Supreme Court: Deportee’s freedom of movement violated

In a precedent-setting case, the Supreme Court rules that Immigration Services must assess whether it is proportional to put sentenced deportees under strict living conditions

The Supreme Court ruled today that the demands placed on an Iranian man by the Immigration Services, following his conviction and sentence to deportation, broke his right to free movement under the European Convention on Human Rights.

The court’s verdict states that the decision by the Immigration Services to force 41-year-old Elias Karkavandi to live around the clock at Sandholm Asylum Centre and report to the police three times a week to be “a non-proportional encroachment into his freedom of movement. The decision must therefore be considered invalid.”

In 2005, Karkavandi was sentenced to 18 months imprisonment and deportation to Iran, his country of origin, after being convicted of working as a police lookout for drug dealers inside the commune of Christiania.

After serving his sentence, Karkavandi sought asylum out of fear of persecution should he be returned to Iran. But while his case was dismissed, it was established that he could not be deported due to the risk of harm he might face should he be returned.

As a result, Karkavandi existed in a perpetual state of being prepared for a deportation that would not occur. In 2009, the Immigration Services placed him under a regimen called tålt ophold in which he was forced to remain at the Sandholm Asylum Centre and report to the police three times a week.

Karkavandi and his lawyer, Christian Dahlager, argued that the regimen violated his rights to life and liberty, freedom from discrimination and the right to free movement. The Supreme Court found against the first two, but did judge that tålt ophold violated his right to free movement.

Karkavandi arrived in Denmark in 1993 after leaving Iran in the mid-80s and spending several years in Sweden. He has a brother with Danish citizenship and was found by the Immigration Services to be well integrated into the job market and capable of speaking Danish.

He was never considered either a flight risk or a risk to the state and his conviction in 2005 was his first.

Despite this, four out of a panel of six judges in his original case sentenced him to a ten-year ban on entering Denmark after his conviction.

The conditions for tålt ophold were tightened in 2008 in order to ensure greater surveillance over individuals that had been sentenced to deportation, often because they were deemed to be a threat to the state, but could not be deported due to the risks they faced in their country of origin.

Dansk Folkeparti said they were disappointed by the outcome of the case, as it lessened the pressure on foreign criminals sentenced to deportation.

“The incentive to leave Denmark will be reduced and that's disappointing,” DF’s integration spokesperson, Martin Henriksen, told public broadcaster DR. He added that it was problematic that an international convention prevents Denmark from dealing with foreign criminals as it chooses.

“These people are sentenced to deportation and they shouldn’t be running around Denmark.”

Coincidentally, the government is currently carrying out a consultation on tålt ophold though the justice minister, Morten Bødskov (Socialdemokraterne) said that they had no plans to change the law.

“I would like to repeat that people on tålt ophold are, as a matter of principle, not wanted in the country,” Bødskov told DR. “They should therefore be deported from Denmark as soon as possible.”

Before the verdict, Dahlager had said that the outcome could set a precedent for the approximately 30 other individuals under tålt ophold in Denmark. This message was picked up the deputy head of the Radikale, Zenia Stampe.

“Elias has beat the state,” she wrote on Facebook. “It has now been established that proportionality has to be considered, also in cases of tålt ophold. Oh thank you human rights!”

The Immigration Services was ordered to pay 100,000 kroner in court costs to the Danish state.

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