amendment gives the police the power to search asylum seekers with the aim of confiscating property.
According to the Danish Integration Ministry, the new rules only apply to assets of “considerable value.” Initially, this term was defined as cash and tangible assets worth more than 3,000 Dkk (€402). The threshold was subsequently increased to 10,000 Dkk (€1,340) per person. Items with sentimental value, such as wedding rings, are exempt altogether. This is largely similar to Swiss or German laws, which already require that asylum seekers’ assets over €900 or €750, respectively, be handed over to immigration authorities.
The Right to Property
The human right to property is not included in all human rights instruments and does not, for example, feature in the ICCPR or ICESCR. Other human rights treaties, however, protect the right to property (e.g. CEDAW and ICRMW), focusing on equality and non-discrimination.
The 1951 Refugee Convention contains several provisions related to property (Articles 13, 18, 19, 29 and 30). Similar to other human rights treaties, the Convention requires States to respect asylum seekers’ property rights based on the principle of non-discrimination. Article 13 specifically provides that States must afford refugees the same rights to moveable and immoveable property as other foreigners.
The principle of non-discrimination does not, however, mean that property can never be confiscated. According to James Hathaway, general principles of law “authorize the subordination of property rights to important social or public needs.” He nevertheless notes: “confiscation imposed only on refugees is discriminatory, thus vitiating any such justification” (The Rights of Refugees under International Law, 2005, p. 523, emphasis added).
The Danish Government’s position is that foreigners who have the means to do so should pay for their stay in asylum centres and costs associated with healthcare. The Minister for Integration has compared asylum seekers to unemployed Danes who, she argues, must sell their assets in order to qualify to receive social benefits. Thus, it appears that, according to the Danish Government, the recent amendment does not discriminate asylum seekers, but rather places them on an equal footing with Danish citizens.
The amendment has received numerous criticisms, including by international and regional human rights bodies. The UNHCR has cautioned that confiscation would place an undue burden “on persons who by definition are vulnerable” (para 51). Nils Muižnieks, the Council of Europe Commissioner for Human Rights, has written to the Danish Minister for Immigration, expressing concern over possible violations of the human right to property. Although not included in the ECHR as originally drafted, the right to property features in the 1952 Additional Protocol 1 to the Convention. Article 1(1) asserts:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
There is no doubt that the confiscation of cash or other assets is an interference with the right to property, as defined in Additional Protocol 1. The ECtHR generally leaves its parties a broad margin of appreciation to regulate and control property. In Sporrong and Lönnroth, however, the Court famously specified that it:
…must determine whether a fair balance was struck between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights… (para. 69)
Importantly, the Court highlighted that a fair balance is not struck where an individual has to bear an “excessive burden” compared to other members of society (para. 73).
In addition to striking a fair balance between competing interests, any interference with the right to property must be in accordance with domestic and international law and serve a legitimate aim. In James and Others, the ECtHR noted:
The taking of property in pursuance of a policy calculated to enhance social justice within the community can properly be described as being ‘in the public interest.’
Whether the aims of the Danish Government in relation to seizing the assets of asylum seekers can be qualified as “social justice” seems doubtful. Asylum seekers and refugees are generally considered a particularly underprivileged and vulnerable group in need of special protection, as the ECtHR stressed in MSS v. Belgium and Greece (para. 251).
Stripping people in search of international protection of their assets to pay for the costs of their reception does not seem to strike a fair balance between community and individual interests. This is especially so when one considers that the amount of money collected by seizing the assets of asylum seekers is likely to be modest. In 2015, the Swiss Government reportedly collected a total of 210,000 Swiss francs (€200,000) from 112 individuals.
Furthermore, confiscatory schemes targeted only at asylum seekers are likely to breach the prohibition of discrimination enshrined in Article 14 of the ECHR. One may argue that asylum seekers are not in a “comparable” situation to nationals, as they do not enjoy the same rights. Some rights, like the right to vote, are generally limited to nationals and, under the ECHR, asylum seekers have no right of access to the territory of State Parties. Most rights under the ECHR do not, however, allow any discrimination. Instead, the rights of everyone within the jurisdiction of a State Party, regardless of status, must be secured (Article 1 ECHR).
The rationale of the recent amendment to the Danish Aliens Act also deserves some consideration. The Danish Government has several times emphasised that the purpose of the amendment is to ensure that asylum seekers “pay their fair share.” But how they will be charged is not entirely clear. And unlike Swiss law, Danish law makes no provisions for returning asylum seekers’ confiscated assets, if they decide to leave Denmark. These details are likely to be crucial in any ECtHR’s assessment on whether the new rules are discriminatory or disproportionate. Compliance with the ECHR, however, is unlikely to have been a priority for Danish law-makers voting on Bill No. 87. Some have persuasively suggested the value of the bill is largely symbolic, and a way to send a signal to prospective asylum seekers.