Danish child to be evacuated from the Roj camp in Syria with his mother

Case no. BS-24837/2024-HJR
Judgment delivered on 29 August 2024

Repatriate the Children – Denmark acting for
B as the guardian of A
vs.
Ministry of Foreign Affairs

A, who is a Danish citizen, was born in Syria in 2016. He is the child of B and a deceased man who was allegedly affiliated with Islamic State. Since the spring of 2019, A has been detained in the al-Hol camp and later in the Roj camp in north-eastern Syria with his mother. 

B, who was born in Denmark, was registered with Somali citizenship at birth. In 2001, she acquired Danish citizenship, and when she was around five, she left for Great Britain and has not lived in Denmark since then. In June 2014, when she was 16, she travelled to Syria where she joined Islamic State. The Danish Security and Intelligence Service (the PET) assessed that she had not participated in combat in Syria, but that she had undertaken activities that had contributed to maintaining and consolidating Islamic State’s position in the area. The PET had also stated that she had probably received weapons training and obtained combat experience during her stay in Syria. Based on this and other information, the Danish Ministry of Immigration and Integration withdrew B’s Danish citizenship in 2020. 

In 2019, B’s sister, who lived in Denmark, contacted the Ministry of Foreign Affairs, asking for help to locate and repatriate A and B, which the Ministry refused with reference to the Danish Government’s position that it would not assist in the repatriation of prisoners in the Syrian prison camps. In May 2021, the Ministry of Foreign Affairs notified A and B’s lawyer in Denmark that the Government had decided to offer to evacuate the Danish children from the camps in north-eastern Syria. Three mothers with Danish citizenship were given an offer of evacuation with their children. The other children, including A, was told that they could be evacuated without their mothers subject to their mothers’ consent. 

At the time of the Supreme Court’s ruling, all the other Danish children in the camps had been evacuated with their mothers.

The case before the Supreme Court concerned firstly whether the Ministry of Foreign Affairs is obliged to offer A, who is now 8 years old, assistance to leave the Roj camp in north-eastern Syria and travel to Denmark with his mother. 

The Supreme Court found that the case involved such exceptional circumstances that the Danish authorities are obliged under the European Convention on Human Rights to take measures ensuring that A’s right to enter Denmark is practical and effective without imposing an unreasonable or disproportionate burden on the authorities. Based on the information in the case, the Supreme Court based its assessment on the fact that A had no real possibility of being evacuated to Denmark without his mother.

Also, the Supreme Court stated that according to the case-law of the European Court of Human Rights, the national authorities must ensure that due consideration is had to, among other things, the best interests of the child and the child’s particular vulnerability and specific needs. 

It did not appear from the decision to offer to evacuate A with is mother how the best interests of A and his specific vulnerability and needs had been considered in the basis for the decision. It was also not clear whether the authorities had performed a specific and individual assessment of the consideration for A weighed against, among other things, the security assessments.

The information on A’s particularly vulnerable situation and the unambiguous recommendation from the Danish Health Authority were clear arguments in favour of offering him assistance for evacuation with his mother as soon as possible. 

With regard to the security assessments, the Supreme Court stated that according to information from the PET, B had been radicalised and could pose a security threat. However, the Supreme Court did not deem this security threat to be higher than that associated with the repatriation of other women from the camps. 

Based on an overall assessment of the case, the Supreme Court held that it would not be a disproportionate burden to offer A assistance to evacuate with his mother, and that it would amount to an infringement of the Convention not to offer such assistance.

Against this background, the Supreme Court ruled that the Ministry of Foreign Affairs must recognise that A must be offered assistance to evacuate with his mother, B. 

The High Court had reached a different conclusion.