Order made on 2 May 2018
National Police, Denmark
No basis for continuing to detain an Iraqi citizen who did not have lawful residence in this country and refused to cooperate in the efforts to return him to Iraq
A, who did not have lawful residence in Denmark, refused to cooperate in the efforts to return him to his home country of Iraq. Because A did not accept expulsion, the Iraqi authorities refused to cooperate in his forced return. A had been remanded in custody since 29 March 2017 in accordance with the Danish Aliens Act. The case concerned the issue whether he should continue to be held in custody under the rules of the Aliens Act on remanding in custody of an alien without lawful residence, among other things with a view to encouraging him to cooperate in the return efforts. An alien may be remanded in custody for up to 18 months, and the rules must be interpreted in accordance with the EU Return Directive.
The Supreme Court considered that the conditions for continuing to hold A in custody had not been met in the present situation where A continued to refuse to consent to expulsion. There was nothing to suggest that continuing to hold A in custody would cause him to change his mind, just as the Iraqi authorities’ position implied that there was no prospect of expelling A without his consent. As there was no information on effective expulsion efforts that indicated that the deadlocked situation could be resolved and the process advanced before the expiry of the absolute deadline for releasing A, the Supreme Court held that A should be released.
The High Court had reached the opposite conclusion.