Four reasons to repeal Article 14 of the new law on foreigners:
Recently the Icelandic Parliament passed a package of laws aimed at updating and better defining the rules on immigration and residency for foreign residents. One of these statutes, Article 14, requires all foreigners in Iceland “except Nordic citizens,” to carry undefined “valid proof of the right to reside in Iceland” on their persons at all times, and to show said undefined proof to any police officer who asks for it. Failure to do so constitutes an arrestable offence. Further, this law has been interpreted as granting the police the right to warrantless searches of not only the person in question’s home and belongs, but the homes and belongings of anyone the police suspect of aiding them in their stay in Iceland.
While I personally believe that such laws are always authoritarian overreach, there are at least four very good reasons why this particular law is not only unnecessary, but potentially harmful, and should be repealed at once.
#1: It’s discriminatory and unconstitutional
Any time a law singles out a minority group by limiting their freedoms, civil rights, or civil protections, that law can rightly be called discriminatory.
According to Article 65 of the Icelandic Constitution:
“Everyone shall be equal before the law and enjoy human rights irrespective of sex, religion, opinion, national origin, race, colour, property, birth or other status.”
This law applies only to some foreigners, and not to Icelanders, and I contend that it is therefore unconstitutional.
Furthermore, Article 71 states:
“Everyone shall enjoy freedom from interference with privacy, home, and family life.
Bodily or personal search or a search of a person’s premises or possessions may only be conducted in accordance with a judicial decision or a statutory law provision. This shall also apply to the examination of documents and mail, communications by telephone and other means, and to any other comparable interference with a person’s right to privacy.
Notwithstanding the provisions of the first paragraph above, freedom from interference with privacy, home and family life may be otherwise limited by statutory provisions if this is urgently necessary for the protection of the rights of others.” (emphasis added by author)
There is some debate as to whether or not Icelandic law requires all Icelandic citizens to carry official identification; however, with the exception of providing a valid driver’s license at traffic stops in accordance with the laws on motor vehicles, I can find no accounts of this law being enforced. However in both theory and practice, the Icelandic constitution provides for exceptions to laws that contradict its articles. For instance, Article 71 is often ignored, as when the police routinely misuse the exception based on the urgent necessity for the protection of the rights of others to stop and frisk people they suspect of drug use.
Finally, this law turns Icelandic jurisprudence on its head, by placing the burden of evidence on the accused and not on the accuser, essentially making foreigners in Iceland guilty until proven innocent.
#2: It’s unnecessary
Given that Icelandic police already have in practice, if not in theory, unlimited rights to random searches, and given Iceland’s geographic location and kennitala system make illegal immigration exceedingly difficult for undocumented aliens, why is this law necessary? As undocumented aliens are very unlikely to enter Iceland undetected, this law provides no real improvement on the current system.
Those arriving by air are subject to screening and search on arrival, as are those arriving as passengers by sea, which severely limits the chances of undocumented aliens entering the country undetected. Even if they arrive from a Schengen country, they still have to pass through customs, where the law already grants officers the right to check specific passengers if there is a suspicion of wrongdoing. There have been few, if any cases in recent years of people being trafficked or otherwise entering the country by other means, such as being transported in shipping containers or landing on the coast in the dark of night. If this occurred, there are already laws on the books to deal with it.
#3: It’s ineffective and more likely to cause negative effects
In practice, this law would have very little effect unless vigorously enforced to the extent of maintaining police checkpoints across Iceland, which although distasteful would at least be non-discriminatory. In all likelihood this law will simply lead to increased racial and ethnic profiling by police, whereby individuals who do not look and/or sound ethnically Icelandic or Nordic, even if they possess Icelandic or Nordic citizenship, will be singled out for identification checks and searches. This in turn could lead to worsening of relations between police and ethnic and racial minorities in Iceland. Should this happen, it is likely that non-ethnic Icelanders and those Icelanders close to them—be they flatmates, partners, spouses, or legitimate employers—would be less likely to call emergency services out of fear or annoyance with identification checks. This is a recipe for tragedy.
Article 14 also opens the door to increased complaints against the police, who would have to prove that they were not simply singling out individuals based on their race or ethnicity or perceived citizenship status. It is also worth considering that under this law, any resident foreigner whose passport or wallet is stolen is a de facto criminal, as the police they report the crime to could, should they wish, charge them with being unable to prove their right to be in the country.
#4: It’s dishonest
This law isn’t about protecting Iceland from illegal aliens, it’s about increasing police powers against those who legally seek asylum here in Iceland and those who aid them.
The right to apply for asylum is mandated by The United Nations’ Universal Declaration on Human Rights, which Iceland has ratified, and as such those who apply for asylum are not illegal immigrants, unless their application is denied after due process and they somehow avoid deportation. However, Icelandic nationalists have begun using the term “illegal immigrant” to describe any foreigner, tourists excluded, who enters the country without a pre-issued work permit. Meanwhile, the immigration authorities and the police who enforce their edicts have been encountering increasingly organized resistance to their often illegal (in that they go against Icelandic and/or international law) deportations and raids, and have responded with increasingly harsh regulations, banning the media and most volunteer organizations from visiting asylum seekers’ housing, placing private security in the buildings, and moving housing into increasingly remote locations.
In light of these developments it seems clear that the purpose of this law, no matter how it is worded, is to give police increased powers to track, detain, and harass those they suspect of being asylum seekers as well as to grant them the right to search and disrupt organizations and volunteers who support them.
The alternative solution, and what to do if asked “Papers, please”
While the increasing number of asylum seekers in Iceland is a problem for the government, this law will not help in any way, and may in fact worsen the situation. It should be repealed with all due haste. That being said, if Parliament really wants to lessen the burden on taxpayers, prevent tax fraud, and address the current labour shortage here, they could simply pass a law granting asylum seekers the right to a temporary work permit while their case is under review. Which solves the issue nicely without resort to authoritarianism.
I urge anyone stopped and questioned under this law, particularly Icelandic citizens of foreign origin or descent, to publish the details of their interactions with the police, and to file a complaint of racial or ethnic profiling against the officers involved. Foreign residents can still contact the MP for their area and voice their concerns, whether or not they have citizenship.
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