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Executive Order on Rules of Procedure for the Danish Immigration Appeals Board

Pursuant to section 52 a (10) of the Danish Aliens Act, see Consolidation Act No. 863 of 25 June 2013 as amended by Act No. 1617 of 26 December 2013, the following is laid down:

Part 1

Composition and organisation of the Immigration Appeals Board; appointment of members

Composition and organisation

1. (1) The Immigration Appeals Board is composed of a chairman, deputy chairmen and other members.

(2) The Chairman must be a High Court judge or a Supreme Court judge, and the Deputy Chairmen must be judges. The other members must be attorneys or serve with the Ministry of Justice or the Ministry of Employment.

2. When the Immigration Appeals Board considers an appeal, the Immigration Appeals Board consists of the chairman or a deputy chairman, an attorney and a member serving with the Ministry of Justice if the appeal concerns a matter falling within the sphere of the Ministry of Justice, or a member serving with the Ministry of Employment if the appeal concerns a matter falling within the sphere of the Ministry of Employment, see sections 13 and 40.

3. The Chairman and the Deputy Chairmen constitute the Executive Committee of the Immigration Appeals Board. The tasks to be undertaken by the Executive Committee are set out in sections 14 to 17.

4. The Coordination Committee of the Immigration Appeals Board must be composed as provided by rule 2 and must consist of permanent members as far as possible. The tasks of the Coordination Committee are set out in section 18.

Appointment and discontinuation as a member of the Immigration Appeals Board

5. (1) The members of the Immigration Appeals Board are appointed by the Executive Committee of the Immigration Appeals Board. The judges are appointed upon nomination by the president of the relevant court. The attorneys are appointed upon nomination by the Council of the Danish Bar and Law Society (Advokatrådet). The members serving with the Ministry of Justice are appointed upon nomination by the Minister of Justice, and the members serving with the Ministry of Employment are appointed upon nomination by the Minister of Employment.

(2) Appointments are made at a meeting of the Executive Committee of the Immigration Appeals Board (Executive Committee meeting), or following submission in writing to the individual members of the Executive Committee. For this purpose, the secretariat of the Immigration Appeals Board shall draw up a list of all appointed members and member nominees and submit it to the Executive Committee. Following the Executive Committee meeting or the written submission, the secretariat shall draw up records of the appointments made by the Executive Committee, stating –

(i) which members were appointed upon such submission, if possible through reference to the enclosed list of appointed members and member nominees;

(ii) the term of appointment; and

(iii) particular matters discussed concerning the appointments.

(3) The members of the Immigration Appeals Board are appointed for a term of four years.

(4) Board members are eligible for re-appointment for an additional term of four years. Subsequently, members cannot be re-appointed. If the Chairman of the Immigration Appeals Board is re-appointed, he shall retain his position as Chairman. Prior to expiry of a term of appointment, the secretariat of the Immigration Appeals Board shall ask all the Board members who are eligible for re-appointment whether they want to be re-appointed. In case of re-appointment, the procedure set out in paragraph (2) hereof must be observed.

6. (1) A member shall retire from the Immigration Appeals Board when the conditions for appointment of that member are no longer met. Membership of the Immigration Appeals Board will also cease when a member retires at his own request. Release from the duties as a member of the Immigration Appeals Board is granted by the Chairman. The Executive Committee must be notified thereof at an Executive Committee meeting.

(2) If, for a period, a member of the Immigration Appeals Board is granted leave from the position that was a prerequisite of his appointment, the Chairman of the Immigration Appeals Board shall similarly grant the member leave from his duties as a member of the Immigration Appeals Board for the same period.

Election of Chairman

7. (1) The Executive Committee of the Immigration Appeals Board shall elect a chairman among the members who are High Court judges or Supreme Court judges.

(2) The Chairman must be elected at an Executive Committee meeting. If more than one member wants to contest the chairmanship, the Chairman must be elected by secret ballot among the members present. Absent members may vote by written proxy. The Chairman is elected by simple majority. After the Executive Committee meeting, the secretariat of the Immigration Appeals Board shall draw up records of the election, stating –

(i) the names of the members who wanted to contest the chairmanship;

(ii) the names of the members voting in person and the names of the members who voted by written proxy; and

(iii) the name of the member elected Chairman.

Ad hoc appointment and substitution

8. (1) The Chairman of the Immigration Appeals Board may authorize one or, if necessary, several of the Deputy Chairmen to take his place permanently or on an ad hoc basis.

(2) The Chairman, or the person so authorized by the Chairman, may, on an ad hoc basis, appoint a former member of the Board to deliberate in a case in whose consideration the member has previously participated.

(3) If a member is prevented from participating, the Chairman, or the person so authorized by the Chairman, may designate or appoint another member, on an ad hoc basis, to replace the member in question during the continued consideration of the case (substitution). Substitution is not permitted in cases heard orally. Cases where reasons of due process of law make it appropriate must be considered at another Board meeting.

(4) The Chairman may also authorize one or, if necessary, several of the Deputy Chairmen to take a Deputy Chairman’s place permanently or on an ad hoc basis if such a Deputy Chairman is prevented from participating.

Part 2

Powers of the Immigration Appeals Board

9. (1) Appeals against the following decisions made by the Danish Immigration Service can be made to the Immigration Appeals Board:

(i) Refusals of applications for a residence permit under sections 9, 9 d or 9 f of the Danish Aliens Act.

(ii) Refusals of applications for a residence permit under section 9 c (1) of the Danish Aliens Act, except refusals given under the EU rules.

(iii) Refusals of applications for renewal of a residence permit issued under sections 9, 9 c (1), 9 d or 9 f of the Danish Aliens Act, see section 9 (1) (i) and (ii), including decisions on lawful excuse, see section 9 (30) and section 9 f (5) of the Danish Aliens Act, and decisions revoking such residence permits, see section 11 (2) and section 19 of the Danish Aliens Act.

(iv) Refusals of applications for a permanent residence permit, see section 11 of the Danish Aliens Act.

(v) Decisions refusing to accept the submission of applications for a residence permit under section 9 (21), 9 c (6) or 9 f (8) of the Danish Aliens Act, see section 9 (1) (i) and (ii), and decisions refusing applications for a residence permit, see section 47 b of the Danish Aliens Act.

(vi) Decisions on expulsion under section 25 (1) (ii) or sections 25 a to 25 c of the Danish Aliens Act.

(vii) Decisions on refusal of entry under section 28 of the Danish Aliens Act.

(viii) Decisions on age determination in connection with an application for a residence permit under section 9 or section 9 c (1) of the Danish Aliens Act as a result of family ties with a person living in Denmark.

(ix) Decisions on lawful excuse, see section 9 (32) of the Danish Aliens Act.

(x) Decisions on revoking a re-entry ban, see section 32 (7) and (9) of the Danish Aliens Act.

(xi) Decisions on aliens’ passports.

(2) Appeals against the following decisions made by the Danish Agency for Labour Market and Recruitment can also be made to the Immigration Appeals Board:

(i) Refusals of applications for a residence permit under section 9 a or sections 9 i to 9 n of the Danish Aliens Act.

(ii) Refusals of applications for renewal of a residence permit issued under section 9 a or sections 9 i to 9 n of the Danish Aliens Act, and decisions revoking such a residence permit, see section 19 of the Danish Aliens Act.

(iii) Decisions refusing to accept the submission of applications for a residence permit under section 9 a (4), 9 i (2), 9 j (2), 9 k (2), 9 l (2), 9 m (2) or 9 n (2) of the Danish Aliens Act.

(iv) Decisions on expulsion under section 25 b (2) of the Danish Aliens Act, see section 46 (2), second sentence, of the Danish Aliens Act.

(3) Appeals against findings made by the Danish Immigration Service to the effect that a residence permit issued under section 9, 9 c (1), 9 d or 9 f of the Danish Aliens Act has lapsed, see section 17 of the Danish Aliens Act, that a residence permit issued under section 9 or 9 c (1) of the Danish  Aliens Act, see section 17 a of the Danish Aliens Act, has lapsed, or that a residence permit has lapsed under section 18 of the Danish Aliens Act, can be made to the Immigration Appeals Board. The same applies to appeals against refusals of applications from aliens claiming that a residence permit should not be considered lapsed, see sections 17 (3) and 17 a (2) of the Danish Aliens Act.

(4) Appeals against findings made by the Danish Agency for Labour Market and Recruitment to the effect that a residence permit issued under section 9 a or sections 9 i to 9 n of the Danish Aliens Act has lapsed, see sections 17 and 18 of the Danish Aliens Act, can be made to the Immigration Appeals Board. The same applies to appeals against refusals of applications from aliens claiming that a residence permit should not be considered lapsed, see section 17 (3) of the Danish Aliens Act.

(5) Appeals against decisions on refusal of entry made by the police can also be made to the Immigration Appeals Board, see section 28 (1) to (4) of the Danish Aliens Act.

Part 3

Activities of the Immigration Appeals Board

Chairman of the Immigration Appeals Board

10. (1) The Chairman represents the Immigration Appeals Board.

(2) The Chairman shall sign contributions to replies to Parliamentary questions, replies to inquiries from intergovernmental bodies, etc., opinions to the Parliamentary Ombudsman and the like on behalf of the Immigration Appeals Board.

11. With the assistance of the secretariat, the Chairman shall plan the activities of the Immigration Appeals Board and determine the meeting dates, see sections 22 to 26 for details.

12. Ad hoc appointments and substitutions are effected as determined by the Chairman, see section 8.

13. The Chairman, or the person so authorized by the Chairman, may, on behalf of the Board, –

(i) dismiss an appeal lodged after the expiry of the time limit for appeal or decide to grant an exemption from the time limit for appeal, see section 27;

(ii) dismiss an appeal not falling within the powers of the Immigration Appeals Board;

(iii) decide to suspend the time limit for departure, see section 33 (3) of the Danish Aliens Act;

(iv) consider appeals that do not concern issues of major significance or matters of principle;

(v) remit a case to the Danish Immigration Service or the Danish Agency for Labour Market and Recruitment; and

(vi) refuse a request for reconsideration of a decision made by the Immigration Appeals Board when there is no reason to assume that the Board will revise its decision.

Executive Committee of the Immigration Appeals Board

14. The Chairman of the Immigration Appeals Board is elected by the Executive Committee, see section 7.

15. Members of the Immigration Appeals Board are appointed by the Executive Committee, see section 5.

16. The Executive Committee shall regularly discuss issues of importance to the activities of the Immigration Appeals Board.

17. The Executive Committee shall submit an annual report on the activities of the Immigration Appeals Board. The report must be made public.

Coordination Committee of the Immigration Appeals Board

18. The Coordination Committee shall discuss issues relating to the general guidelines for the future activities of the Immigration Appeals Board, including guidelines for determining whether cases of a particular type concern issues of major significance or matters of principle, see section 13 (4), and matters of general importance to the activities of the Board, including, in particular, issues relating to –

(i) possible criteria and circumstances of fact that may be included in the decision made by the individual Board in specific types of cases, including matters concerning the procurement of general background material and matters concerning the adjournment or initiation of other procedural steps as a consequence thereof;

(ii) the significance of recent case law and relevant legislation;

(iii) responses to consultations on new legislation; and

(iv) the need to follow up on statements concerning the case processing time at the Board.

19. The Coordination Committee shall hold meetings at suitable intervals at the initiative of the Chairman or on request from another member of the Coordination Committee. Meetings are summoned by the secretariat according to the authority of the Chairman. Secretariat staff will attend meetings. The secretariat shall prepare minutes of decisions made at meetings, which are to be circulated to the members of the Immigration Appeals Board following approval by the participants.

20. Decisions of the Coordination Committee are made by simple majority.

Secretariat of the Immigration Appeals Board

21. The Ministry of Justice shall make secretariat assistance available to the Immigration Appeals Board.

22. The secretariat shall assist the Chairman of the Immigration Appeals Board in planning the activities of the Board and determining meeting dates.

23. When a decision has been appealed to the Immigration Appeals Board, the secretariat shall verify that the Danish Immigration Service or the Danish Agency for Labour Market and Recruitment has forwarded the documents of the case to the Board. The secretariat shall also acknowledge receipt of the appeal and notifies the appellant whether the appeal suspends the time limit for departure.

24. (1) The secretariat shall review cases and assess whether to request a statement from the Danish Immigration Service, the Danish Agency for Labour Market and Recruitment or others, and whether to consult the parties on the occasion of the appeal.

(2) The secretariat shall recommend to the Chairman of the Immigration Appeals Board whether the case proceedings should be oral or in writing, or the case should be determined by the Chairman or one of the Deputy Chairmen alone. The Chairman of the Board may authorize the secretariat to be in charge of the allocation of cases.

(3) The secretariat shall schedule the number of cases for the individual Board meeting which it is possible to deal with within the time available, taking into consideration the speedy handling of the cases, their nature and their proper consideration.

(4) In cases to be heard orally, the secretariat shall summon the applicant for the Board meeting by ordinary letter at a notice of normally 14 days. The same applies to other persons that the Immigration Appeals Board may decide to summon, see section 31 (2) and (3). A person may be summoned in a different manner in special cases.

(5) If necessary, the secretariat shall, for the Board meeting, summon an interpreter capable of interpreting into and from the applicant’s native language, or if not possible, another language spoken by the applicant. Afterwards the interpreter shall send an invoice to the Board, and as far as interpreters with a VAT number are concerned it must be an e-invoice. Time spent and travelling time as well as refund of transport expenses or car allowance must be approved by the person so authorized by the Chairman of the Immigration Appeals Board.

(6) Invoices for written translations requested by the Board must be sent to the secretariat of the Immigration Appeals Board as e-invoices. The number of lines translated must be approved by the person so authorized by the Chairman of the Immigration Appeals Board.

25. The secretariat shall regularly update the website of the Immigration Appeals Board, www.udln.dk, by uploading for instance selected summaries of Board decisions, overviews of case law and other information of relevance to the activities of the Immigration Appeals Board.

26. The secretariat shall assist the individual Board and its chairman by examining legal problems, preparing overviews of case law, preparing case summaries and draft decisions, drafting consultative questions and consultation requests, etc.

Time limit for appeal

27. (1) Appeals against decisions which can be made to the Immigration Appeals Board must be submitted within eight weeks of the date of notification of the decision to the party.

(2) The time limit for appeal is reckoned from the date when the decision has reached the party.

(3) Pursuant to section 13 (1) (i), the Chairman, or the person so authorized by the Chairman, may decide to grant an exemption from the time limit for appeal. The assessment of whether to grant an exemption may take into account the period of time by which the time limit was exceeded, the reason for exceeding the time limit, the significance of the decision to the parties to the case and the probability that the Immigration Appeals Board will find in favour of the appellant.

Appeal fee

28. (1) To submit an appeal against a decision falling within section 9 h (2), second sentence, of the Danish Aliens Act, the appellant must pay a fee of DKK 795 (2014 level) on or before the submission of the appeal unless otherwise provided by the EU rules. The same applies to the submission of a request for the reopening of an appeal falling within the first sentence hereof, see section 9 h (2), third sentence, of the Danish Aliens Act. The amount of the fee will be adjusted once a year, see section 9 h (6) of the Danish Aliens Act.

(2) A fee under paragraph (1), first sentence, hereof will be repaid if the appeal is allowed in full or in part, and a fee under paragraph (1), second sentence, hereof will be repaid if the request for reopening is granted, see section 9 h (3), second and third sentences, of the Danish Aliens Act.

(3) The appeal or request for reopening will be dismissed if the condition of paragraph (1) hereof has not been met, see section 9 h (5) of the Danish Aliens Act.

Board proceedings

29. (1) Decisions of the Immigration Appeals Board are made at Board meetings on the basis of written briefs, see sections 13, 31 and 40.

(2) Proceedings are oral. The Chairman or one of the Deputy Chairmen shall chair the meetings.

30. The meetings of the Immigration Appeals Board are not public.

31. (1) The parties to the case do not have access to Board meetings, but see paragraph (2) hereof.

(2) Where particular reasons make it appropriate, the Immigration Appeals Board may, however, decide to summon the applicant and other parties (hereinafter a ‘party’) to a Board meeting. It is not possible to summon a party not staying legally in Denmark. The decision as to whether a case is to be heard orally will be made when cases are allocated, see section 24 (2).

(3) The Board may further decide to summon other persons for an oral hearing if in special cases it is deemed that information may be provided that cannot be obtained from written briefs.

(4) A party summoned for an oral hearing is not entitled to assignment of counsel.

(5) The Board will decide whether, if very particular reasons make it appropriate, any third parties, including a person supporting the applicant or a family member of his, may attend the oral hearing.

(6) The chairman of the individual Board shall inform the persons attending the hearing that the Board has acquainted itself with the written material of the case, including any pleading from the party, and that the Board’s oral hearing of the case will thus concern the requisite elaboration or clarification of the circumstances of the case.

(7) The Board decides whether to examine the party and other persons, see paragraph (3) hereof, and whether other evidence should be obtained. As chairman of the meeting, the chairman of the individual Board may disallow questions and oral pleadings from the party or his representative relating or referring to matters already known or matters of no importance to the case.

32. If a party fails to attend an oral hearing without a lawful excuse, the case will be determined on the basis available. If a party has a lawful excuse, the case will be adjourned. If a case has been heard by the Board without the party’s attendance on the basis available, and it turns out subsequently that the party had a lawful excuse, the case will be reopened for another oral hearing.

33. (1) If the party has not been duly summoned for an oral hearing, see section 24 (4), and the party has not otherwise been notified of the summons, a new date will be determined for the hearing, and the party will be summoned again.

(2) If the Board has heard the case and it is established subsequently that it is not the party’s responsibility that the summons did not reach the party, the case will be reopened for another oral hearing.

34. If a case is to be considered in writing, the individual Board shall determine the case at a meeting on the basis of the written material, including any statement from the Danish Immigration Service or the Danish Agency for Labour Market and Recruitment as well as pleadings from the applicant and others.

35. During the consideration of a case by the Immigration Appeals Board, the chairman of the individual Board may decide that no documents or other evidence may be produced that could have been produced during the examination of the case by the Danish Immigration Service or the Danish Agency for Labour Market and Recruitment.

36. (1) Decisions of the Immigration Appeals Board are made by simple majority. The Board’s deliberations are confidential.

(2) If a minority has voted for adjourning the determination of the case, but the majority has decided to determine the appeal, the minority shall participate in the determination of the case.

37. Immediately after the end of deliberations, a case note on the result of the deliberations must be made. A dissenting member may require that a short reason for his viewpoint be added to the case note. The case note must be sent to the members of the Immigration Appeals Board for their information. The case note is confidential.

38. (1) A decision must be delivered to the party as soon as possible after the end of deliberations, see paragraph (3) hereof. The decision must be signed by the chairman of the individual Board or by the person so authorized by the Chairman.

(2) A copy of the decision must be sent to the Danish Immigration Service or the Danish Agency for Labour Market and Recruitment to ensure that the authorities comply with the decision of the Immigration Appeals Board, including by laying down detailed conditions for a residence permit or assessing whether the other conditions for the issuance of a residence permit have been met. A copy of any decision ordering an applicant to leave the country can be sent to the police with a request to perform departure control if it is assessed that an applicant will not observe the time limit for departure determined.

(3) A decision made at an oral hearing must be written down after the end of deliberations and sent to the party or his representative as soon as possible.

39. (1) If the consideration of a case is adjourned, the Board shall make its decision at a meeting, possibly at a conference call, or by deliberations in writing without holding a Board meeting.

(2) If a case is to be determined by deliberations in writing, the members of the Board other than the Chairman and Deputy Chairmen of the Immigration Appeals Board shall give their votes in the case within a time limit determined by the secretariat and normally not exceeding 14 days. If the time limit is exceeded, the secretariat shall remind the member of the case. Following hearing of the member concerning the cause, serious instances of exceeded time limits may be reported to the Chairman of the Immigration Appeals Board.

40. The chairman of the individual Board may decide to remit a case to the Danish Immigration Service or the Danish Agency for Labour Market and Recruitment.

Reopening of cases

41. In case of a request for reopening not falling within section 13 (6), the Chairman, or the person so authorized by the Chairman, shall decide –

(i) that the Board which decided the case shall decide on the reopening of the case at a meeting, possibly at a conference call, or by deliberations in writing;

(ii) that the case is to be reopened and considered at a Board meeting by the Board which decided the case; or

(iii) that the case is to be reopened and considered at a meeting of a new Board.

42. A request for reopening does not suspend enforcement of the time limit for departure unless the Chairman, or the person so authorized by the Chairman, so decides. If the time limit for the applicant’s departure has been exceeded, a request for reopening does not suspend the time limit for departure unless exceptional reasons make it appropriate.

43. During the consideration of a request for reopening by the Immigration Appeals Board, the chairman of the individual Board may decide that no documents or other evidence may be produced that could have been produced during the previous examination of the case by the Danish Immigration Service, the Danish Agency for Labour Market and Recruitment or the Board.

Part 4

Miscellaneous provisions

44. (1) This Executive Order comes into force on 10 June 2014.

(2) Executive Order No. 1208 of 14 December 2012 on Rules of Procedure for the Danish Immigration Appeals Board is repealed.

 

Immigration Appeals Board, 4 June 2014

Michael Kistrup

/ Michael Lohmann Kjærgaard

 

Senest opdateret: 15-10-2014

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