1. General Description of the Asylum System (types of procedures and instances).

The appeal system in asylumcases is two-tiered.

The Immigration Service is the first instance responsible for assessing a claim for asylum and the Refugee Appeals Board is the second instance.

If the Immigration Service rejects an application for asylum, the rejection occurs according to one of two different procedures. Most cases are decided according to the so-called normal procedure. This means that, if the asylum applicant is rejected, the case is automatically referred to the Refugee Appeals Board.

A minority of cases are considered manifestly unfounded and decided in an accelerated procedure. This occurs when the Immigration Service assesses that the applicant clearly cannot be granted asylum in Denmark. If The Danish Refugee Council which is a private, independent humanitarian organisation (NGO) agrees with the Immigration Service, the application will be rejected without contest. The asylum applicant cannot appeal this decision. On the other hand, if the Danish Refugee Council disagrees, the Immigration Service will generally still reject the application, but will nevertheless refer the matter to the Refugee Appeals Board for a final decision.

Regardless of the procedure, the asylum seeker has the right to remain in Denmark until the Refugee Appeal s Board has determined the outcome of the case (suspensive effect).

The asylum seeker is appointed an attorney when the case is pending before the Refugee Appeals Board. The lawyer's fee is subject to the rules applying when legal aid is granted.

2. Competences of the Authorities involved in review and appeal (as laid down in national legislation).

The Refugee Appeals Board is a quasi-judicial body. The members of the Board are independent and may not accept or seek directions from anyone including the appointing or nominating authority or organisation.

The Board is considered to be a court within the meaning of article 39 of the EU Council Directive on asylum procedures (2005/85/EC) concerning the right for asylum seekers to have their case examined by court or tribunal.

Asylum cases are heard by a board consisting of three members. The chairman must be an appointed judge. One member is appointed by the Ministry of Refugee, Immigration and Integration Affairs, and one member is appointed upon nomination from the Council of the Danish Bar and Law Society.

In the accelerated procedure the cases are decided by the appointed judge only.

When assessing an application for asylum the Board has the full competence in assessing the facts and the points of law. The competences of the Refugee Appeals Board comprise cases where the Immigration Service has refused an application for a residence permit for an alien who claims to fall within section 7 (1) (The Convention relating to the Status of Refugees of 28 July 1951) or section 7 (2) (subsidiary protection – risk of death penalty, torture or inhuman or degrading treatment or punishment).

For the Refugee Appeals Board to consider the conditions for a residence permit under section 7(1) of the Aliens Act to be fulfilled, the general criterion is that it may be feared that the person in question will be subjected to specific and individual persecution of some severity or a risk thereof in case of return to his country of origin. The wording of section 7 (2) is close to the wording of Article 3 of the European Convention on Human Rights. It appears from the explanatory comments to section 7(2) that it is presupposed that the immigration authorities will comply with the case law of the European Court of Human Rights in the field when applying the provision and that Denmark in addition to the provisions of the European Convention on Human Rights has an obligation to respect a number of other conventions of relevance to the provision. Furthermore it appears from the comments that a residence permit under section 7(2) cannot be granted with reference alone to a generally chaotic situation or a state of civil war in the country of origin. According to its practice, the Refugee Board will generally consider the conditions for issuing a residence permit under section 7(2) to be fulfilled when there are specific and individual factors rendering it probable that the applicant will be exposed to a real risk of the death penalty or of being subjected to torture or inhuman or degrading treatment or punishment in case of return to his country of origin.

Pursuing to section 56 (8) of the Danish Aliens Act Board decisions are final, which means that Board decisions are not subject to judicial review. This has been established before the Supreme Court. The judgements in these cases have concluded that the Board is an expert board of a quasi-judicial nature and that deliberations of the courts are limited to points of law.

3. Brief description of the proceedings before the authorities involved in review and appeal.

With exception of cases in the accelerated procedure proceedings all Board hearings are in general oral. If the case is referred to be considered under an oral proceeding at the Board, the hearing is attended by the asylum-seeker, the attorney, an interpreter and a representative of the Immigration Service.

During the hearing the asylum-seeker has an opportunity to make a statement and reply to questions. Then the attorney and the representative of the Immigration Service have an opportunity to present their legal arguments, whereupon the asylum-seeker makes a final statement.

After the deliberations of the Board, a written decision is drafted, reproducing the information available in the case and the decision of the Board with its grounds.

Normally, the Board decision will be served on the asylum-seeker in direct continuation of the Board hearing, and at the same time the chairman will give a brief explan ation of the decision made.

Senest opdateret: 19-09-2017
Udgiver: Flygtningenævnet

Til toppen