Notification, residence and information duties

Case no. 21/2024
Judgment delivered on 27 September 2024

The Prosecution Service
vs.
T

Defendant’s failure to comply with control duties while travelling outside Denmark not punishable

T, a stateless Palestinian from Syria, was granted asylum in Denmark in November 2014. In November 2020, he was sentenced to imprisonment for 30 days for committing violence covered by section 244(1), cf. section 81, para 7, of the Danish Criminal Code, and was further expelled from Denmark with a six-year entry ban. As a result of the expulsion, his residence permit was withdrawn. 

In April 2021, the Danish Return Agency imposed notification, residence and information duties on T, and he was charged with violating these control duties in the period from 31 May 2021 up to and including 4 January 2023.

By judgment of the High Court, T was sentenced for violation of the control duties in the period from 31 May 2021 to 30 August 2021, when he was in Denmark, but acquitted for the period from 8 September 2021 up to and including 4 January 2023, when he was not in Denmark. The High Court gave importance to the fact that during the latter period, T had first been in Sweden and then in Germany, where he applied for asylum with his wife and children with a view to taking up permanent residence there. He was sentenced to prison for six months and expelled from Denmark with a six-year entry ban. 

The main question at issue before the Supreme Court was whether there was legal basis under the Danish Act regarding the Return of Foreign Nationals with No Leave to Stay for punishing T for failing to comply with the control duties imposed on him in the period when he had not stayed in Denmark.

According to section 1(1) of the Act, aliens with no leave to stay in Denmark under parts 1 and 3-5 of the Danish Aliens Act must leave the country. In the legislative history of the Act, it is stated, among other things, that ‘leave’ means that the alien must leave Danish territory, and that the purpose of the Act is to provide the authorities with the tools necessary to ensure that aliens who do not (or no longer) have leave to stay on Danish territory leave the country. In addition, it is explained that the control duties were introduced to motivate aliens who do not leave Denmark as ordered to cooperate in the processing of their case and in their departure.

Against this background, the Supreme Court held that there is no legal basis in section 23(1) of the Act regarding the Return of Foreign Nationals with No Leave to Stay, cf. section 1 of the Criminal Code, to punish an expelled alien for violating the control duties imposed when that person has left Denmark to take up permanent residence in another country.

As the High Court had considered that T had travelled to Sweden and then to Germany to take up permanent residence there, the Supreme Court held that T could not be punished for failing to comply with the control duties imposed on him in the period when he had not stayed in Denmark.

Accordingly, T was only found guilty of violation of the control duties in the period from 31 May 2021 to 30 August 2021, during which he was in Denmark. The Supreme Court based its sentence on the fact that T could have been granted asylum immediately after the High Court’s judgment in November 2020 in the previous criminal case on the violence committed by T and, thus, also in the subsequent period when he was subject to control duties. In addition, after the High Court’s judgment in the present case on violation of the control duties, the Danish Return Agency had decided that T should no longer be subject to control duties, just as he had once again been granted asylum. He was thus sentenced to imprisonment for four months. T was also expelled from Denmark with a six-year entry ban.