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Politics of Exclusion: Xenophobia and the Danish Expulsion Law

Some might say the elderly are an unlikely source of political mobilization, but those skeptics can’t have witnessed the Bedsteforældre for Asyl, Grandparents for Asylum, marching in protest outside the Sandholm Refugee Center in Copenhagen. What moved these aging Danes to take to the streets? Erik Hansen, a founding member of the group, explains: “Denmark was known for its humanity for many years. We had a good image around the world, and we are about to lose it.”  How did a nation that has been celebrated as a staunch champion of human rights earn its new reputation as a country with one of the strictest and most exclusive immigration policies in the European Union? The progress and passage of Denmark’s new expulsion law demonstrates the, often targeted, xenophobia that has come to characterize public discourse around immigration. 

On June 24th 2011, the Danish government adopted the expulsion law as part of the already existing Aliens Act. The law, which will take effect July 1st, targets non-citizens with harsher punishments for equal crimes. Legal immigrants who have lived in Denmark for less than five years are automatically deported if they receive any conditional imprisonment or unconditional deprivation of liberty. Those who have legally resided in Denmark between five and nine years will be deported if they receive a one year sentence, or after six months imprisonment for several crimes. And legal residents of nine or more years can be deported for certain crimes when given unconditional punishment. 

In a legal system based on proportionate and least restrictive punishments, non-citizens will now be subject to deportation, regardless of their crime’s severity or circumstance. And protests are not just coming from outside the refugee camp. Cecilie Kondrup, a Red Cross social worker in Sandholm observes: “It’s one amongst many laws which expresses that ‘we’ don’t want ‘foreigners.’” As Kondrup notes, the differential treatment threatened in this law fosters an ‘us versus them’ dichotomy. It is the latest move towards creating two versions of justice in Denmark – and that excludes Denmark’s growing ethnic minorities from their traditional human rights framework.  

The Backdrop: Criminal Justice in Denmark

Peter Scharff, a senior researcher at the Danish Institute for Human Rights, outlines the Danish prison system as based on two principles: normalization and imprisonment as a last resort. This human-rights approach to criminal justice lies in stark contrast to the penal policies of Denmark’s close ally, the United States. The American ‘tough on crime’ attitude relies on deterrence theory, or the idea that harsher sentences will discourage crime because breaking the law will lead to greater costs for the individual. Denmark also aims at reducing the crime rate, but by very different means. 

The idea of imprisonment as a last resort allows Danish courts a variety of alternative measures when sentencing a lawbreaker including: community service, confiscation, and semi-detention. While these options exist in the American framework, they are utilized far less often. Instead mandatory minimum sentences in the U.S. have contributed to an unprecedented experiment in what is now called mass incarceration. According to the 2009 World Prison Brief, the United States imprisons 743 people for every 100,000 living there, compared to Denmark’s 74. These different results also stem from Scharff’s second idea: normalization. 

Anne Okkels Birk grew up on the grounds of a Danish prison where her father worked. She describes normalization like this: “Imprisonment harms people and makes them susceptible to do more crime. Therefore, conditions inside the prison should be normalized… life inside should be as much like life outside as possible.” Nothing illustrates this philosophy like a visit to Jyderup, one of Denmark’s open prisons. Open prisons outnumber closed ones eight to five, which means that the majority of Danes who are sent to jail spend time in a facility like Jyderup where inmates cook their own food, wear their own clothes, and work a typical nine-to-five job. This ’normalcy’ startles most American visitors who conceive of prison-time as a punishment that is meant to deprive civil rights and often dignity along with liberty. This is not the case at Jyderup where inmates can work, study, play video games, or even tan in the prison’s own tanning bed. “We are here to deprive them of liberty and nothing more” explains one guard when met with the raised eyebrows of an American in the group. 

The results of this system appear promising: not only does Denmark imprison fewer of its population, but for shorter sentences and at a far smaller cost. Possibly the most compelling argument for the Scandinavian model is Denmark’s recidivism rate. The Justice Policy Center in Washington D.C. shows that within three years almost seven out of ten released males end up back in prison in the U.S. In Denmark however, recidivism in 2006 was 29.8%.

Given the context of their criminal justice system and these results, Parliament’s passage of the new expulsion law on June 24th seems out of character. The law threatens to expel immigrants from the country for even minor crimes based on the assumption that this will prevent future crime. Bjørn Elmquist, a prominent human rights lawyer, comments on the law’s shift towards a deterrence approach to criminal punishment: “Normally, we would say that preventative measures are good. But if the measures are punitive in character then the word is misunderstood. Typically it would be of a social, educational, or economic matter while here we are talking punitive but calling it preventative.”  Elmquist identifies a key difference between American deterrence and traditional Danish prevention. 

The Danish philosophy attempts to reduce crime by facilitating lawfulness. For example, they provide education to inmates that will lead to more economic opportunities upon their release. But the recent expulsion law much closer resembles the American reliance on intimidation and sanctions. This shift only makes sense in Danish context because of its target: residents without citizenship in Denmark who are mostly non-Western immigrants and are often conflated with crime itself. 

The Argument for Exclusion

“If you aren’t a Danish citizen, then you should be able to be deported much easier than is the case today.” – Peter Skaarup, Danish People’s Party

The passage of the expulsion law is not surprising considering the restrictive laws and policies that the Danish government has enacted over the past ten years that specifically impact immigrants and refugees.  Ever since the Danish People’s Party became the primary support to the conservative coalition government in 2001, the government has passed a series of laws creating stricter requirements for attaining permanent residency or citizenship in Denmark.  Capitalizing on right-wing and increasingly centrist concerns over non-Western immigration and the economic cost of immigrants to the welfare state, these laws legitimize widely-circulated rhetoric about the violence and criminality of immigrants.  They assert an ethnically and socio-economically homogeneous Danish society by favoring assimilation over integration.

Margrethe Wivel, director of the Nørrebro Immigrant Women’s Center, does not anticipate an organized response to the law from the women she works with because of the reluctance to be in any way connected with crime as an immigrant. She reflects, “our women were very harsh on gangs; more than ethnic Danes because they don’t want to be associated with crime.” These women’s attempt to rhetorically distance themselves from crime may show how some immigrant women of color have internalized the general discourse criminalizing new Danes.

Denmark’s exclusionary immigration policies began to take effect in 2002, with the passage of the 24-year rule.  Just as the new expulsion law relies on sensational anecdotes about ‘immigrant gangs,’ the 24-year rule was justified by concerns that family-reunification laws facilitated forced-marriages amongst Muslim immigrants. The law requires each person in the marriage to be at least 24 years old.  The couple must also prove that their accumulated attachment to Denmark is greater than that to their country of origin, make over 62,000 DKK ($12,400) annually, and own or rent a residence than can accommodate at least 20 square meters per person. The 24-year rule was then followed by the 28-year rule in 2003.  This law removes the requirement that a couple prove their attachment to Denmark, only if they have had Danish citizenship for at least 28 years – an obvious loophole for ethnic-Danes born into citizenship. 

Compounding these legal barriers are the economic barriers enacted through “start help,” which only provides half of the typical assistance benefits to residents who have lived in Denmark less than seven years and have been employed for less than two and a half.  In Denmark’s 2011 Universal Periodic Review, multiple human rights organizations criticized these laws as blatantly discriminatory against immigrants and called for their repeal.  The new expulsion law, however, proves that the government is not yet moving in that direction.

The “stop and search” zones, legalized in 2004, also contribute to the criminalization of immigrants of color. In these zones, police are allowed to stop and check anyone for knives and other weapons without reasonable suspicion.  This has led to racial-profiling, as police often stop immigrants of color who are portrayed as menacing in popular rhetoric and media.  Visitation zones legitimize sensationalized stories about immigrant gangs, who are not representative of the majority of immigrants, and who will be affected by the expulsion law.

Each of these laws and policies reflect the stringent requirements within the Danish citizenship test that reinforce the separation of immigrants of color from ethnic, white Danes.  This test not only requires applicants to have a thorough knowledge of Danish politics, history, and culture, but also costs 3,000 DKK ($600) and includes an oral language test.  This presents major economic and social barriers for immigrants, but particularly for refugees over 18 years of age, who are not allowed to learn Danish in refugee camps like Sandholm.  In contrast, recent comments by the Danish Minister of Integration, Søren Pind, indicate that certain groups from more industrialized and affluent countries, such as the U.S., Australia, and Japan, may be exempted from some of the harshest requirements under family reunification laws, including this test. 

In May 2011, Pind stated, “It’s a colossal problem that the immigration law is so full of politically correct wording that we end up hurting people who want to come to Denmark and don’t require anything from the state.”  His statement fuels the rhetoric that classifies immigrants as an economic burden on the Danish welfare state and blatantly favors white, well-educated, wealthy people from industrialized countries.  It also illustrates that being “politically correct” in Denmark entails saying what everyone is “really” thinking about the costs and criminality of immigrants of color. 

While the passage of the expulsion law may seem in line with political commentary over the past ten years, it is somewhat surprising considering the country’s commitment to the human rights of marginalized people. The Danish resistance helped to protect Jewish Danes through their safe passage to Sweden during World War II. Denmark was the first country to sign the Convention on Refugees in 1951, and as of 2002 it was the second biggest per capita contributor to the United Nations High Commissioner for Refugees.  Denmark’s open prisons also illustrate its belief in rehabilitative and rights-based criminal justice.  These actions contribute to Denmark’s classification as an important humanitarian actor both nationally and internationally for many years. 

Erik Hansen’s concern that Denmark may be losing that international image reflects a growing frustration with xenophobic policies such as the expulsion law. The law offers a different legal standard for immigrants who represent just 10% of Denmark’s population of 5.5 million. Selective justice such as this indicates Denmark’s movement towards legalized discrimination and racial-profiling in the name of social cohesion – a phrase often used as a euphemism for cultural homogeneity. And the debate stretches beyond rhetoric to impact immigrants’ lives in real ways.  According to the UPR, the number of rejected refugees’ applications for permanent residency rose from 5.3 percent in 2003 to 54.2 percent in 2009.  What remains to be seen is the national and international response to the expulsion law and how Denmark will balance its immigration policies with its human rights obligations. 

Critiques

Multiple organizations including Save the Children, the Danish Red Cross, and the Danish Institute of Human Rights (DIHR) have criticized the expulsion law. DIHR takes issue with the law’s lack of specificity around which crimes can lead to deportation. Vague legal wording could potentially further erode immigrant rights if the general discourse affects interpretation of the law. Bjørn Elmquist explains the multiple possibilities, stating that: “as council of defense, I will very much be fighting one interpretation of the law. But if the courts interpret this way, not that, then I’m afraid of a very bad situation for individuals and also for the principle of non-discrimination.” As Elmquist indicates, the lack of specificity in the law could easily amplify the damage it does by setting precedents for the legal exclusion of minorities through restrictive citizenship policies and differential treatment. 

The Danish Red Cross, which is in charge of securing asylum seekers’ safety in Denmark, argues that the law violates the Refugee Convention. Their chief concern is the likelihood that even more refugees will be warehoused in already over-crowded asylum centers where individuals must go, on ‘tolerated-stay,’ when they are deported to countries where they would be unsafe. Functionally, this could mean a life sentence in a refugee camp such as Sandholm for those deported to countries with ongoing conflicts.  The expulsion law works as a double penalty then, because a person on tolerated-stay must remain in the refugee camp indefinitely and with very limited freedom of movement. Nina Marie Lassen, a senior researcher at the DIHR, echoes the concern about the law’s opposition to basic human rights.  She points out that, “A person on tolerated stay does not have the right to marry and found a family, which is against the right to family life.” Even worse, the law allows the Danish government to unilaterally evaluate which countries are suitable for deportation. Since there is a clear financial incentive for Denmark to approve a country, the process itself becomes compromised.  And so, potentially, non-citizens found guilty of criminal behavior could also be deported to unstable countries they’ve never actually lived in. Again the law’s vague parameters pose a human rights threat. 

Save the Child expressed concerns over the law’s implications for individuals under the age of 18. As the legal age for punishment in Denmark has decreased to 14 years, a child of that age could be deported. This means that the child could be forced to leave their family and social network. They could be sent to travel to a country they may not ever have visited, one whose language they’re not fluent in. Due to international human rights laws, this worst-case scenario will likely never occur, even though the expulsion law makes it legal within a Danish framework. But even where the law appears toothlessly symbolic, it can be dangerous – any national erosion of human rights destabilizes the international agreements that protect them. 

While organizations have made legal and rights-based critiques of the law, one politician points out the implications imprecise laws like this can have for individuals in Denmark. Line Barfoed, the legal spokesperson for Denmark’s Unity Party, points out, “not only clear criminals will be affected; normal people might be victims of this law.” Barfoed references Denmark’s recent knife-law, which gives a minimum seven-day sentence for wearing a knife in public. In combination with the expulsion law, this creates enormous latitude for Danish courts to selectively expel non-Western immigrants who are blatantly targeted by Islamophobic political rhetoric even if their appearance in laws like this is more coded. The immigration spokesperson for the Danish People’s Party, Jesper Langballe, declared: “we know the problem lies in those Muslim groups that come from the Middle East, and that other immigrant groups are harmless.” Within the context of mainstreamed discriminatory sentiments such as this, the motivations behind the expulsion law are revealed to be less about a shift towards ‘tough on crime’ policies, than ‘tough on Islam.’ 

Politicians from several centrist parties have justified their support for the expulsion law (which was proposed by the Danish People’s Party) by claiming that it is simply a law about justice, one that will only affect gang members, and one that is not a part of the larger immigration debate. This claim is weakened by the fact that the law can only influence non-citizens, however, and by the pointed general discourse illustrated by Langballe’s comment.

What’s Next?

Denmark’s increasingly restrictive immigration policies contrast sharply with the country’s historically rights-based criminal justice system.  Immigrants of color are consistently treated as if they are expected to commit a crime, while prisoners are put into a system that prepares them to participate and grow in the community.  This differential treatment creates a dangerous precedent for the exclusion of minorities from human rights on the grounds of citizenship.  Despite national and international organizations’ criticisms of these policies, however, the Danish government continues to enact extreme measures. These policies normalize the criminalization and marginalization of immigrants of color, they spread Islamophobia, and they prioritize cultural homogeneity.  While this is in accordance with immigration politics within the last decade, it also calls Denmark’s commitment to human rights into serious question.  

Where can human rights activists and concerned individuals go from here? The expulsion law moves the political debate concerning immigration to a new level and will heighten anti-immigrant and anti-Muslim rhetoric if not challenged by dissenting individuals and groups.  The legal, political, economic, and social implications of this law are alarming and must be discussed.  Individuals and groups against the law must collaborate to bring attention to it at the national and international level.  Just as right-wing and centrist parties have influenced the debates concerning immigration, so, too, can those who are in favor of the decriminalization of immigrants and the halt of discriminatory policies against them.

 

References

‘A parliament majority favors the permanent expuls.’  The Copenhagen Post.  17 April 2008.

http://www.cphpost.dk/news/1-latest-news/2097.html

‘Family Reunification.’ New to Denmark.  18 August 2010.  

http://www.nyidanmark.dk/enus/coming_to_dk/familyreunification/family_reunification.htm

‘Folketinget har vedtaget kritiseret udlændiglov.’  Politiken.  24 June 2011.  

http://politiken.dk/politik/ECE1316291/folketinget-har-vedtaget-kritiseret-udlaendingelov/

‘Minister: All immigrants are not created equal.’  The Copenhagen Post.  20 May 2011.  

http://www.cphpost.dk/news/making-the-cut/200-making-the-cut/51663-minister-all-immigrants-are-not-created-equal.html

‘SF’ere vil ikke stemme for udvisningslov.’  DR Forside.  22 June 2011.  

http://www.dr.dk/Nyheder/Politik/2011/06/22/115707.htm?rss=true

‘The Danish Prison System and the rights of the imprisoned.’  Presentation by Peter Scharff 

Smith.  Humanity in Action Denmark Summer Academy.  15 June 2011.

‘UNHCR expresses concern over proposed refugee policies.’  UNHCR.  22 January 2002.  

http://www.unhcr.org/3c4d71116.html

Universal Periodic Review: Denmark.  May 2011. 

‘World Prison Brief.’  International Centre for Prison Studies.  2011.  

http://www.prisonstudies.org/info/worldbrief/wpb_country.php?country=134

Interviews 

Barfoed, Line.  27 June 2011.  Phone interview.

Elmquist, Bjørn.  24 June 2011.  Phone interview.

Hansen, Erik.  24 June 2011.  Phone interview. 

Kondrup, Cecilie.   27 June 2011.  Email correspondence.

Prison guard at Ellebæk.  26 June 2011.  Phone interview.

Wivel, Margrethe.  27 June 2011.  Phone interview.

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