by Anna Lise Purkey
Assistant Professor of Sociology and Legal Studies, St. Jerome’s University, at the University of Waterloo
For a brief period of several weeks between December 2015 and February 2016, the ire of the community of people and institutions engaged in refugee assistance and protection was directed not at the more typical targets of reprobation such as Greece, Turkey, or Syria itself, but at the small country of Denmark. Recently named the world’s happiest country, Denmark became the subject of news headings such as “Denmark’s Cruelty Towards Refugees”, “Denmark Wants to Seize Jewelry and Cash from Refugees”, and “Sweden, Denmark and Germany’s Nazi Problem: Policy For Refugees’ Valuables Compared to Hitler Era”. International organizations including UNHCR, Amnesty International, Human Rights Watch, and the Council of Europe both questioned and condemned the Government of Denmark’s actions. The focal point for this agitation was the passage of Bill No. L87 by the Danish Parliament which amended the Danish Aliens Act and included the so-called “Jewelry Law” which provides Danish authorities with the power to search and to seize assets from a refugee applicant that could be used to reimburse the government for the expenses related to his or her maintenance, healthcare services, or stay at an asylum center. Despite the initial outrage and publicity, the Danish “Jewelry Law” and similar legislation in other countries quickly faded from attention and there is a resounding absence of a legal response in the wake. In framing the Danish “Jewelry Law” as an example of a law that occupies the grey area between what is legal and what is ethical, this article seeks to understand what such a grey area means for our current system of international protection in Europe and beyond.
The Jewelry Law
In Denmark, asylum seekers benefit from the Immigration Service’s maintenance obligation under which the expenses for their basic maintenance are offset by the Immigration Service. Prior to the enactment of the “Jewelry Law”, asylum seekers were required to disclose their assets and if they had sufficient means, the Immigration Service could order them to pay for their own maintenance expenses for up-to ninety days. Although disclosure was mandated, there was no general power of search and seizure. Under the Aliens Act as amended by Bill No. L87, Danish authorities are now permitted to search asylum seekers and to seize both assets and personal property with the exception that refugees are permitted to retain assets of a value of up to DKK 10,000 (1478 USD) as well as items of special sentimental value which, irrespective of their use or market value, could not normally be replaced by newly purchased items (e.g. wedding rings, engagement rings, family portraits, decorations and medals, etc.). While the actual seizure may be undertaken by the police, the value of these assets will be determined by the Immigration Service. Assets thus seized will be used to pay for the refugee’s maintenance including accommodation, food, healthcare services and the payment of cash benefits up until the end of the calendar month after the refugee is placed into a municipality or removed from Denmark.
This law evoked for many both the specter of past atrocities – piles of jewelry, shoes and other belongings confiscated from Jews during World War II – and indignation about the confiscation of asylum seekers’ last meager possessions – possessions they had protected through who knows what challenges on their journey to Europe. That it was the subject of much criticism was not surprising; what was surprising was that similar legislation in other countries (including Germany and Switzerland) received only a fraction of this attention and that there was an abrupt silence following the initial outrage. While the reasons for the former remain somewhat of a mystery, an analysis of the “Jewelry Law”, its implementation, and its impact reveal that there may be less of a legal basis for challenging the law than initially assumed. As the following legal analysis will suggest, the problem with the “Jewelry Law” may not be so much its illegality as its representation of moral shortcoming in our conception of international protection.
Refugees and the Right to Property: A Legal Analysis of the Jewelry Law
When discussing the international protection of individuals fleeing persecution, the protection of the right to property may seem somewhat inconsequential. Yet, one cannot forget that the possessions and assets that refugees are able to bring with them are often all that is left of their former lives and represent the foundation upon which they must build their futures. It is very important then that the 1951 Convention Relating to the Status of Refugees (CRSR) offers protection to refugees of their right to property that is otherwise unavailable under general international human rights law. This right is protected explicitly under Article 13 of the CRSR (acquisition of movable and immovable property and rights pertaining thereto), and more indirectly under Article 7(1). When read together, these two provisions ensure that refugees are subject to (or benefit from) the customary norms of international aliens’ law. While these norms neither establish a general duty to allow non-citizens to acquire property, nor guarantee a right to be free from property deprivation, they do establish an obligation to provide adequate compensation for any denial of property rights. The right to property under the CRSR arises as soon as refugees are physically present within the territory of the State, but it is somewhat diminished by the fact that Article 13 is a contingent right granting refugees only the often low standard of treatment that is “as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.” Nevertheless, there is an explicit protection of property under international refugee law.
In applying these provisions to the Danish context, it should be noted that there is no evidence that other non-citizens are subjected to similar treatment upon entering Denmark. On the other hand, non-citizens other than asylum seekers are not generally entitled to any of the maintenance or social assistance that refugees claimants receive and for which the assets collected are intended to reimburse the State. Instead, the Danish government has likened the position of refugees to that of members of Danish society seeking social assistance and has justified these provisions by reference to the philosophy of the Danish welfare state which “is based upon the principle that the state will pay for those who cannot take care of themselves, but not for those who can.” Thus under the Danish Act on Active Social Policy, social assistance will not be provided to individuals who have assets which may cover their economic needs over the amount of DKK 10,000 per person and any assets that are necessary to maintain a basic standard of living. On their face, then, the main difference between the legal provisions applicable to asylum seekers in Denmark and the social assistance laws of the country is the manner of their execution. In particular, there does not seem to be a general right of search and seizure without a court order in the context of non-asylum seeking non-citizens, whereas the “Jewelry Law” appears to establish such a right as to asylum seekers.
In addition to the CRSR, Denmark is obliged to recognize a refugee’s right to property under article 1 of Protocol 1 to the European Convention on Human Rights (ECHR). In interpreting this right to property in the case of Sporrong and Lonnroth v. Sweden, the European Court of Human Rights found that Article 1 protects the peaceful enjoyment of property, subjects the deprivation of possessions to certain conditions, and protects the right of States to control the use of property in accordance with the general public interest. In this judgment, the Court also establishes the rule that any interference with the right to property must meet three conditions: it must be prescribed by law, it must be in the public interest, and it must be necessary in a democratic society (proportionality).
Looking to the “Jewelry Law”, the confiscation of assets belonging to refugees certainly meets the first criterion set out in Sporrong and Lonnroth in that the Aliens Act and its associated guidance documents clearly prescribe the confiscation. With respect to the other two criteria, it is more than likely that the Danish government, if challenged before the European Court of Human Rights, would argue that the confiscation is both in the public interest and necessary. This argument has already been raised by a representative of the Danish government before the Civil Liberties Committee of the European Parliament, where the representative argued that, as a percentage of GDP, Denmark is the second highest spender on asylum seekers and that the increase in the number of refugees entering Denmark has had clear economic consequences. The Danish government has also repeatedly asserted that these provisions are in line with what is reasonable under the Danish social welfare state, namely that the State will only help those who are in need of assistance, and is consistent with what is required of Danish citizens and other residents seeking social assistance. Where this argument lacks strength, however, is with respect to the concept of proportionality which the judgment in Sporrong described as requiring a determination of whether a balance has been struck between the general interests of the community and the protection of the individual’s fundamental rights. Such a balance cannot be achieved where an individual has to bear an “excessive burden” compared to other members of society. And so, while other members of the Danish community may be required to relinquish their belongings in order to qualify for social assistance, the fact that refugees are subject to search and seizure, have no choice but to submit to this process if they want their asylum claim heard, and are in a particularly vulnerable position to start with, suggests that the provisions of the “Jewelry Law” do not meet the proportionality test.
Obstacles to a Legal Challenge of the Jewelry Law
So why has there not been any public legal challenge to this legislation given the initial outcry and the available protections for property provided for under international law which refugees might call upon to dispute such a practice of confiscation? One easy explanation for this may be that the Danish “Jewelry Law” was not used to confiscate any belongings or assets from refugees until the June following its enactment. Moreover, it is unclear whether it has been used again since that time.
Another possible explanation is that the legislation itself and the instruments guiding its implementation contain safeguards and conditions so that the likelihood of substantial abuse is minimal and which, in turn, may diminish the likelihood of a successful legal challenge. For instance, the DKK 10,000 limit is per item. Any individual may therefore have in her possession several items that together have a value of over DKK 10,000, but if each item itself is worth less, they cannot be seized. In addition to the limits built into the “Jewelry Law” itself, personal belongings may also be exempted from seizure by the rules set out in the Administration of Justice Act ss. 509-516, for instance if they are necessary to maintain a modest standard of living. Consequently, as they generally arrive with very little, few asylum seekers possess assets that would be subject to seizure under the Danish legislation. Whereas the Bill No. L87 appeared to endow officials with a general power of search and seizure, the implementation guidelines clarify that both the search and seizure must be consented to by the individual. If the individual refuses, the authorities are required to obtain a court order, thus undermining to some extent the argument that the legislation constitutes a violation of due process.
The Burden Sharing Perspective
While the practicalities of the Danish law’s application and implementation may explain why individual challenges are difficult, it does not fully explain the lack of public criticism following the initial outcry, nor does it explain why similar legislation in other countries has not been contested. Germany, the Netherlands and Switzerland among others all have similar provisions in place that are in some instances much harsher and that have been used to far greater effect. Perhaps the real explanation is that while the international community is offended by the manner in which the Danish legislation seeks to strip refugees of their valuables and precious belongings by subjecting them to compulsory search and seizure in the same way as criminals might be, and by the idea of authorities taking away sentimental belongings of refugees, the idea of refugees having to pay a share of the financial “burden” of their presence is one that has a fair degree of support. Even the Dutch Council for Refugees stated that it is “inappropriate to seize people’s personal possessions, but where people genuinely have the means it’s reasonable to bill them for their expenses.”
Although not applicable in Denmark, the EU Reception Conditions Directive provides explicitly for the possibility that asylum seekers may be required to contribute to their own maintenance. Under the Directive, Member States are required to ensure that the material reception conditions guaranteed to applicants provide them with an adequate standard of living. However, Article 17(3) of the Directive allows Member States to “make the provision of all or some of the material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence.” Article 17(4) goes on to provide that, where applicants have sufficient resources to enable their subsistence, for instance when “they have been working for a reasonable period of time”, Member States may require them to contribute to the cost of material reception conditions, or reimburse the State for them later. It appears then that the Directive allows Member States to impose a means test which, on its face, is consistent with the self-sufficiency rationale of Denmark and other countries, (particularly those that require asylum seekers who have been working to remit a portion of their income to the State as in Switzerland) if not with the specific means chosen by Denmark in achieving this end (search and seizure upon arrival).
Rationales in Reality and the Ethical Perspective
Despite the possibility of legal objections, provisions such as the “Jewelry Law” are not clearly impugnable, or at the very least it is an open question as to whether any challenge would be successful. There is also legal support for the policy objective of requiring refugees to subsidise their maintenance. It is worth considering then the question of what the basis of our opposition to provisions such as these might be. Here we enter the grey world of the ethics of legislative intent. Two justifications have been identified for these amendments. First, as noted above, Danish government officials have asserted that requiring refugees who have the means to subsidize the costs of their maintenance is consistent with the rationale of the Danish welfare state. Second, less explicitly stated, is the idea that the amendments contained in Bill L87 are intended to reduce Denmark’s attractiveness as a country of asylum. If Denmark and the other states in question could demonstrate that these legislative provisions were enacted in good faith with the intent of ensuring the highest level of protection for asylum seekers, their legitimacy and legality might cease to be questioned. However, the reality is that the funds collected via these measures are merely a drop in the bucket when compared with the cost of maintaining the refugee population, particularly in countries with policies of compulsory detention or compulsory stays in reception centers. The political effort expended in passing these provisions and defending them against international condemnation can therefore be better explained by the belief that these amendments are not meant to (primarily) reimburse costs but to deter would-be refugee claimants. In the case of Denmark, this seems likely to be the case as supported by the observation that there is little other than deterrence to link the various amendments contained in Bill L87 together, as well as other actions taken by the Danish government. These actions include advertising their increasingly strict immigration requirements in the Lebanese media, tightening the rules for Danish residence in 2015, and the introduction and subsequent renewal of border controls in January 2016.
What these provisions represent then is a clash between what may be legal and politically expedient and what is ethical. These provisions represent yet another example of the increasing conditionality of Europe’s welcome to asylum seekers and the prejudice with which many refugees are greeted, and they echo some of the stereotypes against which asylum seekers must fight, not only in Europe but around the world. For instance, refugees are often required to declare their assets when entering a country. By giving authorities permission to search refugees and their belongings for the purpose of seizing their assets, the Danish government is sending the message that, without any evidence, authorities are presuming that refugees will be dishonest when they declare their assets. Similarly, confiscation of refugee property ignores the reality that in any event those assets would likely be spent within the country for the maintenance of the refugees in question. Few asylum seekers arrive with substantial assets, and it is unlikely that those who do will secret them away and depend wholly on the social assistance provided by the state. We are therefore faced with two conflicting stereotypes: on the one hand is the migrant who is seeking refugee status in order to take advantage of the generosity of European countries, and on the other hand is the destitute asylum seeker who arrives with little more than the clothes on her back and is the object of pity and paternalistic policies.
Perhaps the only true takeaway that we can glean from this discussion and the rise in laws such as Denmark’s is that it is not enough to look at mere legality in today’s world. The legal status of the “Jewelry Law” may be open to question but whether it is deemed lawful or not, the act of searching asylum seekers as they cross the border in order to confiscate possessions that they have managed to salvage from what is left of their former lives is an affront to the concept of shared and inherent human dignity. The absence of challenges or sustained opposition to this legislation highlights the short attention span of the international community. This susceptibility to distraction by the next crisis or news story is one of the factors that has enabled countries around the world to consistently violate the rights of non-citizens (long-term detention, protracted encampment, absence of integration initiatives, failure to provides basics of life, etc.) and places the burden of claiming and enforcing the rights of refugees against states squarely upon the shoulders of those vulnerable populations that are subject to these violations. By failing to challenge states like Denmark, Germany, or Switzerland beyond the first few news cycles on their imposition of conditions upon refugees, the international community has essentially granted tacit approval. This in turn leaves open the possibility for other states to follow in similar footsteps and redefines what is considered the norm in refugee protection. The refugee crisis in Europe undoubtedly represents a great challenge to the region, but the actions that European States like Denmark take today, the legislation they enact, and the policies they implement have the potential to set the tone for the next generation of refugee protection not only throughout the region, but throughout the world. We should therefore consider carefully the grey areas such a crisis is producing.
 While every effort has been made to be as accurate as possible, no up-to-date English or French translation of the Danish legislation exists. As a result, where necessary, the meaning of the Danish legislation has been deduced using google translate and other resources at the author’s disposal.
 German legislation on the reception of asylum seekers has long set out that asylum seekers must declare their assets and may be forced to contribute to the costs of their own reception and maintenance. The manner in which this rule is applied, specifically the level value of assets that asylum seekers are permitted to retain, varies by state in Germany. In Baden-Wurttemberg cash in excess of €350 must be handed over to the police whereas in Bavaria asylum seekers are permitted to retain up to €750. Kees Groenendijk & Steve Peers, Can Member States seize asylum-seekers’ assets?, EU Law Analysis (Jan. 24, 2016), http://eulawanalysis.blogspot.ca/2016/01/can-member-states-seize-asylum-seekers.html; see, e.g., Lizzie Dearden, Germany follows Switzerland and Denmark to seize cash and valuables from arriving refugees, The Independent (Jan. 23 2016), http://www.independent.co.uk/news/world/europe/germany-follows-switzerland-and-denmark-to-seize-cash-and-valuables-from-arriving-refugees-a6828821.html.
 James C. Hathaway, The Rights of Refugees under International Law 522 (2005). For an explanation of the rights held by aliens, see generally Andreas H. Roth, The Minimum Standard of International Law Applied to Aliens (1949).
 Hathaway, supra note 3, at 522.
 This is an English translation provided by the author in reference to Bekendtgørelse af lov om aktiv socialpolitik.
 For additional information on the economic impact of refugees in Europe generally and Denmark specifically, see, e.g., Shekhar Aiyar et al., The Refugee Surge in Europe: Economic Challenges, International Monetary Fund (Jan. 2016), https://www.imf.org/external/pubs/ft/sdn/2016/sdn1602.pdf.