The best interests of the child and attachment to Denmark
For almost two decades, Refugees Welcome has been fighting a battle to get the Danish authorities to recognise children's ties to Denmark – regardless of whether they are in the country legally, they live underground, or in an asylum centre. Our first victory was the case of the Somali girl Sahro Osman, whom we referred to the London-based legal NGO Aire Centre. They won the case, and it became a benchmark for all future cases concerning children's legal or illegal residence. Sahro had a period of legal residence and then lost it and lived underground.
The Convention on the Rights of the Child obliges Denmark to take into account the best interests of the child, including when it comes to asylum-seeking children. In cases where children have been in the asylum system for many years, it is almost always obvious that a residence permit in Denmark is the only way to ensure the best interests of the child. Their attachment to Denmark is quite clearly strong when they have spent their entire childhood here. Read our article on when attachment to the country triggers a residence permit.
The best interests of the child
RW has focused on this for many years, and we contributed to bringing about a change to the law in 2014. Against this background, we applied on behalf of a number of children (see below) and succeeded in obtaining residence permits for some of them. However, practice is still far too restrictive. We believe that no child should spend more than 4 years in the asylum system.
In May 2023, the Immigration Appeals Board issued a unprecedented ruling that had significant implications. For the first time ever, a family was granted a residence permit solely on the basis of the children's strong ties to Denmark after 15 and 12 years of residence respectively, despite the fact that their entire stay had been as asylum seekers and rejected asylum seekers. Similar cases had previously been rejected, and RW had actually applied on behalf of this particular family in both 2014 and 2017.
More about our efforts...
In 2013, RW published the report “The Character of Exception” on the leave to remain on humanitarian grounds (§9b), in which we conducted a case-by-case review of in all 80 permits. Only one of the 80 was granted to a child as the main applicant, despite the fact that a total of 72 children appeared in the cases overall. 37 of the children came from families with more than 600 days of residence after a final rejection of their asylum case – i.e. typically with a total residence time in Denmark of more than 3 years. The one child granted a permit was given it because of a kidney failure diagnosis, a disease that is very rare in children. Overall, it was clear that no consideration is given to the best interests of the child in applications for humanitarian residence.
In 2014, the daily newspaper Information published a series of articles on the best interests of the child and asylum-seeking children, based in part on our documentation. It culminated in a front-page article calling for the authorities to find a case in which residence was granted on the basis of the best interests of the child. They were unable to produce such a case.
The issue was raised in the Danish Parliament as a result of the press coverage, and the then Minister of Justice, Karen Hækkerup, wrote an addition to Section 9c(1) (which covers very special grounds) stating that the child's best interests should be assessed. At the same time, a procedure was introduced whereby all families with children who were denied humanitarian residence would automatically be assessed under Section 9c(1).
RW, a couple of lawyers and the Danish Refugee Council immediately submitted a number of applications referring to the best interests of the child. But we learned that it took more than a strong connection to Denmark. The children who were granted residence either had parents who were unable to care for them (placed in care or receiving extensive support at home), or they had had a short period of legal residence at some point. In addition, there was mental illness in most of the families, but that alone was not enough either.
The documentary film ‘Mon de kommer om natten?’ (Will They Come at Night?), which was shown at CPH:DOX and on DR2 in March 2017, depicts 2 years in the life of a young girl named Rokhsar. Two months after the film’s premiere, she and her family were granted residence permits after 6 years in the asylum system. RW Head of Organisation Michala Bendixen participated in the press work related to the film and was invited to the European Parliament in Brussels to answer questions during a screening of the film in the parliament.
Based on this case, we submitted a new handful of applications, but they were rejected. It seemed as if an exception had been made in Rokhsar's case because of the film, as these children had been in Denmark longer than she had.
Applications submitted by RW in 2017:
• Armenian family with two children whose mother was mentally ill (aged 11 and 8 at the time), had been in Denmark for 9 years (REJECTED again, but granted residence in 2023).
• Single mother with 9-year-old son from Congo, had been in Denmark for 7 years at the time, the police had attempted deportation, mother had cooperated since 2014, son attended special school (REJECTED again, but granted asylum for other reasons in 2021).
• Iraqi family with two children, who were 13 and 11 at the time, both born in Denmark (REJECTED again) – read more about the family in Politiken's articles.
Case for which RW was not responsible, but had contact with:
• Afghan family with 5 children, had been in Denmark for 6 years, mother with PTSD, 16-year-old daughter attempted suicide, documentary film ‘Mon de kommer om natten’ (Will They Come at Night) and major debate in the media (PERMISSION GRANTED 2017).
Applications submitted by RW 2014:
• Iraqi/Palestinian family with two children (aged 13 and 7 at the time), had been in Denmark for 13 years, mother mentally ill (PERMISSION GRANTED, on the grounds that the family had had a short, legal stay and was otherwise well integrated) – read more about Malak.
• Single mother from Pakistan with 3 young children, one of whom had numerous disabilities, had been in Denmark for 4 years (PERMISSION GRANTED, but at the same time a decision was made to forcibly remove one of the children).
• Family from Azerbaijan/Bosnia, had been in Denmark for 7 years, had had 4 years of humanitarian residence due to the father's mental illness, mother supports the family, has passed Danish 2 +, taken education, two children born in Denmark, at that time aged 6 and 4 (PERMISSION GRANTED).
• Armenian family with two children, had been in Denmark for 5 years, almost 3 years of humanitarian residence due to the father's mental illness, both parents self-supporting, two children born in Denmark, at that time aged 3 and 5 (PERMISSION GRANTED).
• Indian mother with two children (aged 15 and 6), had been in Denmark for 7 years, father died here (PERMISSION granted on the grounds that the mother received so much support in the home that the case could be equated with those where the children were placed in care, and that she had cooperated on departure – the case was handled in collaboration with a lawyer).
• Afghan family with 3 children (aged 17, 14 and 3), had been in Denmark for 4 years, father severely mentally ill (REJECTED, but ended up being granted asylum because the family had converted to Christianity).
• Afghan family with 4 children (aged 13, 8 + 8, and 1), had been in Denmark for 5 years, mother mentally ill (REJECTED, but ended up being granted asylum because the 16-year-old son had converted to Christianity).
• Armenian family from Azerbaijan with two children (then aged 12 and 11), had been in Denmark for 9 years, father in a wheelchair (REJECTED).
• Family with two children, mother mentally ill (then 8 and 5 years old), had been in Denmark for 6.5 years (REJECTED, but RW reapplied in 2017, and a lawyer from Aarhus later reapplied, and this time the family was GRANTED PERMISSION in 2023, see above).
• Roma family from Kosovo, 4 children, had been in Denmark for 3 years, children had never attended school in their home country but were doing well in Danish schools, both parents mentally ill (REJECTED, sent home in 2015).
