Immigration cases

Under the Aliens Act, the immigration authorities may without consent pass data on foreign citizens to PET and the Danish Defence Intelligence Service (DDIS), to the extent that it may be of importance to the intelligence services’ ability to perform security-related tasks.

Information about a foreign citizen may be of particular relevance to PET if there are circumstances indicating that the person in question is involved in terror-related activities, has links to certain foreign intelligence and security services or criminal organisations, or has been involved in war crimes, arms trafficking or proliferation of arms.

According to certain more specified criteria, PET receives certain immigration cases (asylum, residence and visa cases) in order to carry out an assessment of whether a foreign citizen must be seen as a threat to national security. PET has briefed the immigration authorities on the types of information that may be of special interest to the service. These criteria are assessed and adjusted on an ongoing basis by PET. Furthermore, matters relating to the granting of a citizenship are submitted to PET.

Expulsion of foreign citizens in the interest of national security
Section 25 of the Danish Aliens Act makes it possible to expel a foreign citizen from Denmark, if the person in question is deemed a threat to the security of the state. The decision to expel may be made by means of an administrative order or a sentence passed by a judge in connection with a criminal trial.

Cases relating to the administrative expulsion of foreign citizens in the interest of national security may e.g. be initiated where PET has obtained information through its investigation that gives reason to suspect the foreign citizen of committing a crime under Chapter 12 or 13 of the Danish Criminal Code, but where the information is of such a nature that it cannot be made public during a criminal trial in deference to foreign partners, PET’s work methods or PET’s sources and ongoing investigations.

The regard for national security as laid down in Section 25 of the Aliens Act comprises in particular the interests that are protected by Chapters 12 and 13 of the Danish Criminal Code, i.e. offences against the independence and security of the state as well as offences against the constitution and the supreme authorities of the state, terrorism, etc. However, the wording does not exclude that there may also be other interests of great societal importance that can be taken into consideration when applying the provision.
In relation to administrative decisions regarding expulsion in the interest of national security, section 45b (1) of the Aliens Act stipulates that it is the Minister of Justice who is to assess whether a foreign citizen must be deemed a threat to national security. The assessment is carried out on the basis of a recommendation from PET. If the Minister of Justice decides that the foreign citizen must be deemed a threat to national security, the immigration authorities must decide whether the person in question is to be expelled in accordance with section 25 of the Aliens Act.

In connection with the processing of a case in accordance with section 45b, the Minister of Justice may decide that the information resulting in the assessment may not, for security reasons, be passed on to the foreign citizen or the immigration authority responsible for reaching a decision in the case, cf. section 45b (2).
Both the decision concerning the risk assessment and the decision of the immigration authorities regarding expulsion may be brought before the courts.Through an amendment of the Aliens Act in 2009, new regulations regarding the treatment by the courts in these matters were introduced.

The possibility of keeping information secret is vital to PET’s activities. This includes the co-operation with foreign intelligence services and other partners and is, thus, a fundamental precondition for effective action to prevent and fight terrorism. Among other things, these considerations are the reason why the new procedural rules in the Aliens Act retain a provision whereby the information or parts of the information that have provided the basis for the assessment that a foreign citizen must be deemed a threat to national security can be withheld from the person in question.
The new regulations have had the effect that the judicial review of a case can be divided into an open and a closed part. The information PET can declassify is presented in the open part of the case when e.g. the consideration for partners of the service does not speak against the information being made known to the foreign citizen in question. The foreign citizen participates together with his or her lawyer in the open part of the case.

If it becomes necessary during a case to present classified information, e.g. information originating from foreign intelligence services, this may take place during the closed part, where those present are the three judges deciding on the matter, the representative of the Minister of Justice and a specially appointed lawyer who represents the foreign citizen. Under the new procedure, the three judges are thus presented with all the information that has warranted the risk assessment.

In addition, regulations have been introduced whereby the court, on its own initiative or in response to a request by the specially appointed lawyer, may decide that information which the prosecution wishes to present during the closed part of the case is to be transferred to the open part. The provision applies to situations where the court, based on a concrete assessment, finds that there are no security reasons to justify the information in question being withheld from the foreign citizen. In such cases, the information must be presented in the open part and, as such, in the presence of the foreign citizen, or PET may choose to withdraw the information from the case. If PET chooses to withdraw the information, the case must be tried in front of other judges.
If a decision is reached that a foreign citizen is deemed a threat to national security, the person in question will, as a general rule, have his or her residence permit revoked and be deported to the country he or she is a citizen of. However, a foreign citizen who is expelled from Denmark must not be deported to a country where he or she is at risk of being subjected to torture, etc., and as a consequence, situations may arise where a foreign citizen who is deemed a threat to national security cannot be deported to his or her own home country. In such cases, the Danish immigration authorities can allow a foreigner to remain on sufferance in Denmark. This means that the foreigner becomes subject to a number of control procedures, including accommodation at a specific location and a duty of notification.