Questions and answers: Act and Ordinance on identity checks in the event of serious danger to public order or domestic security in the country
In 2015, Sweden received approximately 163 000 asylum applications, around 35 000 of which were from unaccompanied minors. This entails many and major challenges, not just for the Swedish asylum system, which is being subjected to major strains, but also for other public services such as access to housing, health and medical care, schools and social welfare.
The Government has made the assessment that the current situation with the large number of people who have entered the country during a relatively short period of time represents a serious threat to public order and domestic security. The decisions on temporary internal border controls that have been in effect since 12 November 2015 have had some effect, but the Government has also considered it necessary to establish additional preconditions for measures that, if necessary, can be used to maintain public order and domestic security. This is necessary to ensure that fundamental societal functions are not completely knocked out of action.
Act and ordinance
The Act on special measures in the event of serious danger to public order or domestic security entered into force on 21 December 2015. The Act gives the Government the authority (makes it possible for the Government) to issue an ordinance ordering that ID checks are to be carried out in connection with travel by bus, train or passenger ship to Sweden from another state. Such measures may be taken in order to maintain law and order or to protect national security.
The Government has adopted an Ordinance containing specific provisions on ID checks for travel to Sweden from Denmark. The Ordinance applies as of 4 January 2016 and is in effect for six months. It can be repealed earlier if the Government considers that the situation has improved. It can also be further extended, following a two-week waiting period, if there are grounds to do so.
Questions and answers:
1. What does the Act entail?
The Act allows the Government, in the event of serious danger to public order or domestic security, to introduce ID checks for travel by bus, train or passenger ship to Sweden from abroad, in order to maintain law and order or to protect national security. The Act entered into force on 21 December 2015. The Act is temporary and applies for three years from the date it entered into force, i.e. until 21 December 2018. Within this period of time, provisions on ID checks pursuant to the Act may apply for six months at a time, with a waiting period of two weeks between each time.
2. Why should the Government be allowed to implement such measures?
It is necessary to establish preconditions for additional measures that, if necessary, can be used to maintain law and order or protect national security. In situations where there is serious danger to public order or domestic security, it must be possible to quickly take relevant measures. It should therefore be possible for the Government to take decisions ordering such measures. Requiring ID checks will improve the chances of identifying the people entering Sweden. The checks have led to a reduction in the number of people seeking asylum in Sweden. The measures have had a positive impact on the ability to maintain order and security and reduce the general pressure on societal functions.
3. What conditions are required for the Government to be able to introduce ID checks?
If a serious danger to public order or domestic security has arisen, the Government may issue regulations that result in the introduction of some ID checks for the purpose of maintaining law and order or protecting national security.
4. From what date do the provisions on ID checks apply?
The Ordinance on certain identity checks in the event of serious danger to public order or domestic security has been in force since 4 January 2016.
5. For how long will the provisions apply?
The Ordinance will apply for six months, in other words until 3 July 2016. Prior to that, the Government can decide to repeal the provisions on ID checks if conditions change and there no longer is a serious threat to public order or domestic security in the country.
6. What is the Government's view on disruptions to traffic across Öresund?
The Government understands that many commuters are concerned and frustrated by the ID checks. At the same time there is understanding that Sweden must take action to maintain public order in the country. Certain adjustments in rail traffic across Öresund Bridge have been made due to the ID checks. The Government takes the problems that this entails for commuters very seriously. The Government is following developments closely and is maintaining a close dialogue with relevant carriers, public authorities and the Danish Government to see how the situation develops.
7. What traffic is affected?
The Act covers train and bus connections, and travel by passenger ship to Sweden from abroad, i.e. cross-border traffic. However, the Act does allow the possibility of limiting any ID checks to travel from a specific country. The Ordinance covers bus or train transportation from Denmark, and transportation on passenger ships making trips of 20 nautical miles or shorter. This means that bus and rail services over Öresund Bridge are included, as are the ferries between Helsingör and Helsingborg.
8. Why does this only apply to passenger ships making trips of less than 20 nautical miles?
Passenger ships making trips of more than 20 nautical miles are already covered by the provisions of the Government Ordinance on Ship Safety concerning registration of individuals on board, which include checks of identity documents.
9. How do these ID checks work in practice? How will this affect transport companies?
ID checks are carried out by carriers for passengers who want to enter Sweden. This is done in various ways, such as by showing ID documents when checking tickets or by separate ID checks. Checks can be made before letting the passenger on board or during the trip. The provisions of the Ordinance do not regulate how the checks are to be carried out in detail, which means it is up to the carriers to decide how they will be implemented in practice.
10. Are the checks to be carried out by the carrier's own employees?
The Ordinance does not contain any provisions on the purely practical details of how the checks are to be carried out. They could be done by the carrier's own employees or by temporary employees. The practical details of implementation have been left to the carriers.
11. What happens if the carriers do not fulfil their obligations?
As a rule, a financial penalty of SEK 50 000 will be charged to a carrier that cannot show that ID checks have been carried out. Under certain conditions, financial penalties that have been charged can be waived or reduced by the Swedish Transport Agency.
12. Why aren't internal border controls enough?
Based on status reports from the Swedish Civil Contingencies Agency and other sources, it has been considered for some time that the current situation poses a threat to public order and domestic security. The temporary border controls at internal borders are only carried out at certain places and partially through spot checks. More measures therefore needed to be taken.
13. Can Sweden take action in Denmark?
Even if carriers are required to carry out checks, any supervisory measures will only be applicable in Sweden.
14. Why has the Government not chosen to use the agreement drawn up between Denmark and Sweden in 1999 in connection with the building of the bridge and lay the responsibility for ID checks on the police rather than the carriers?
Having carriers contribute to preventing entry to Sweden without certain documents is nothing new, nor is it particularly unusual. Rules on a carrier's responsibility have existed in Swedish law since the beginning of the twentieth century. The Government considers that the best solution in this case is to let the carriers take responsibility for the ID checks. This assessment has not been influenced by any formal obstacles or possibilities associated with action on the part of the police.
15. Was such a short preparation time necessary?
The preparation time was short, as this was necessary due to the existing conditions. During the preparation time, the Government had contact with the relevant actors, both carriers and public authorities, and it became apparent that they would manage despite the short preparation time.
16. Will the State reimburse carriers for any additional costs resulting from the ID checks?
The reason why the decision on ID checks was taken is that the Government considered that important societal functions were threatened.
The fundamental principle regarding cost increases resulting from legislation is that the relevant actors are to cover their own costs. Similar examples include security-related regulations or taxes on fuel. In the case of these ID checks, carriers are specifically affected by the costs solely because they provide traffic services within a certain geographical area, and there is therefore reason to evaluate the impact. At the same time this must be carefully analysed, not least from a state aid perspective and in light of the EU regulatory framework that Sweden must take account of. The Government intends to closely monitor developments.
17. How are the carriers to know what constitutes a valid ID document?
The idea is not to require a specific type of ID document, but rather identity documents containing identity data and a photograph. Furthermore, some carriers already issue personal tickets where a requirement for ID documents is included in the conditions for travel. In addition, in internal guidelines regarding their own supervision of carriers, the Swedish Police have provided examples of documents that the Police consider valid.
18. Do children need to have ID documents?
Under the Ordinance children will not need to present an ID document if they are travelling with a parent who can identify themselves.
19. What will happen to unaccompanied minors who are unable to present an ID document?
It will be up to the carrier to instruct them to seek help in the country they are in.
20. What will happen to Swedish citizens who for some reason cannot present an ID document when entering Sweden?
There is a Nordic consular agreement on direct cooperation between Nordic authorities. Swedish citizens who experience problems leaving Denmark when they are en route to Sweden can therefore contact the Danish police. There is no requirement to carry a passport when travelling within the Nordic region and this is why no provisional passports are issued by the Swedish Embassy in Copenhagen for travel from Denmark to Sweden.
21. What will happen if someone has no ID document but wants to apply for asylum?
The EU's refugee policy is based on the idea that an asylum seeker should seek asylum in the first safe country the asylum seeker comes to. Those affected by ID checks are already in safe countries and there is nothing to prevent them from applying for asylum there.
22. Won't this lead to a situation where asylum seekers and other migrants are shuffled around between different European countries?
We have a situation in which refugees are not being registered. As a result, responsibility is already being shuffled around between EU countries now. More countries must do their share.
23. Won't ID checks lead to asylum seekers perhaps hitching a ride to Sweden over the bridge instead?
It is possible that ID checks may lead to people seeking other ways to get to Sweden. However, anyone helping an individual to enter Sweden illegally may be prosecuted for human smuggling.
24. What are the authorities doing?
The relevant authorities are working continually in their own areas of activity and are in close dialogue with the Government.
25. Does EU law allow Sweden to introduce ID checks?
EU law does not prevent a Member State from taking necessary measures to maintain law and order and protect domestic security if a real and sufficiently serious threat exists that affects one of society's fundamental interests. The Act on special measures in the event of serious danger to public order or domestic security specifically aims to ensure public order and domestic security in the country.
26. Are the provisions compatible with the right of asylum?
ID checks on buses, trains and passenger ships when travelling to Sweden are a matter of checking the ID documents of passengers who are travelling from other EU countries. The EU's provisions in the area of asylum are based on the idea that an asylum seeker should seek asylum in the first safe country the asylum seeker comes to. The provisions of the Act or the Ordinance now adopted do not prevent a person present in this country from seeking asylum here. Accordingly, the provisions are not in conflict with the right of asylum.