UUI, Alm.del - 2015-16 - Bilag 215: Orientering om behandlingen af konkrete sager om ægtefællesammenføring (Biao mod Danmark) m.v., fra udlændinge-, integrations- og boligministeren

Udlændinge-, Integrations- og Boligudvalget 2015-16
UUI Alm.del Bilag 215
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GRAND CHAMBER

CASE OF BIAO v. DENMARK

(Application no. 38590/10)

JUDGMENT

STRASBOURG

24 May 2016

This judgment is final but it may be subject to editorial revision.

UUI, Alm.del - 2015-16 - Bilag 215: Orientering om behandlingen af konkrete sager om ægtefællesammenføring (Biao mod Danmark) m.v., fra udlændinge-, integrations- og boligministeren UUI, Alm.del - 2015-16 - Bilag 215: Orientering om behandlingen af konkrete sager om ægtefællesammenføring (Biao mod Danmark) m.v., fra udlændinge-, integrations- og boligministeren

BIAO v. DENMARK JUDGMENT

In the case of Biao v. Denmark,

The European Court of Human Rights, sitting as a Grand Chamber

composed of:

Işıl Karakaş,

President,

Dean Spielmann,

Josep Casadevall,

Mark Villiger,

Boštjan M. Zupančič,

Ján Šikuta,

George Nicolaou,

Ledi Bianku,

Ganna Yudkivska,

Vincent A. De Gaetano,

Paulo Pinto de Albuquerque,

André Potocki,

Helena Jäderblom,

Paul Mahoney,

Ksenija Turković,

Iulia Antoanella Motoc,

Jon Fridrik Kjølbro,

judges,

and Lawrence Early,

Jurisconsult,

Having deliberated in private on 1 April 2015 and 22 February 2016,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 38590/10) against the

Kingdom of Denmark lodged with the Court on 12 July 2010 under

Article 34 of the Convention for the Protection of Human Rights and

Fundamental Freedoms (“the Convention”) by Mr Ousmane Biao (the first

applicant), a Danish national, and his wife Ms Asia Adamo Biao (the

second applicant), a Ghanaian national.

2. The applicants were represented by Mr Steen Petersen, a lawyer

practising in Copenhagen. The Danish Government (“the Government”)

were represented by their Agent, Mr Jonas Bering Liisberg, of the Ministry

of Foreign Affairs, and their Co-agent, Ms Nina Holst-Christensen, of the

Ministry of Justice.

3. The applicants alleged that the refusal by the Danish authorities to

grant them family reunion in Denmark was in breach of Article 8, taken

alone and in conjunction with Article 14 of the Convention.

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BIAO v. DENMARK JUDGMENT

4. The application was allocated to the Second Section of the Court

(Rule 52 § 1 of the Rules of Court). On 25 March 2014, a Chamber

composed of Guido Raimondi, President, Peer Lorenzen, András Sajó,

Nebojša Vučinić, Paul Lemmens, Egidijus Kūris, Robert Spano, judges, and

Stanley Naismith, Section Registrar, delivered its judgment. It declared the

application admissible and held, unanimously, that there had been no

violation of Article 8 of the Convention, and by four votes to three, that

there had been no violation of Article 14 read in conjunction with Article 8.

A concurring opinion by G. Raimondi and R. Spano and a dissenting

opinion by A. Sajó, N. Vučinić, and E. Kūris were annexed to the judgment.

5. On 23 June 2014 the applicants requested that the case be referred to

the Grand Chamber in accordance with Article 43 of the Convention, and

the panel of the Grand Chamber accepted the request on 8 September 2014.

6. The composition of the Grand Chamber was determined according to

the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. At

the final deliberations, Helena Jäderblom and Iulia Antoanella Motoc,

substitute judges, replaced Elisabeth Steiner and Päivi Hirvelä, who were

unable to take part in the further consideration of the case (Rule 24 § 3).

7. The applicants and the Government each filed further written

observations (Rule 59 § 1) on the merits.

8. In addition, third-party comments were received from Advice on

Individual Rights in Europe (“the AIRE Centre”), which had been granted

leave by the President of the Grand Chamber to intervene in the written

procedure (Article 36 § 2 of the Convention and Rule 44 § 2).

9. A hearing took place in public in the Human Rights Building,

Strasbourg, on 1 April 2015 (Rule 59 § 3).

There appeared before the Court:

(a)

for the Government

Mr J

ONAS

ERING

IISBERG

, Ministry of Foreign Affairs,

Ms N

INA

OLST

-C

HRISTENSEN

, Ministry of Justice,

Mr K

UNDING

, Ministry of Justice,

Mr A

NDERS

ERPING

IELSEN

, Ministry of Justice,

Mr M

ARTIN

ANG

, Ministry of Foreign Affairs,

Ms M

ARIA

VIAJA

ANDER

OLM

, Ministry of Justice,

(b)

for the applicants

Mr S

TEEN

ETERSEN

, lawyer,

Mr N

IELS

-E

RIK

ANSEN

Mr H

ENRIK

ARL

IELSEN

Agent,

Co-agent

Advisers;

Counsel,

Advisers.

The Court heard addresses by Mr Bering Liisberg and Mr Petersen as

well as their replies to questions from judges.

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BIAO v. DENMARK JUDGMENT

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

10. The applicants were born, respectively, in 1971 in Togo and in 1979

in Ghana. They live in Malmö, Sweden.

11. The first applicant lived in Togo until the age of 6 and again briefly

from the age of 21 to 22. From the age of 6 to 21 he lived in Ghana with his

uncle. He attended school there for ten years and speaks the local language.

On 18 July 1993, when he was 22 years old, he entered Denmark and

requested asylum, which was refused by a final decision of 8 March 1995.

12. In the meantime, on 7 November 1994, he had married a Danish

national. Having regard to his marriage, on 1 March 1996, by virtue of the

former section 9, subsection 1(ii), of the Aliens Act (Udlændingeloven) he

was granted a residence permit, which became permanent on

23 September 1997.

13. On 25 September 1998 the first applicant and his Danish wife got

divorced.

14. On 22 April 2002 the first applicant acquired Danish citizenship. At

the relevant time he met the requirements set out in the relevant circular

relating to the length of his period of residence (at least nine years), age,

general conduct, arrears owed to public funds and language proficiency.

15. On 22 February 2003 the first applicant married the second applicant

in Ghana. He had met her during one of four visits to Ghana made in the

five years prior to their marriage.

16. On 28 February 2003, at the Danish Embassy in Accra, Ghana, the

second applicant requested a residence permit for Denmark with reference

to her marriage to the first applicant. At that time she was 24 years old. She

stated that she had never visited Denmark. Her parents lived in Ghana. On

the application form, the first applicant submitted that he had not received

any education in Denmark, but had participated in various language courses

and short-term courses concerning service, customer care, industrial

cleaning, hygiene and working methods. He had been working in a

slaughterhouse since 15 February 1999. He had no close family in

Denmark. He spoke and wrote Danish. The spouses had come to know each

other in Ghana and they communicated between themselves in the Hausa

and Twi languages.

17. At the relevant time, under section 9, subsection 7, of the Aliens Act

family reunion could be granted only if both spouses were over 24 years old

and their aggregate ties to Denmark were stronger than the spouses’

attachment to any other country (the so-called attachment requirement).

18. On 1 July 2003 the Aliens Authority (Udlændingestyrelsen) refused

the residence permit request because it found that it could not be established

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BIAO v. DENMARK JUDGMENT

that the spouses’ aggregate ties to Denmark were stronger than their

aggregate ties to Ghana.

19. In July or August 2003 the second applicant entered Denmark on a

tourist visa.

20. On 28 August 2003 she appealed against the Aliens Authority’s

decision of 1 July 2003, to the then Ministry for Refugees, Immigration and

Integration (Ministeriet

for Flygtninge, Indvandrere og Integration).

The

appeal did not have suspensive effect.

21. On 15 November 2003 the applicants moved to Malmö, Sweden,

which since 1 July 2000 has been connected to Copenhagen in Denmark by

a 16 km bridge (Øresundsforbindelsen).

22. By Act no. 1204 of 27 December 2003, section 9, subsection 7, of

the Aliens Act was amended so that the attachment requirement was lifted

for persons who had held Danish citizenship for at least 28 years (the

so-called 28-year rule –

28-års reglen).

Persons born or having arrived in

Denmark as small children could also be exempted from the attachment

requirement, provided they had resided lawfully there for 28 years.

23. On 6 May 2004 the applicants had a son. He was born in Sweden but

is a Danish national by virtue of his father’s nationality.

24. On 27 August 2004 the Ministry for Refugees, Immigration and

Integration upheld the decision by the Aliens Authority of 1 July 2003 to

refuse to grant the second applicant a residence permit. It pointed out that in

practice, the residing person was required to have stayed in Denmark for

approximately twelve years, provided that an effort had been made to

integrate. In the case before it, it found that the applicants’ aggregate ties to

Denmark were not stronger than their ties to Ghana and that the family

could settle in Ghana, as that would only require that the first applicant

obtain employment there. In its assessment, it noted that the first applicant

had entered Denmark in July 1993 and had been a Danish national since

22 April 2002. He had ties with Ghana, where he had been raised and had

attended school. He had visited the country four times in the past six years.

The second applicant had always lived in Ghana and had family there.

25. On 18 July 2006, before the High Court of Eastern Denmark (Østre

Landsret),

the applicants instituted proceedings against the Ministry for

Refugees, Immigration and Integration and relied on Article 8 of the

Convention, alone and in conjunction with Article 14 of the Convention,

together with Article 5 (2) of the European Convention on Nationality. They

submitted, among other things, that it amounted to indirect discrimination

against them when applying for family reunion, that persons who were born

Danish citizens were exempt from the attachment requirement altogether,

whereas persons who had acquired Danish citizenship at a later point in life

had to comply with the 28-year rule before being exempted from the

attachment requirement. In the present case that would entail that the first

applicant could not be exempted from the attachment requirement until

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BIAO v. DENMARK JUDGMENT

2030, thus after 28 years of Danish citizenship, and after reaching the age

of 59.

26. In a judgment of 25 September 2007 the High Court of Eastern

Denmark unanimously found that the refusal to grant the applicants family

reunion with reference to the 28-year rule and the attachment requirement

did not contravene the Articles of the Convention or of the European

Convention on Nationality relied upon. It stated as follows:

“...the facts given in the decisions of the immigration authorities in the case are

found not to be in dispute.

Accordingly, [the second applicant] who is a Ghanaian national, was thus 24 years

old when she applied for a residence permit on 28 February 2003, and she had no ties

with Denmark other than her recent marriage to [the first applicant]. [The second

applicant] had always lived in Ghana and had family there. [The first applicant] had

some ties with Ghana, where he had lived with his uncle while attending school in

Ghana for ten years. He entered Denmark in 1993 at the age of 22 and became a

Danish national on 22 April 2002. [The applicants] married in Ghana on

22 February 2003 and have lived in Sweden since 15 November 2003 with their child,

born on 6 May 2004. [The first applicant] has told the High Court that the family can

settle lawfully in Ghana if he obtains paid employment in that country.

It appears from a Supreme Court judgment of 13 April 2005, reproduced on page

2086 in the Danish Weekly Law Reports (Ugeskrift

for Retsvæsen)

for 2005, that

Article 8 of the Convention does not impose on the Contracting States any general

obligation to respect immigrants’ choices as to the country of their residence in

connection with marriage, or otherwise to authorise family reunion.

In view of the information on [the applicants’] situation and their ties with Ghana,

the High Court accordingly finds no basis for setting aside the Respondent’s decision

establishing that [the applicants’] aggregate ties with Ghana were stronger than their

aggregate ties with Denmark and that [the applicants] therefore did not meet the

attachment requirement set out in section 9, subsection 7, of the Aliens Act. In this

connection, the High Court finds that the refusal did not bar [the applicants] from

exercising their right to family life in Ghana or in a country other than Denmark. The

fact that [the first applicant] is able to reside in Ghana only if he obtains paid

employment there is found not to lead to any other assessment. Accordingly, the High

Court holds that the decision of the Ministry did not constitute a breach of Article 8 of

the Convention.

Although the High Court has held that Article 8 of the Convention has not been

breached in this case, the High Court has to consider [the applicants’] claim that,

within the substantive area otherwise protected by Article 8, the decision of the

Ministry constituted a breach of Article 14 read in conjunction with Article 8 of the

Convention.

The High Court initially observes that [the first applicant] had been residing in

Denmark for 11 years when the Ministry issued its decision. Although he acquired

Danish nationality in 2002, nine years after entering Denmark, he did not meet the

28-year nationality requirement applicable to all Danish nationals pursuant to

section 9, subsection 7 of the Aliens Act, irrespective of whether they are of foreign or

Danish extraction. Nor did he have the comparable attachment to Denmark throughout

28 years which will generally lead to an exemption from the attachment requirement

according to the preparatory work of the 2003 statutory amendment.

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BIAO v. DENMARK JUDGMENT

The 28-year rule is a generally-worded relaxation of the attachment requirement

based on an objective criterion. In practice, however, the rule may imply that a Danish

national of foreign extraction will only meet the 28-year rule later in life than would

be the case for a Danish national of Danish extraction. When applied, the rule may

therefore imply an indirect discrimination.

According to the relevant explanatory report, Article 5 of the European Convention

on Nationality must be taken to mean that Article 5 § 1 concerns the conditions for

acquiring nationality while Article 5 § 2 concerns the principle of non-discrimination.

According to the report, it is not a mandatory rule that the Contracting States are

obliged to observe in all situations. Against that background, Article 5 is considered to

offer protection against discrimination to an extent that goes no further than the

protection against discrimination offered by Article 14 of the Convention.

The assessment of whether the refusal of the Ministry implied discrimination

amounting to a breach of Article 14 read in conjunction with Article 8 of the

Convention is accordingly considered to depend on whether the difference in

treatment which occurred as a consequence of the attachment requirement in spite of

nationality can be considered objectively justified and proportionate.

According to the preparatory work of the Act, the overall aim of the attachment

requirement, which is a requirement of lasting and strong links to Denmark, is to

regulate spousal reunion in Denmark in such a manner as to ensure the best possible

integration of immigrants in Denmark, an aim which must in itself be considered

objective. In the view of the High Court, any difference in treatment between Danish

nationals of Danish extraction and Danish nationals of foreign extraction can therefore

be justified by this aim as regards the right to spousal reunion if a Danish national of

foreign extraction has no such lasting and strong attachment to Denmark.

The balancing of this overall consideration relating to the specific circumstances in

the case requires a detailed assessment. The High Court finds that the assessment and

decision of the Ministry were made in accordance with section 9(7) of the Aliens Act

and the preparatory work describing the application of the provision. Accordingly,

and in view of the specific information on [the first applicant’s] situation, the High

Court finds no sufficient basis for holding that the refusal by the Ministry to grant a

residence permit to [the second applicant] with reference to the attachment

requirement of the Aliens Act implies a disproportionate infringement of [the first

applicant’s] rights as a Danish national and his right to family life. The High Court

therefore finds that the decision of the Ministry was not invalid, and that it was not

contrary to Article 14 read in conjunction with Article 8 of the Convention.”

27. The applicants appealed against the judgment to the Supreme Court

(Højesteret), which delivered its judgment on 13 January 2010 upholding

the High Court judgment.

28. The Supreme Court, composed of seven judges, found, unanimously,

that it was not in breach of Article 8 of the Convention to refuse the second

applicant a residence permit in Denmark. It stated as follows:

“In its decision of 27 August 2004, the Ministry of Integration refused the

application from [the second applicant] for a residence permit on the grounds that the

aggregate ties of herself and her spouse [the first applicant] with Denmark were not

stronger than their aggregate ties with Ghana (see section 9, subsection 7, of the

Aliens Act).

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BIAO v. DENMARK JUDGMENT

[The applicants] first submitted that the refusal was unlawful because it was

contrary to Article 8 of the European Convention on Human Rights. If the refusal was

not contrary to Article 8, they submitted as their alternative claim that it was contrary

to the prohibition against discrimination enshrined in Article 14 read in conjunction

with Article 8, for which reason they were eligible for family reunion in Denmark

without satisfying the attachment requirement set out in section 9(7) of the Act.

For the reasons given by the High Court, the Supreme Court upholds the decision

made by the Ministry of Integration that it is not contrary to Article 8 to refuse [the

second applicant’s] application for a residence permit.”

29. Moreover, the majority in the Supreme Court (four judges) found

that the 28-year rule was in compliance with Article 8 of the Convention

read in conjunction with Article 14 of the Convention. They stated as

follows:

“Pursuant to section 9, subsection 7, as worded by Act No. 1204 of

27 December 2003, the requirement that the spouses’ or cohabitants’ aggregate ties

with Denmark must be stronger than their aggregate ties with another country (the

attachment requirement) does not apply when the resident has been a Danish national

for 28 years (the 28-year rule).

Until 2002, Danish nationals had had a general exemption from the attachment

requirement. Act No. 365 of 6 June 2002 tightened the conditions of family reunion,

one of the consequences being that the attachment requirement would subsequently

also apply to family reunion where one of the partners was a Danish national. One of

the reasons for extending the attachment requirement to include Danish nationals also

given in the preparatory work (on page 3982 of Schedule A to the Official Gazette for

2001 to 2002 (2nd session)) is that there are Danish nationals who are not particularly

well integrated in Danish society and for this reason the integration of a spouse newly

arrived in Denmark may entail major problems.

It quickly turned out that this tightening had some unintended consequences for

persons such as Danish nationals who had opted to live abroad for a lengthy period

and who had started a family while away from Denmark. For that reason, the rules

were relaxed with effect from 1 January 2004 so that family reunion in cases where

one of the partners had been a Danish national for at least 28 years was no longer

subject to satisfaction of the requirement of stronger aggregate ties with Denmark.

According to the preparatory work in respect of the relaxation, the Government

found that the fundamental aim of tightening the attachment requirement in 2002 was

not forfeited by refraining from demanding that the attachment requirement be met in

cases where the resident had been a Danish national for 28 years (see page 49 of

Schedule A to the Official Gazette for 2003 to 2004). It is mentioned in this

connection that Danish expatriates planning to return to Denmark one day with their

families will often have maintained strong ties with Denmark, which have also been

communicated to their spouse or cohabitant and any children. This is so when they

speak Danish at home, take holidays in Denmark, read Danish newspapers regularly,

and so on. Thus, there will normally be a basis for successful integration of Danish

expatriates’ family members into Danish society.

Persons who have not been Danish nationals for 28 years, but were born and raised

in Denmark, or came to Denmark as small children and were raised here, are normally

also exempt from the attachment requirement when they have stayed lawfully in

Denmark for 28 years.

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BIAO v. DENMARK JUDGMENT

A consequence of this current state of the law is that different groups of Danish

nationals are subject to differences in treatment in relation to their possibility of being

reunited with family members in Denmark, as persons who have been Danish

nationals for 28 years are in a better position than persons who have been Danish

nationals for fewer than 28 years.

According to the case-law of the European Court of Human Rights, nationals of a

country do not have an unconditional right to family reunion with a foreigner in their

home country, as factors of attachment may also be taken into account in the case of

nationals of that country. It is not in itself contrary to the Convention if different

groups of nationals are subject to statutory differences in treatment as regards the

possibility of obtaining family reunion with a foreigner in the country of their

nationality.

In this respect, reference is made to paragraph 88 of the judgment delivered by the

European Court of Human Rights on 28 May 1985 in the case of

Abdulaziz, Cabales

and Balkandali v. the United Kingdom.

In this case the Court found that it was not

contrary to the Convention that a person born in Egypt who had later moved to the

United Kingdom and become a national of the United Kingdom and Colonies was

treated less favourably as regards the right to family reunion with a foreigner than a

national born in the United Kingdom or whose parent(s) were born in the United

Kingdom. The Court said in that respect: ‘It is true that a person who, like

Mrs Balkandali, has been settled in a country for several years may also have formed

close ties with it, even if he or she was not born there. Nevertheless, there are in

general persuasive social reasons for giving special treatment to those whose links

with a country stem from birth within it. The difference of treatment must therefore be

regarded as having had an objective and reasonable justification and, in particular, its

results have not been shown to transgress the principle of proportionality.’ The Court

then held that Mrs Balkandali was not a victim of discrimination on the ground of

birth.

As regards Mrs Balkandali, who was a national of the United Kingdom and

Colonies, it was not contrary to the Convention to make it an additional requirement

for family reunion that she must have been born in the United Kingdom. A different

additional requirement is made under Danish law: a requirement of Danish nationality

for 28 years. The question is whether [the first applicant] is subjected to

discrimination contrary to the Convention owing to this criterion.

We find that the criterion of 28 years of Danish nationality has the same aim as the

requirement of birth in the United Kingdom, which was accepted by the Court in the

1985 judgment as not being contrary to the Convention: to distinguish a group of

nationals who, seen from a general perspective, had lasting and strong ties with the

country.

In general, a person of 28 years who has held Danish nationality since birth will

have stronger real ties with Denmark and greater insight into Danish society than a

28-year-old person who – like [the first applicant] – only established links with

Danish society as a young person or an adult. This also applies to Danish nationals

who have stayed abroad for a shorter or longer period, for example in connection with

education or work. We find that the 28-year-rule is based on an objective criterion, as

it must be considered objectively justified to select a group of nationals with such

strong ties with Denmark when assessed from a general perspective that it will be

unproblematic to grant family reunion with a foreign spouse or cohabitant in Denmark

as it will normally be possible for such spouse or cohabitant to be successfully

integrated into Danish society.

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BIAO v. DENMARK JUDGMENT

Even though it is conceivable that a national who has had Danish nationality for

28 years may in fact have weaker ties with Denmark than a national who has had

Danish nationality for a shorter period, this does not imply that the 28-year rule

should be set aside pursuant to the Convention. Reference is made to the case, relative

to the then applicable additional British requirement of place of birth considered by

the European Court of Human Rights, of a national who was not born in the United

Kingdom, but who had in reality stronger ties with the United Kingdom than other

nationals who satisfied the requirement of place of birth, but had moved abroad with

their parents at a tender age or maybe had even been born abroad. It is noted in this

respect that it was sufficient to satisfy the then British requirement of place of birth

for only one of the relevant person’s parents to have been born in the United

Kingdom.

We also find that the consequences of the 28-year rule cannot be considered

disproportionate relative to [the first applicant]. [He] was born in Togo in 1971 and

came to Denmark in 1993. After nine years’ residence, he became a Danish national

in 2002. In 2003 he married [the second applicant] and applied for reunion with his

spouse in Denmark. The application was finally refused in 2004. The factual

circumstances of this case are thus in most material aspects identical to

Mrs Balkandali’s situation assessed by the Court in its judgment in 1985, when the

Court found that the principle of proportionality had not been violated. She was born

in Egypt in 1946 or 1948. She first went to the United Kingdom in 1973 and obtained

nationality of the United Kingdom and Colonies in 1979. She married a Turkish

national Bekir Balkandali in 1981, and their application for spousal reunion in the

United Kingdom for the husband of a British national was refused later in 1981. A

comparison of the two cases reveals that both [the first applicant] and Mrs Balkandali

only came to Denmark and the United Kingdom, respectively, as adults. In [the first

applicant’s] case, the application was refused when he had resided in Denmark for

11 years, two of which as a Danish national. In Mrs Balkandali’s case, the application

was refused after she had resided in the United Kingdom for eight years, two of which

as a British national.

On these grounds we find no basis in case-law to find that the 28-year rule implied

discrimination against [the first applicant] contrary to the Convention.

As regards the significance of the European Convention on Nationality of

6 November 1997, we find for the reasons stated by the High Court that it cannot be a

consequence of Article 5 § 2 of this Convention that the scope of the prohibition

against discrimination based on Article 14 read in conjunction with Article 8 of the

European Convention of Human Rights should be extended further than justified by

the 1985 judgment.

We hold on this basis that the refusal of residence for [the second applicant] given

by the Ministry of Integration cannot be set aside as being invalid because it is

contrary to Article 14 read in conjunction with Article 8 of the European Convention

of Human Rights.

For this reason we vote in favour of upholding the High Court judgment.”

30. A minority of three judges were of the view that the 28-year rule

implied indirect discrimination between persons who were born Danish

citizens and persons who had acquired Danish citizenship later in life. Since

persons who were born Danish citizens would usually be of Danish ethnic

origin, whereas persons who acquired Danish citizenship at a later point in

their life would generally be of foreign ethnic origin, the 28-year rule also

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BIAO v. DENMARK JUDGMENT

entailed indirect discrimination between ethnic Danish citizens and Danish

citizens with a foreign ethnic background. More specifically, they stated as

follows:

“As stated by the majority, the requirement of section 9, subsection 7, of the Aliens

Act that the spouses’ or cohabitants’ aggregate ties with Denmark must be stronger

than their aggregate ties with another country (the attachment requirement) does not

apply when the resident person has been a Danish national for 28 years (the

28-year rule).

The 28-year rule applies both to persons born Danish nationals and to persons

acquiring Danish nationality later in life, but in reality the significance of the rule

differs greatly for the two groups of Danish nationals. For persons born Danish

nationals, the rule only implies that the attachment requirement applies until they are

28 years old. For persons not raised in Denmark who acquire Danish nationality later

in life, the rule implies that the attachment requirement applies until 28 years have

passed after the date when any such person became a Danish national. As an example,

[the first applicant] who became a Danish national at the age of 31, will be subject to

the attachment requirement until he is 59 years old. The 28-year rule therefore implies

that the major restriction of the right to spousal reunion resulting from the attachment

requirement will affect persons who only acquire Danish nationality later in life far

more often and with a far greater impact than persons born with Danish nationality.

Hence, the 28-year rule results in obvious indirect difference in treatment between the

two groups of Danish nationals.

The vast majority of persons born Danish nationals will be of Danish ethnic origin,

while persons acquiring Danish nationality later in life will generally be of other

ethnic origin. At the same time, the 28-year rule therefore implies obvious indirect

difference in treatment between Danish nationals of Danish ethnic origin and Danish

nationals of other ethnic origin regarding the right to spousal reunion.

Pursuant to section 9, subsection 7, of the Aliens Act, the attachment requirement

may be disregarded if exceptional reasons make this appropriate. According to the

preparatory work of the 2003 Act, this possibility of exemption is to be administered

in such a manner that aliens who were born and raised in Denmark or who came to

Denmark as small children and were raised here must be treated comparably to

Danish nationals, which means that they will be exempt from the attachment

requirement when they have lawfully resided in Denmark for 28 years. However,

relative to persons who were not raised in Denmark, but acquire Danish nationality

later in life, this does not alter the situation described above concerning the indirect

difference in treatment implied by the 28-year rule.

When the attachment requirement was introduced by Act No. 424 of 31 May 2000,

all Danish nationals were exempt from the requirement. Act No. 365 of 6 June 2002

made the attachment requirement generally applicable also to Danish nationals.

Concerning the reason for this, the preparatory work in respect of the Act states,

inter

alia:

‘With resident aliens and Danish nationals of foreign extraction it is a

widespread marriage pattern to marry a person from their country of origin, among

other reasons due to parental pressure ... The Government find that the attachment

requirement, as it is worded today, does not take sufficient account of the existence of

this marriage pattern among both resident foreigners and resident Danish nationals of

foreign extraction. There are thus also Danish nationals who are not well integrated

into Danish society and where integration of a spouse newly arrived in Denmark may

therefore entail major problems.’ By Act No. 1204 of 27 December 2003, the

application of the attachment requirement to Danish nationals was restricted through

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the 28-year rule, and the preparatory work in respect of the Act stated that the purpose

was,

inter alia,

‘to ensure that Danish expatriates with strong and lasting ties to

Denmark in the form of at least 28 years of Danish nationality will be able to obtain

spousal reunion in Denmark’. In the light of these notes, it is considered a fact that the

indirect difference in treatment between Danish nationals of Danish ethnic extraction

and Danish nationals of other ethnic extraction following from the 28-year rule is an

intended consequence.

Under Article 14 of the Convention, the enjoyment of the rights and freedoms

recognised by the Convention, including the individual’s right under Article 8 to

respect for his or her family life, must be ‘secured without discrimination on any

ground such as sex, race, colour, language, religion, political or other opinion,

national or social origin, association with a national minority, property, birth or other

status’. As mentioned above, the 28-year rule implies both indirect difference in

treatment between persons born Danish nationals and persons only acquiring Danish

nationality later in life and, in the same connection, indirect difference in treatment

between Danish nationals of Danish ethnic extraction and Danish nationals of other

ethnic extraction. Both these types of indirect difference in treatment must be

considered to fall within Article 14 read in conjunction with Article 8 of the

Convention. The two types of indirect difference in treatment implied by the

28-year rule are therefore contrary to Article 14 unless the difference in treatment can

be considered objectively justified and proportionate.

The European Convention on Nationality of 6 November 1997, which has been

ratified by Denmark, provides in Article 5 § 2: ‘Each State Party shall be guided by

the principle of non-discrimination between its nationals, whether they are nationals

by birth or have acquired its nationality subsequently’. The memorandum of

14 January 2005 made by the Ministry of Integration and the memorandum of

November 2006 made by the working group composed of representatives of the

Ministry of Justice, the Ministry of Foreign Affairs and the Ministry of Integration

state that the provision solely concerns issues on the revocation and loss of

nationality. In our opinion it is dubious whether there is any basis for such a restrictive

interpretation as the provision, according to its wording, comprises any difference in

treatment exercised as a consequence of how and when nationality was acquired. As is

apparent from the explanatory report, the provision is not a prohibition from which no

derogation may be made, and the provision must be taken to mean that it may be

derogated from if the difference in treatment is objectively justified and proportionate.

However, when assessing the 28-year rule relative to Article 14 read in conjunction

with Article 8 of the Convention, we consider it necessary to include the fact that, at

least according to its wording, Article 5 § 2 of the European Convention on

Nationality comprises a general provision stating that any difference in treatment

between different groups of a State Party’s own nationals is basically prohibited.

In an assessment made under Article 14 read in conjunction with Article 8 of the

Convention, another factor to be taken into consideration is the crucial importance of

being entitled to settle with one’s spouse in the country of one’s nationality.

As mentioned, Danish nationals were originally generally exempt from the

attachment requirement. The Supreme Court established in a judgment reproduced on

p. 2086 in the Danish Weekly Law Reports for 2005 that discrimination relative to the

right to spousal reunion based on whether the resident spouse is a Danish or foreign

national is not contrary to the prohibition of discrimination laid down in Article 14

read in conjunction with Article 8 of the Convention. In this respect, the Supreme

Court referred to paragraphs 84 to 86 of the judgment delivered by the European

Court of Human Rights on 28 May 1985 in

Abdulaziz, Cabales and Balkandali

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v. the United Kingdom.

Difference in treatment based on nationality must be seen,

inter alia,

in the light of the right of Danish nationals to settle in Denmark, and no

significance can be attributed to the fact that such discrimination is not considered

contrary to Article 14 read in conjunction with Article 8 when assessing whether it is

permissible to implement a scheme implying a difference in treatment between

different groups of Danish nationals. In our opinion, no crucial significance can be

attributed to paragraphs 87 to 89 of the

Abdulaziz, Cabales and Balkandali

judgment

either in this assessment, among other reasons because difference in treatment based

on the length of a person’s period of nationality is not comparable to a difference in

treatment based on place of birth.

In the cases in which the attachment requirement applies, some of the factors

emphasised are whether the resident spouse has strong links to Denmark by virtue of

his or her childhood and schooling in Denmark. Such strong attachment to Denmark

will exist in most cases where a person has held Danish nationality for 28 years.

However, when assessing whether the difference in treatment implied by the

28-year rule can be considered objectively justified, it is not sufficient to compare

persons not raised in Denmark who acquire Danish nationality later in life with the

large group of persons who were born Danish nationals and were also raised in

Denmark. If exemption from the attachment requirement was justified only by regard

for the latter group of Danish nationals, the exemption should have been delimited

differently. The crucial element must therefore be a comparison with persons who

were born Danish nationals and have been Danish nationals for 28 years, but who

were not raised in Denmark and may perhaps not at any time have had their residence

in Denmark. In our opinion, it cannot be considered a fact that, from a general

perspective, this group of Danish nationals has stronger ties with Denmark than

persons who have acquired Danish nationality after entering and residing in Denmark

for a number of years. It should be taken into consideration in that connection that one

of the general conditions for acquiring Danish nationality by naturalisation is that the

relevant person has resided in Denmark for at least nine years, has proved his or her

proficiency in the Danish language and knowledge of Danish society and meets the

requirement of self-support.

Against that background, it is our opinion that the indirect difference in treatment

implied by the 28-year rule cannot be considered objectively justified, and that it is

therefore contrary to Article 14 read in conjunction with Article 8 of the Convention.

The consequence of this must be that, when applying section 9, subsection 7, of the

Aliens Act to Danish nationals, the authorities must limit the 28-year rule to being

solely an age requirement, meaning that the attachment requirement does not apply in

cases where the resident spouse is a Danish national and is at least 28 years old.

Accordingly, we vote for ruling in favour of the [applicants’] claim to the effect that

the Ministry of Integration must declare invalid the decision of 27 August 2004,

thereby remitting the case for renewed consideration.

In view of the outcome of the voting on this claim we see no reason to consider the

claim for compensation.”

31. The applicants remained in Sweden and did not subsequently apply

for family reunion in Denmark, which they could have done under section 9,

subsection 7 of the Aliens Act, had the first applicant decided to reside in

Denmark anew. He maintained a job in Copenhagen and therefore

commuted every day from Malmö in Sweden to Copenhagen in Denmark.

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II. RELEVANT DOMESTIC LAW AND PRACTICE

1. The attachment requirement (section 9, subsection 7, of the Aliens

Act (Udlændingeloven))

32. The attachment requirement was introduced into Danish legislation

on 3 June 2000 as one of the conditions for granting family reunion with

persons residing in Denmark who were not Danish nationals.

33. With effect from 1 July 2002 the attachment requirement was

extended to apply also to residents of Danish nationality, one of the reasons

being, according to the preparatory work, that:

“... Experience has shown that integration is particularly difficult in families where

generation upon generation fetch their spouses to Denmark from their own or their

parents’ country of origin. With resident aliens and Danish nationals of foreign

extraction it is a widespread marriage pattern to marry a person from their country of

origin, among other reasons owing to parental pressure. This pattern contributes to the

retention of these persons in a situation where they, more than others, experience

problems of isolation and maladjustment in relation to Danish society. The pattern

thus contributes to hampering the integration of aliens newly arrived in Denmark. The

government find that the attachment requirement, as it is worded today, does not take

sufficient account of the existence of this marriage pattern among both resident

foreigners and resident Danish nationals of foreign extraction. There are thus also

Danish nationals who are not well integrated into Danish society and where the

integration of a spouse newly arrived in Denmark may therefore entail major

problems.”

34. In accordance with the amendment, the spouses’ aggregate ties with

Denmark must be stronger than their aggregate ties with another country.

By this amendment (applicable in the applicants’ case) the provision was

moved to section 9, subsection 7, of the Aliens Act and reads as follows:

Section 9, Subsection 7

“Unless otherwise appropriate for exceptional reasons, a residence permit under

subsection (l)(i) can only be issued if the spouses’ or cohabitants’ aggregate ties with

Denmark are stronger than the spouses’ or cohabitants’ aggregate ties with another

country.”

According to the explanatory notes, “exceptional reasons” could allow

for obligations under Article 8 of the Convention.

2. The 28-year rule (inserted as an exemption in section 9,

subsection 7)

35. It quickly transpired that this tightening had some unintended

consequences for persons such as Danish nationals who opted to live abroad

for a lengthy period and who started a family while away from Denmark.

For that reason, the rules were relaxed by Act no. 1204 of

27 December 2003, with effect from 1 January 2004, so that family reunion

in cases where one of the partners had been a Danish national for at least

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28 years were no longer subject to satisfaction of the requirement of

stronger aggregate ties to Denmark. Thereafter the relevant provisions were

reworded as follows:

Section 9

“(1)

Upon application, a residence permit may be issued to:

(i) an alien over the age of 24 who cohabits at a shared residence, either in marriage

or in regular cohabitation of prolonged duration, with a person permanently resident

in Denmark over the age of 24 who:

(a) is a Danish national;

...

(7) Unless otherwise appropriate for exceptional reasons, a residence permit under

subsection 1(i)(a), when the resident person has not been a Danish national for

28 years, and under subsection 1(i)(b) to (d), can only be issued if the spouses’ or the

cohabitants’ aggregate ties with Denmark are stronger than the spouses’ or the

cohabitants’ aggregate ties with another country. Resident Danish nationals who were

adopted from abroad before their sixth birthday and who acquired Danish nationality

not later than on their adoption are considered to have been Danish nationals from

birth.”

36. The preparatory work in respect of Act no. 1204 stated:

“If a Danish national travels abroad and starts a family, staying with his or her

foreign spouse or cohabitant and any children in the country of origin of the spouse or

cohabitant for a lengthy period, it will often be difficult to prove that their aggregate

ties with Denmark are stronger than their aggregate ties with another country. The

Danes who opt to settle abroad for a lengthy period and start a family during their stay

abroad may therefore find it difficult to meet the attachment requirement.

Against that background, the Government proposes that the attachment requirement

need not be met in future cases where the person who wants to bring his or her spouse

or regular cohabitant to Denmark has been a Danish national for 28 years.

The aim of the proposed provision is to ensure that Danish expatriates with strong

and lasting ties with Denmark in the form of at least 28 years of Danish nationality

will be able to obtain spousal reunion in Denmark. Hence, the proposed provision is

intended to help a group of persons who do not, under the current section 9,

subsection 7, of the Aliens Act, have the same opportunities as resident Danish and

foreign nationals for obtaining spousal reunion in Denmark. The proposed adjustment

of the attachment requirement will give Danish expatriates a real possibility of

returning to Denmark with a foreign spouse or cohabitant, and likewise young Danes

can go abroad and stay there for a period with the certainty of not being barred from

returning to Denmark with a foreign spouse or cohabitant as a consequence of the

attachment requirement.

The government find that the fundamental aim of amending the attachment

requirement by Act No. 365 of 6 June 2002 is not forfeited by refraining from

demanding that the attachment requirement be met in cases where the resident person

has been a Danish national for 28 years. It is observed in this connection that Danish

expatriates planning to return to Denmark one day with their families will often have

maintained strong ties with Denmark, which are also communicated to their spouse or

cohabitant and any children. This is so when they speak Danish at home, take holidays

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in Denmark, read Danish newspapers regularly, and so on, which normally gives a

basis for a successful integration of Danish expatriates’ family members into Danish

society.”

37. The preparatory work contained an assessment of the compatibility

of Act no. 1204 with international treaties, including the European

Convention on Human Rights. With reference to the prohibition against

discrimination in Article 14 of the Convention, it was specifically stated that

28 years of legal residence since early childhood would constitute

“exceptional reasons” as set out in section 9, subsection 7, for non-Danish

nationals. Accordingly, persons who were not Danish nationals, but who

were born and raised in Denmark, or came to Denmark as small children

and were raised in Denmark, were also exempted from the attachment

requirement, as long as they had resided lawfully in Denmark for 28 years.

38. An amendment of the Aliens Act entered into force on 15 May 2012,

reducing the 28-year rule to a 26-year rule.

3. The general provision on residence permits (section 9c, subsection

39. Section 9c, subsection l, as introduced in 2002, is a general provision

on residence permits, which provides:

“Upon application, a residence permit may be issued to an alien if exceptional

reasons make it appropriate.”

According to the explanatory notes to the provision, a residence permit

will be issued under this provision in cases where an alien would be unable

to obtain a residence permit under the other provisions of the Aliens Act,

provided that Denmark has undertaken to grant such permit according to its

treaty obligations. The notes read as follows:

“Under the proposed

section 9c, subsection l, first sentence

a residence permit

may be issued to an alien upon application, if exceptional reasons make it appropriate

... These cases are those, in particular, where family reunification is not possible under

the current section 9, subsection 1, of the Aliens Act, but where it is necessary to grant

family reunification as a consequence of Denmark’s treaty obligations, including

particularly Article 8 of the European Convention on Human Rights. Under current

practice, family reunification may also be granted upon a very specific assessment in

other exceptional cases where family reunification is not possible under the current

section 9, subsection 1 of the Aliens Act.”

4. Subsequent legal debate on the attachment requirement and the

28-year rule

40. The introduction of the “attachment requirement” as well as the

“28-year rule” gave rise to a legal and political debate in Denmark. For

example, the Danish Human Rights Institute published a memorandum in

2004 criticising the legislation. As a consequence the Ministry of Refugees,

Immigration and Integration Affairs published a memorandum on

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14 January 2005 discussing the legal issues. Furthermore, the Government

established a working group with representatives from the Ministry of

Justice, the Ministry of Foreign Affairs and the Ministry for Refugees,

Immigration and Integration Affairs. A memorandum prepared by the

working group was published on 14 November 2006 discussing,

inter alia,

the compatibility of the 28-year rule with Denmark’s international

obligations.

5. Practice on family reunification

41. The Government have submitted information on the Danish

authorities’ practice on family reunification, namely a memorandum of

1 December 2005 on the application of the attachment requirement to

spousal reunification under section 9, subsection 7 of the Aliens Act, and

statistical material.

42. It appears from the memorandum of 1 December 2005 that usually

spouses will have fulfilled the attachment requirement

if they have

been raised in different countries and have no joint ties with a country other

than Denmark. This applies regardless of whether one of the spouses has

been raised in Denmark or both spouses have been raised in countries other

than Denmark. However, it is required that the foreign spouse must have

visited Denmark previously at least once and that the spouse who is resident

in Denmark has made efforts to become integrated into Danish society.

43. By

contrast,

if the spouses were raised in the same country (as was

the case for the applicants, namely Ghana) or have joint ties with a country

other than Denmark,

the attachment requirement

will entail that the

spouse resident in Denmark must be required to have essential ties with

Denmark. Such essential ties with Denmark are normally considered to have

been obtained when the resident spouse has been entitled to reside in

Denmark for about 12 years, regardless of whether the resident spouse has

become a Danish national, and at the same time has made efforts to become

integrated into Danish society. If the resident spouse has been naturalised,

the

attachment requirement will normally be met after three years of

nationality.

44. In respect of the statistical material the Government submitted that

the statistics were subject to uncertainty as the case management system of

the Danish Immigration Service was set up as a recording and case

management system and not as a proper statistics system. The

Danish

Immigration Service registered no information on ethnic origin as this

was irrelevant to the consideration of an application under the 28-

year exception rule and such registration would be illegal under

Danish administrative law. No information could therefore be

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provided on the number of Danish nationals of Danish ethnic origin

who had benefited from the 28-year rule, nor other information on

ethnic origin relating to the figures on family reunion.

45. In a period of over 10 years (from 1 January 2004 to

10 December 2014), it appears that residence permits (not including asylum

applications) were requested in 43,320 cases, refused in 12,539 cases and

granted in 30,781 cases.

46. The 30,781 cases granted can be divided into 20,732

residence

permits,

where the attachment requirement had been fulfilled or had been

granted under the 28-year rule, and 10,049

residence permits where

exemptions from the attachment requirement were granted for

“exceptional reasons” either under section 9, subsection 7, or under

the general provision in section 9c, subsection l, of the Aliens Act.

Accordingly, almost a third of the residence permits was granted

under the “exceptional reasons” proviso. This group included those

aliens, who were not Danish nationals, but who were born and raised

in Denmark or who came to Denmark as small children and were

raised there, and who had stayed lawfully in the country for 28 years,

who were therefore also exempted from the attachment requirement

by virtue of section 9, subsection 7, of the Aliens Act (see paragraph

37 above).

III. RELEVANT EUROPEAN AND INTERNATIONAL MATERIALS

A. The Council of Europe

1. European Convention on Nationality

47. The Council of Europe’s Convention on Nationality was adopted on

6 November 1997 and entered into force on 1 March 2000. It has been

ratified by 20 member States of the Council of Europe, including Denmark

(on 24 July 2002 with entry into force on 1 November 2002). The relevant

provisions read as follows:

Article 1 - Object of the Convention

“

This Convention establishes principles and rules relating to the nationality of

natural persons and rules regulating military obligations in cases of multiple

nationality, to which the internal law of States Parties shall conform.”

Article 4 – Principles

“The rules on nationality of each State Party shall be based on the following

principles:

a. everyone has the right to a nationality;

b. statelessness shall be avoided;

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c. no one shall be arbitrarily deprived of his or her nationality;

d. neither marriage nor the dissolution of a marriage between a national of a State

Party and an alien, nor the change of nationality by one of the spouses during

marriage, shall automatically affect the nationality of the other spouse.”

Article 5 - Non-discrimination

“1. The rules of a State Party on nationality shall not contain distinctions or include

any practice which amount to discrimination on the grounds of sex, religion, race,

colour or national or ethnic origin.

2. Each State Party shall be guided by the principle of non-discrimination between

its nationals, whether they are nationals by birth or have acquired its nationality

subsequently.”

...

48. The Explanatory Report to the European Convention on Nationality

states,

inter alia,

about the above articles:

“Chapter I - General matters

Article 1 - Object of the Convention

...

Article 4 - Principles

30. The heading and introductory sentence of Article 4 recognise that there are

certain general principles concerning nationality on which the more detailed rules on

the acquisition, retention, loss, recovery or certification of nationality should be based.

The words ‘shall be based’ were chosen to indicate an obligation to regard the

following international principles as the basis for national rules on nationality.

...

Article 5 - Non-discrimination

Paragraph 1

39. This provision takes account of Article 14 of the ECHR which uses the term

‘discrimination’ and Article 2 of the Universal Declaration of Human Rights which

uses the term ‘distinction’.

40. However, the very nature of the attribution of nationality requires States to fix

certain criteria to determine their own nationals. These criteria could result, in given

cases, in more preferential treatment in the field of nationality. Common examples of

justified grounds for differentiation or preferential treatment are the requirement of

knowledge of the national language in order to be naturalised and the facilitated

acquisition of nationality due to descent or place of birth. The Convention itself, under

Article 6, paragraph 4, provides for the facilitation of the acquisition of nationality in

certain cases.

41. States Parties can give more favourable treatment to nationals of certain other

States. For example, a member State of the European Union can require a shorter

period of habitual residence for naturalisation of nationals of other European Union

States than is required as a general rule. This would constitute preferential treatment

on the basis of nationality and not discrimination on the ground of national origin.

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42. It has therefore been necessary to consider differently distinctions in treatment

which do not amount to discrimination and distinctions which would amount to a

prohibited discrimination in the field of nationality.

43. The terms ‘national or ethnic origin’ are based on Article 1 of the 1966

International Convention on the Elimination of All Forms of Racial Discrimination

and part of Article 14 of the ECHR. They are also intended to cover religious origin.

The ground of ‘social origin’ was not included because the meaning was considered to

be too imprecise. As some of the different grounds of discrimination listed in

Article 14 of the European Convention on Human Rights were considered as not

amounting to discrimination in the field of nationality, they were therefore excluded

from the grounds of discrimination in paragraph 1 of Article 5. In addition, it was

noted that, as the ECHR was not intended to apply to issues of nationality, the totality

of the grounds of discrimination contained in Article 14 were appropriate only for the

rights and freedoms under that Convention.

44. The list in paragraph 1 therefore contains the core elements of prohibited

discrimination in nationality matters and aims to ensure equality before the law.

Furthermore, the Convention contains many provisions designed to prevent an

arbitrary exercise of powers (for example Articles 4.c, 11 and 12) which may also

result in discrimination.

Paragraph 2

45. The words ‘shall be guided by’ in this paragraph indicate a declaration of intent

and not a mandatory rule to be followed in all cases.

46. This paragraph is aimed at eliminating the discriminatory application of rules in

matters of nationality between nationals at birth and other nationals, including

naturalised persons. Article 7, paragraph 1.b, of the Convention provides for an

exception to this guiding principle in the case of naturalised persons having acquired

nationality by means of improper conduct.”

2. The Council of Europe Commissioner for Human Rights

49. The Council of Europe Commissioner for Human Rights has made

recommendations to Denmark in respect of the Aliens Act, including the

28-year rule. In his report of 8 July 2004, Mr Alvaro Gil-Robles, suggested

to:

“1. Reconsider some of the provisions of the 2002 Aliens Act relating to family

reunion, in particular, the minimum age requirement of 24 years for both spouses for

family reunion and the 28-year citizenship requirement for the exemption from the

condition of both spouses’ aggregate ties to Denmark; ...”.

In his view, these provisions did not guarantee the principle of equality

before the law.

In a letter of 15 October 2004 to the Danish Government the

Commissioner added the following clarification of his views:

“My concern is that this requirement places undue restrictions on naturalised Danish

citizens and places them at considerable disadvantage in comparison to Danish

citizens born in Denmark. It is of course true that the 28-year rule applies equally to

all citizens. It follows, however, that whilst the exemption from the aggregate ties

condition will apply to a 28-year-old citizen born in Denmark, it will do so, for

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instance, only, allowing for the current 9 years residence requirement for

naturalisation, at the age of 57 for a citizen who first settled in Denmark at the age of

20. The dispensation from the aggregate ties conditions for a naturalised citizen, for

whom the condition will, inevitably, be harder to meet by virtue of his or her own

foreign origin, at so late an age constitutes, in my view, an excessive restriction to the

right to family life and clearly discriminates between Danish citizens on the basis of

their origin in the enjoyment of this fundamental right.”

In the follow-up assessment conducted by Mr Thomas Hammarberg, on

5 to 7 December 2006, the Commissioner stated that:

“The Commissioner cannot see how one can dispute that the requirement in question

does introduce a different treatment of Danes who have held citizenship as of birth

and those who have obtained it later on in their life and normally have to wait another

28 years before they can live in Denmark with their foreign partner. He notes that, in a

meeting of his delegation with the Legal Affairs Committee of the Danish Parliament,

it was conceded that there was indeed a discriminatory effect of such legislation and

that this corresponded to a political decision. The Commissioner recommends that the

Government reduce the very high threshold of 28 years.”

On that basis the Commissioner recommended that the Danish

authorities:

“2. reduce the requirement of 28 years of citizenship of the person living in

Denmark for an exemption from the condition of both spouses having aggregate ties

to Denmark that are stronger than with another country for granting a residence permit

to his or her foreign partner.”

3. The Committee of Ministers

50. On 26 March 2002 the Committee of Ministers adopted

Recommendation Rec(2002)4 to member States on the legal status of

persons admitted for family reunification. It bore “in mind that family

reunification is one of the major sources of immigration in most European

states and that the residence status and other rights granted to the admitted

family members are important elements in assisting the integration of the

new migrants in the host society”. It also considered “that rules of member

states on family reunion as an integral part of a coherent immigration and

integration policy should be guided by common principles”.

It recommended that governments ensure the adoption in their legislation

and administrative practice of various principles to be applied after

admission for family reunification, in particular as to the residence status of

family members, the autonomy of the family member’s residence status in

relation to that of the principal right holder, effective protection against

expulsion of family members, free movement, political participation of

persons admitted for family reunification and acquisition of nationality.

4. The Parliamentary Assembly of the Council of Europe

51. On 23 November 2004 the Parliamentary Assembly of the Council

of Europe (PACE) adopted Recommendation 1686 (2004) on human

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mobility and the right to family reunion and recommended, among other

things, that the Committee of Ministers:

“i. increase its monitoring of compliance by member states with international legal

instruments regarding family reunion, particularly compliance with the European

Convention on Human Rights and the relevant recommendations of the Committee of

Ministers in this field;

ii. draw up proposals for the harmonisation and implementation of family reunion

policies in member states and lay down a common definition of the family unit and

rules regarding specific circumstances based on the recommendations set out in sub-

paragraph 12.

...”

5. European Commission against Racism and Intolerance (ECRI),

52. The European Commission against Racism and Intolerance has made

reports on Denmark for example in 2001 (CRI (2001) 4), 2006 (CRI (2006)

18) and 2012 (CRI (2012) 25).

53. In its second report on Denmark, (CRI (2001) 4), the following was

stated in paragraph 23:

“The trend in Denmark, noted by ECRI in its first report, of tightening policies

regarding entry into the country for immigrants, refugees and asylum seekers, has

continued. Amendments to the Aliens Act have established further restrictions in the

granting of permanent residence and in the area of family reunification. The length of

time for which an alien immigrant must have had lawful residence in Denmark has

now been increased to six years (instead of the previous five), and certain

requirements, including the completion of an introduction programme must normally

be met. In the area of family reunification the latest amendments require that persons

wishing to bring a spouse to Denmark are over 25 years of age and dispose of a

dwelling of reasonable size, unless particular reasons make it inappropriate. The age

requirement, which the Danish authorities explain has been imposed in order to

protect young people against forced marriage, may be waived if an individual

assessment proves without any doubt that the marriage is based on the free will of the

person living in Denmark. There has been considerable criticism of this age

requirement from members of minority groups who feel that the change is based on

negative stereotypes about the marriage practices of certain minority groups and

violates their right to private life, including choosing a spouse. ECRI is concerned that

such criteria in the area of family reunification may impact in a discriminatory fashion

on certain minority groups, such as Muslims and encourages the Danish authorities to

give due consideration to this issue.”

54. In its third report on Denmark, (CRI (2006) 18), the following was

set out:

“49. ... ECRI is deeply concerned by the fact that the 28 years’ aggregate ties with

Denmark rule amounts to indirect discrimination between those who were born

Danish and people who acquired Danish citizenship at a later stage. The stated

purpose of the 24 year old rule, which is to avoid forced marriages, in fact concerns

only a very small number of people. According to research recently carried out among

members of the Turkish, Lebanese, Pakistani, Somali and former Yugoslavian

communities, 80% of the respondents indicated that they chose their spouse

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themselves, 16 % stated that they did it together with their parents and only 4%

indicated that their parents chose their spouse for them. ...

...

Recommendations:

53. ECRI urges the Danish Government to reconsider the provisions contained in

the Aliens’ Act on spousal and family reunification, bearing in mind Article 8 of the

European Convention on Human Rights. It also urges Denmark not to adopt laws

which in effect indirectly discriminate against minority groups. ECRI strongly

recommends that the Danish Government take into consideration the

recommendations made by various international and national bodies regarding the

Aliens’ Act.”

55. In its fourth report on Denmark, (CRI (2012) 25), the following was

set out:

“124. In its third report ECRI urged the Danish authorities to reconsider the

provisions contained in the Aliens’ Act on spousal and family reunification, bearing in

mind Article 8 of the European Convention on Human Rights. It also urged the

Danish authorities not to adopt laws which in effect indirectly discriminate against

minority groups.

125. ECRI notes with concern that on 1 June 2011, the Danish Parliament adopted

new rules (which entered into force on 1 July 2011) for spousal reunification which

further tightened the strict rules already in force. ...

126. ... The spouses’/partners’ combined attachment to Denmark must be

considerably greater than their combined attachment to any other country. Persons

who have held Danish citizenship for over 28 years, or who were born and raised in

Denmark or came to the country as small children and have resided legally there for

over 28 years are exempt from the attachment requirement. In order to fulfil the

attachment requirement, the applicant spouse/partner is normally required to have

visited Denmark at least twice on a visa or visa-free stay and to have completed a

Danish language course (on A1 level as a minimum). The spouse/partner residing in

Denmark must have made an effort to integrate into Danish society. ...

...

129. ...As concerns the rule by which family reunification can only be achieved at

the age of 24, with the stated purpose of preventing forced marriages, ECRI notes

research indicating that 84% of marriages are contracted with the free will of the

parties concerned. Furthermore, ECRI considers that this measure is disproportionate

to the aim sought. Even if the requirement that the spouses’/partners’ combined

attachment to Denmark should be considerably greater than their combined

attachment to any other country is changed to the above-mentioned aggregate ties

requirement, it remains a criterion which can be subject to subjective interpretation.

The rule that persons who have held Danish citizenship whether it be for over 28 or

26 years, or who were born in Denmark or came to the country as a small child or

have resided legally in the country, whether it be for over 28 or 26 years, are exempt

from these requirements, also risks disproportionately affecting non-ethnic Danes.

The Danish authorities have informed ECRI that the Aliens’ Act contains an

exemption mechanism. An example of an exceptional reason for allowing family

reunification although not all the requirements for spousal reunification have been met

is when refusing an application would interfere with Denmark’s international

obligations (e.g. the right to respect for private and family life guaranteed in Article 8

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in the European Convention on Human Rights). The Danish authorities have indicated

that exemptions can, for example, be granted if the spouse in Denmark holds a

residence permit as a refugee and would otherwise have to enjoy his/her family life in

a country where s/he risks persecution. ECRI also notes with concern reports

indicating that if a child is not assessed as being able to integrate in Denmark, s/he

will not be allowed to join his/her parent(s) in Denmark for family reunification

purposes or s/he will be deported from the country.

...

131. ECRI urges the Danish authorities to carry out a wide-ranging reform of the

spousal reunification rules in order to remove any elements which amount to direct or

indirect discrimination and/or which are disproportionate to their stated aims...”

B. The European Union

56. The relevant Articles of the EU Charter of Fundamental Rights, read

as follows:

Article 7 – Respect for private and family life

“Everyone has the right to respect for his or her private and family life, home and

communications.”

Article 21 – Non-discrimination

“1. Any discrimination based on any ground such as sex, race, colour, ethnic or

social origin, genetic features, language, religion or belief, political or any other

opinion, membership of a national minority, property, birth, disability, age or sexual

orientation shall be prohibited.

2. Within the scope of application of the Treaties and without prejudice to any of

their specific provisions, any discrimination on grounds of nationality shall be

prohibited.”

57. Article 20(1) of the Treaty on the Functioning of the European

Union (TFEU) establishes EU citizenship, and states:

“Citizenship of the Union is hereby established. Every person holding the

nationality of a Member State shall be a citizen of the Union. Citizenship of the Union

shall be additional to and not replace national citizenship.”

Article 21(1) states:

“Every citizen of the Union shall have the right to move and reside freely within the

territory of the Member States, subject to the limitations and conditions laid down in

the Treaties and by the measures adopted to give them effect.”

58. The rules on family reunification under European Union (“EU”) law

were not applied in the present case. For the sake of completeness, however,

it should be mentioned that EU law on family reunification differs

depending on the status of the person receiving the alien for family

reunification purposes (see, for example,

Jeunesse v. the Netherlands

[GC],

no. 12738/10, § 69, 3 October 2014).

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59. Moreover, on 25 July 2008 the Court of Justice of the European

Union (the “CJEU”) adopted a judgment in

Metock and others v. Minister

for Justice, Equality and Law Reform

(C-127/08), and clarified the

conditions and limits applicable to the right of residence of spouses of EU

citizens. The cases concerned four third country nationals (TCN), who had

initially unsuccessfully applied for political asylum in Ireland and then

married EU citizens who were not Irish nationals but who resided in Ireland.

Their applications for residence permits as spouses of EU citizens were

refused by the Minister of Justice on the grounds that they did not satisfy

the condition of prior lawful residence in another member State laid down in

Irish law. Those refusals formed the subject matter of actions for annulment

before the High Court which, finding that none of the marriages in question

was a marriage of convenience, sought a preliminary ruling from the CJEU

on the interpretation of Directive 2004/38/EC “on the right of citizens of the

Union and their family members to move and reside freely within the

territory of the Member States” in order to establish whether the Directive

precluded legislation of a member State which made the right of residence

of a national of a non-member country subject to the conditions of prior

lawful residence in another member State and acquisition of the status of

spouse of a citizen of the Union before his/her arrival in the host member

State. The CJEU ruled that these cases were a matter of EU law since the

applicants concerned had exercised their right to free movement.

Furthermore, it made no difference whether TCNs who were family

members of a EU citizen had entered the host member State before or after

becoming family members of that EU citizen. According to the CJEU, the

Directive did not make its application conditional on the beneficiaries –

family members of a citizen of the EU – having previously resided in a

member State. Nor did the Directive on family reunification require the EU

citizen to have founded his/her family before exercising his/her right of free

movement in another member State or the national of a non-member

country to have entered the host member State before becoming a family

member of the EU citizen. In other words, a TCN, the spouse of an EU

citizen, who accompanied that citizen in the host member State, could enjoy

rights conferred by that Directive irrespective of when and where their

marriage took place or of how the TCN had entered the host member State.

C. The United Nations

60. In its concluding observations after the Sixty-ninth Session in 2006,

in respect of Denmark (CERD/C/DEN/CO/17), the Committee on the

Elimination of Racial Discrimination (CERD), concluded,

inter alia,

follows:

“15. The Committee reiterates its concern regarding the restrictive conditions in

Danish legislation regarding family reunification. In particular, the conditions that

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both spouses must have attained the age of 24 to be eligible for family reunification,

and that their aggregate ties with Denmark must be stronger than their ties with any

other country unless the spouse living in Denmark has been a Danish national or has

been residing in Denmark for more than 28 years, may lead to a situation where

persons belonging to ethnic or national minority groups are discriminated against in

the enjoyment of their right to family life, marriage and choice of spouse. The

Committee also regrets that the right to family reunification is restricted to children

below the age of 15 (art. 5 (d) (iv)).

The Committee recommends that the State party review its legislation to ensure that

the right to family life, marriage and choice of spouse is guaranteed to every person

without discrimination based on national or ethnic origin. It also recommends that the

right to family reunification be allowed to children below the age of 18. The State

party should ensure that the measures it adopts to prevent forced marriages do not

impact disproportionately on the rights of persons belonging to ethnic or national

minorities. It should also assess the extent to which the condition for spousal

reunification that the spouse residing in Denmark must provide a bank guarantee and

may not have received any public assistance for sustenance within the last year before

the reunification amounts to indirect discrimination against minority groups who tend

to suffer from socioeconomic marginalization.”

IV. COMPARATIVE LAW

61. According to the information available to the Court, including a

comparative law survey covering twenty-nine Council of Europe member

States

(Austria,

Belgium, Bosnia and Herzegovina, the Czech Republic,

Estonia, Finland, France, the Former Yugoslav Republic of Macedonia,

Germany, Hungary, Italy, Liechtenstein, Lithuania, Luxembourg, Moldova,

the Netherlands, Norway, Poland, Portugal, Romania, Russia, Slovakia,

Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, the United

Kingdom) the basic requirements for family reunification of nationals with

third country nationals are broadly similar, although the practice may vary

considerably from one country to another, and from one case to the other,

depending on the circumstances.

General conditions for granting family reunion in a large number of

member States seem to be that the persons seeking family reunion should

fall into one of the categories of beneficiaries and be in possession of valid

personal documents and certificates proving family ties with the nationals.

They should normally have sufficient means of subsistence, adequate

housing, health insurance and the national spouse should have a registered

place of residence in the country. Some countries require spouses to have

reached either 18 or 21 years of age. The requirement that candidates should

have basic knowledge of the national language is also common.

A refusal to grant family reunion may be justified if it is shown that the

marriage is a marriage of convenience or if a false identity and/or

documents have been produced in support of the application for family

reunion, or if there exist public order or security and public health concerns.

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Some countries refuse to grant family reunion if the applicant has a

criminal record or is being a burden on the welfare system, and other

countries condemn in particular the giving of false identity and untruthful

statements in the proceedings. In a number of countries, the unlawful

entry/stay of an alien is an impediment to the acquisition of a residence

permit. However, some countries specify that it is not.

Some countries may provide for special conditions, for instance for the

prevention of polygamy or human trafficking.

The requirements for family reunion usually vary depending on the type

of permit sought. For long-stay permits and the acquisition of nationality,

the duration of the marriage, the existence of genuine life community and

residence in the country are relevant factors.

In terms of conditions for family reunification, none of the member

States in respect of which the Court has information, distinguishes between

“nationals by birth” and “nationals by acquisition later in life”.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

TAKEN IN CONJUNCTION WITH ARTICLE 8

62. The applicants complained that the refusal by the Danish authorities

to grant them family reunion in Denmark was in breach of Article 8, taken

alone and in conjunction with Article 14. They submitted in the latter

connection that the amendment to the Aliens Act in force as of

1 January 2004, lifting the attachment requirement for those who had held

Danish citizenship for at least 28 years (known as “the 28-year rule”),

resulted in an unjustified difference in treatment between two groups of

Danish nationals: namely those born Danish nationals and those, like

Mr Biao, who acquired Danish nationality later in life, and also Danish

nationals of Danish ethnic origin and Danish nationals of other ethnic

origin.

63. Article 8 of the Convention reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and

his correspondence.

2. There shall be no interference by a public authority with the exercise of this right

except such as is in accordance with the law and is necessary in a democratic society

in the interests of national security, public safety or the economic well-being of the

country, for the prevention of disorder or crime, for the protection of health or morals,

or for the protection of the rights and freedoms of others.”

Article 14 provides:

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“The enjoyment of the rights and freedoms set forth in [the] Convention shall be

secured without discrimination on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social origin, association with a

national minority, property, birth or other status.”

A. The Chamber judgment

64. In its judgment of 25 March 2014, the Chamber found unanimously

that there had been no violation of Article 8 taken alone. In particular, it

found that the Danish authorities had struck a fair balance between the

public interest in ensuring effective immigration control, on the one hand,

and the applicants’ need to be granted family reunion in Denmark, on the

other. Mr Biao had strong ties to Togo, Ghana and Denmark. His wife had

very strong ties to Ghana but no ties to Denmark, apart from having married

Mr Biao who lived in Denmark and had Danish citizenship. Furthermore,

the couple had never been given any assurances by the Danish authorities

that Ms Biao would be granted a right of residence in Denmark. As the

attachment requirement had been applicable to Danish nationals from

July 2002 onwards, the applicants could not have been unaware when they

married, in February 2003, that Ms Biao’s immigration status would make

any family life in Denmark uncertain for them from the outset. Moreover,

once they had been notified of the authorities’ refusal of July 2003 to grant

family reunion, Ms Biao could not have expected any right of abode by

simply entering the country on a tourist visa. Lastly, Mr Biao himself had

stated that, if he obtained paid employment in Ghana, he and his family

could settle there. Thus, the refusal to grant Ms Biao a residence permit in

Denmark did not prevent the couple from exercising their right to family life

in Ghana or any other country.

65. Concerning the complaint under Article 14 read in conjunction with

Article 8, the Chamber held, by a majority of four votes to three, that there

had been no violation.

66. It firstly considered that the applicants had failed to substantiate their

complaint that they had been discriminated against on the basis of race or

ethnic origin as a consequence of the application of the 28-year rule. The

Chamber recalled that a similar claim had been submitted in the case of

Abdulaziz, Cabales and Balkandali v. the United Kingdom

case

(28 May 1985, §§ 84-86, Series A no. 94), and dismissed. The Chamber

found that the Court’s reasoning in that judgment could apply in the present

case and pointed out that non-Danish nationals who had been born and

raised in Denmark, or had arrived in Denmark as small children and had

been raised there, and who had stayed lawfully in the country for 28 years,

were also exempted from the attachment requirement.

67. The majority of the Chamber did find, however, that there had been

a difference in treatment between Mr Biao, who had been a Danish national

for less than 28 years, and persons who had been Danish nationals for more

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than 28 years. As regards that difference in treatment, the Chamber noted

that at the relevant time the applicants’ aggregate ties to Denmark had

clearly not been stronger than their ties to another country. Furthermore, in

2004 Mr Biao had been a Danish national for less than two years, when he

had been refused family reunion. Refusing to exempt Mr Biao from the

attachment requirement after such a short time could not, in the Chamber’s

view, be considered disproportionate to the aim of the 28-year rule, namely

to favour a group of nationals, who - seen from a general perspective - had

lasting and long ties with Denmark and who could be granted family

reunion with a foreign spouse without difficulty, as the spouse could

normally be successfully integrated into Danish society.

B. The parties’ submissions

1. The applicants

68. The applicants submitted that they had been subjected to indirect

discrimination. Firstly, there was an obvious difference in treatment

between Danish-born nationals and those who acquired Danish nationality

later in life, when applying for family reunion, since persons who were born

Danish citizens were exempt from the attachment requirement as soon as

they had turned 28 years old, whereas persons who had acquired Danish

citizenship at a later point in life, had to await 28 years before being

exempted from the attachment requirement. That differential treatment also

amounted to indirect discrimination on the basis of race or ethnic origin,

since the majority of Danish-born persons would be ethnically Danish,

while persons acquiring Danish nationality later in life would

overwhelmingly be of other ethnic origins.

69. The applicants repeated their submission before the Chamber that for

Danish citizens applying for family reunion with their non-Danish spouse

living abroad, the 28-year rule did not pursue a legitimate aim because,

allegedly, it had been introduced to target Danish citizens of non-Danish

ethnic or national origin. The applicants thus called into question the

argument that the aim had been to assist the integration of newcomers or to

control immigration. They also disagreed with the argument that the aim

related to the economic well-being of the country. In their view, spousal

family reunion had no financial implication for the State, because the

resident spouse was obliged to provide for the other spouse.

70. The applicants also referred to the opinion of the minority in the

Chamber which supported their claim that there had been a violation of

Article 14 read in conjunction with Article 8.

71. In the applicants’ view, the Government had failed to provide

objective justification for the disadvantageous treatment of a group of

Danish citizens, namely naturalised citizens. Nor had the Government

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provided reasonable justification for such different treatment on the factual

ground of ethnic and national origin, which would have required weighty

reasons, especially given the rather narrow margin of appreciation that

member States had in matters of family reunion.

72. The applicants maintained that as a result of the refusal by the

Danish authorities to grant them family reunion, they had been forced to

move “in exile” to Sweden, which had adopted a more liberal attitude

towards foreigners in its legislation. The applicants contended that the said

exile had caused them humiliation and suffering.

73. They disagreed in general with the Government’s arguments and

pointed out that the 28-year rule had made it nearly impossible for Mr Biao

to be reunited with his spouse in Denmark. The applicants alleged that they

could not be reunited in Denmark until 2030. This also affected their son,

even though he was a Danish national. They referred to Article 21 of the

EU Charter of Fundamental Rights in this connection (see paragraph 56

above).

2. The Government

74. The Government contended that the non-application of the 28-year

exception rule to the first applicant was in accordance with the law, that is

section 9, subsection 7, of the Aliens Act. The 28-year rule pursued a

legitimate aim, namely ensuring that Danish expatriates with strong and

lasting ties with Denmark would be able to obtain family reunion in

Denmark. The rationale was that it would be unproblematic to grant such

persons family reunion with a foreign spouse because the latter would

normally be successfully integrated into Danish society. Politically it was

felt that this group had been unintentionally and unfairly disadvantaged by

the tightening of the attachment requirement introduced in 2002. More

generally, the 28-year rule pursued the legitimate aim of immigration

control and improving integration, which were important economic and

social considerations. The Government also maintained that the refusal to

grant the second applicant family reunion in Denmark struck a fair balance

and was necessary in a democratic society.

75. They observed that the general rule was the attachment requirement,

which was designed to secure integration into Danish society through

language skills, education, training and employment, the logic being that if

the resident spouse was well integrated, he or she would be better suited to

assist the foreign spouse’s integration.

76. The attachment requirement could be disregarded if “exceptional

reasons” existed (see section 9, subsection 7, and section 9 c, subsection 1,

of the Aliens Act, paragraphs 37 and 39 above), as might be the case owing,

inter alia,

to Denmark’s international obligations, including in

particular under Article 8 of the Convention.

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77. The attachment requirement might also be waived on the basis of the

28-year rule exemption, which had been introduced in 2004 to relax the

attachment requirement for the benefit of persons who had strong and

lasting ties with Denmark when seen from a general perspective. The

Government thus underlined that compliance with the 28-year rule was not

requirement for

spousal reunification but the exception from the

attachment requirement.

78. Naturalised nationals, including those who moved to Denmark later

in life, had good prospects of obtaining family reunion with a foreign

spouse in Denmark by fulfilment of the attachment requirement, or by way

of the exemption from any requirement of ties for “exceptional reasons”.

The Government reiterated that for spouses whose joint ties with another

country were not stronger than the couple’s aggregate ties with Denmark,

the attachment requirement would normally be met without further

conditions, already when the foreign spouse had visited Denmark once. For

spouses who had both been raised in the same foreign country (like the

applicants), and where the resident spouse had made efforts to become

integrated in Denmark, the attachment requirement would normally be met

at the latest when the resident spouse had resided in Denmark (with a

residence permit) for twelve years, meaning normally after three years of

nationality, and in many cases much earlier. The Government pointed out

that the applicants had been made aware of this practice in the decision of

27 August 2004 by the Ministry for Refugees, Immigration and Integration

(see paragraphs 24 and 43 above). Accordingly, if Mr Biao had remained in

Denmark and the applicants had reapplied for family reunification, they

would have had a prospect of success in fulfilling the attachment

requirement already in 2005. It was therefore incorrect to assume that the

applicants would only be allowed to be reunited in Denmark in 2030,

when Mr Biao would have reached the age of 59.

79. The 28-year rule had the same aim as the requirement of birth in the

country, a condition which had been found compatible with the Convention

in the

Abdulaziz, Cabales and Balkandali

(cited above, § 88) judgment,

where the Court had stated that “there [were] in general persuasive social

reasons for giving special treatment to those whose link with a country

stem[med] from birth within it”. The Government also referred to

Ponomaryov and Others v. Bulgaria

((dec), no. 5335/05, 18 September

2007), where the Court stated that “there [were] in general persuasive social

reasons for giving special treatment to those who [had] a special link with a

country”.

80. The Government pointed out that, as a matter of well-established

international law and subject to its treaty obligations, a State had the right to

control the entry of non-nationals into its territory as a manifestation of the

interest of the economic well-being of the country. The Government noted

that the Danish model of society was based on a universal welfare state with

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generous welfare schemes, such as free healthcare and education at all

levels for everyone and considerable financial support for families with

children, childcare and old-age care. These welfare services were financed

to a small extent by insurance schemes and user charges and to a very great

extent by general taxes and duties, which were among the highest in the

world. Welfare spending on individual citizens would therefore be higher

than the citizen’s tax payment in many cases, depending on which of the

welfare services offered were used by the individual citizen. By no means

were all taxpayers net contributors to the national economy. This also

applied to spouses who had been reunited as a family, where the resident

spouse provided financial security for the maintenance of his or her newly

arrived spouse. The

willingness of the Danes to finance the universal

welfare state and the high degree of redistribution was based on

values such as a strong spirit of solidarity and community in Danish

society. Consequently, if a large number of people were not

financially and/or socially well-integrated into society, this might

affect support for the existing Danish model of society in the long

term. These circumstances gave rise to particular issues with regard

to immigration control and integration, and in this connection great

importance was attached to the prospect of the successful

integration of newcomers, both in each individual case and seen

from a more general perspective. The rules on ties with Denmark as

a condition for family reunion had to be understood in this light,

among others.

81. Concerning the relevant time for assessing the applicants’ case, the

Government observed that the applicants had moved to Sweden in

November 2003 and had not since submitted a new application for family

reunion in Denmark, although they could have done. Under Danish law a

reassessment of their situation would be made only upon submission of a

new application. The domestic court proceedings concerned the situation at

the time when the administrative authorities decided the case. Accordingly,

in its judgment of 13 January 2010 the Supreme Court, at last instance, had

decided that the refusal of 27 August 2004 by the Ministry for Refugees,

Immigration and Integration (being the final administrative body) could not

be set aside as being in breach of Article 14 read in conjunction with

Article 8 of the Convention. The Supreme Court’s determination of the case

had thus been based on the situation in 2004 and not in 2010. The

Government emphasised in this connection that it followed both from the

requirement of the Convention as to exhaustion of national remedies as a

condition for submitting an application to the Court (Article 35 § 1 of the

Convention), and from the established case-law of the Court, that the time

of the decision in dispute, in this case the administrative decision, was

decisive for the Court’s assessment of a case under the Convention. Against

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this background, the Government submitted that 2004 was the relevant time

for the Court’s assessment of the case, not 2010 or 2015.

82. Moreover, in line with the findings of the Supreme Court, the

Government observed that the consequences of the 28-year rule could not

be considered disproportionate as regards the first applicant, who was born

in Togo in 1971 and came to Denmark in 1993. After nine years of

residence, he became a Danish national in 2002. In 2003 he married the

second applicant and they immediately submitted an application for spousal

reunification in Denmark, which was finally refused in August 2004. The

first applicant had therefore been a Danish national for less than two years

when he was refused family reunification.

83. The Government pointed out that the applicants could not have been

unaware that the immigration status of the second applicant was such that

the persistence of their family life within Denmark would from the outset be

very uncertain, since the attachment requirement had been introduced for

Danish nationals seeking spousal reunion one year before their marriage and

application for such reunion, and since the 28-year rule exemption was not

introduced until ten months after the second applicant’s application for a

residence permit.

84. Before the Grand Chamber the Government were invited to include

in their observations a reply to the following question:

“The Government are requested to indicate how many persons have benefited from

the 28-year rule pursuant to section 9, subsection 7 of the Aliens Act and how many

of those were Danish nationals of Danish ethnic origin, and to submit other statistical

material they may have relating to the application of the 28-year rule.”

85. The Government replied that, regrettably, they had been unable to

produce the specific information requested by the Court (see paragraph 44

above). However, they did provide a memorandum of 1 December 2005 on

the application of the attachment requirement to spousal reunification under

section 9, subsection 7 of the Aliens Act and general statistics on family

reunion in Denmark (see paragraphs 41-46 above).

86. Finally, during the proceedings before the Grand Chamber, the

Government submitted that since the first applicant had moved to Sweden

on 15 November 2003, by virtue of Directive 2004/38/EC of the European

Parliament and of the Council of 29 April 2004 on the right of citizens of

the Union and their family members to move and reside freely within the

territory of the member States, and in the light of the judgment of

25 July 2008 of the Court of Justice of the European Union (CJEU) in

Metock v. Minister for Justice, Equality and Law Reform

(C-127/08) (see

paragraph 59 above), “it would be correct to assume that the applicants and

their child would have a prospect of success in applying from Sweden for a

residence permit in Denmark.”

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BIAO v. DENMARK JUDGMENT

3. Observations by the third-party intervener

87. The AIRE Centre’s submissions focused on applicable EU law

relating to citizenship of the Union and the right to freedom of movement.

They underlined that by virtue of Article 53 of the Convention, the right

to respect for family and private life could not be given a more restrictive

interpretation by this Court than the respect for family life that was

guaranteed under any applicable EU law provisions. To the extent that EU

law applied, therefore, the Convention could not be interpreted such as to

give less generous protection to family (and private) life than that

guaranteed by the relevant EU law provisions.

They pointed out that no

distinction was made in EU law between

those who acquired citizenship by birth and those who acquired it by

registration or naturalisation, referring,

mutatis mutandis

, to

Micheletti

and Others v. Delegacion del Gobierno en Cantabria

([1992] C-

369/90). It was therefore contrary to EU law to make a distinction in

the enjoyment of human rights and fundamental freedoms based on

the different ways in which citizenship was acquired or the duration

of that citizenship.

Moreover, EU citizens who had moved to another member State

had the right to return with their third-country national family

members to their home country after exercising treaty rights in

another State and could not be subjected to reverse discrimination

because they were nationals of the State in question (the third party

here referred to the CJEU’s judgment in

Metock

v. Minister for Justice,

Equality and Law Reform

(see paragraph 59 above)).

C. The Court’s assessment

1. General principles

88. The Court reiterates that Article 14 complements the other

substantive provisions of the Convention and the Protocols thereto. It has no

independent existence since it has effect solely in relation to “the enjoyment

of the rights and freedoms” safeguarded by those provisions. The

application of Article 14 does not necessarily presuppose the violation of

one of the substantive rights guaranteed by the Convention. The prohibition

of discrimination in Article 14 thus extends beyond the enjoyment of the

rights and freedoms which the Convention and Protocols require each State

to guarantee. It applies also to those additional rights, falling within the

general scope of any Article of the Convention, for which the State has

voluntarily decided to provide. It is necessary but it is also sufficient for the

facts of the case to fall within the ambit of one or more of the Convention

Articles (see, for example,

Stec and Others v. the United Kingdom

(dec.)

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[GC], nos. 65731/01 and 65900/01, §§ 39-40, ECHR 2005-X;

E.B. v. France

[GC], no. 43546/02, §§ 47-48, 22 January 2008; and

Vallianatos and Others v. Greece

[GC], nos. 29381/09 and 32684/09, § 72,

ECHR 2013).

89. The Court has established in its case-law that only differences in

treatment based on an identifiable characteristic, or “status”, are capable of

amounting to discrimination within the meaning of Article 14. Moreover, in

order for an issue to arise under Article 14 there must be a difference in the

treatment of persons in analogous, or relevantly similar, situations (see for

example,

Carson and Others v. the United Kingdom

[GC], no. 42184/05,

§ 61, ECHR 2010;

Burden v. the United Kingdom

[GC], no. 13378/05, § 60,

ECHR 2008;

D.H. and Others v. the Czech Republic

[GC], no. 57325/00,

§ 175, ECHR 2007-IV; and

Kjeldsen, Busk Madsen and Pedersen

v. Denmark,

7 December 1976, § 56, Series A no. 23). Article 14 lists

specific grounds which constitute “status” including,

inter alia,

race,

national or social origin and birth. However, the list is illustrative and not

exhaustive, as is shown by the words “any ground such as” (in French

“notamment”) (see

Engel and Others v. the Netherlands,

8 June 1976, § 72,

Series A no. 22, and

Carson and Others,

cited above, § 70) and the

inclusion in the list of the phrase “any other status”. The words

“other status” have generally been given a wide meaning (see

Carson and

Others,

cited above, § 70) and their interpretation has not been limited to

characteristics which are personal in the sense that they are innate or

inherent (see

Clift v. the United Kingdom,

no. 7205/07, §§ 56-58,

13 July 2010).

90. A difference in treatment is discriminatory if it has no objective and

reasonable justification, that is if it does not pursue a legitimate aim or if

there is not a reasonable relationship of proportionality between the means

employed and the aim sought to be achieved. The notion of discrimination

within the meaning of Article 14 also includes cases where a person or

group is treated, without proper justification, less favourably than another,

even though the more favourable treatment is not called for by the

Convention (see

Abdulaziz, Cabales and Balkandali,

cited above, § 82).

91. A general policy or measure that has disproportionately prejudicial

effects on a particular group may be considered discriminatory even where

it is not specifically aimed at that group and there is no discriminatory

intent. This is only the case, however, if such policy or measure has no

“objective and reasonable” justification (see, among other authorities,

S.A.S. v. France

[GC], no. 43835/11, § 161, ECHR 2014 (extracts), and

D.H. and Others,

cited above, §§ 175 and 184-185).

92. As to the burden of proof in relation to Article 14 of the Convention,

the Court has held that once the applicant has demonstrated a difference in

treatment, it is for the Government to show that it was justified

(see

D.H. and Others,

cited above, § 177).

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93. The Contracting States enjoy a certain margin of appreciation in

assessing whether and to what extent differences in otherwise similar

situations justify a difference in treatment (see, for example,

Hämäläinen

v. Finland

[GC], no. 37359/09, § 108, ECHR 2014;

X and Others v. Austria

[GC], no. 19010/07, § 98, ECHR 2013; and

Vallianatos and Others,

cited

above, § 76). The scope of the margin of appreciation will vary according to

the circumstances, the subject matter and its background, but the final

decision as to the observance of the Convention’s requirements rests with

the Court. A wide margin is usually allowed to the State when it comes to

general measures of economic or social strategy (see

Burden,

cited above,

§ 60;

Carson and Others,

cited above, § 61;

Şerife Yiğit v. Turkey

[GC],

no. 3976/05, § 70, 2 November 2010; and

Stummer v. Austria

[GC],

no. 37452/02, § 89, ECHR 2011). However, very weighty reasons would

have to be put forward before the Court could regard a difference in

treatment based exclusively on the ground of nationality as compatible with

the Convention (see

Gaygusuz v. Austria,

16 September 1996, § 42,

Reports

of Judgments and Decisions

1996-IV;

Koua Poirrez v. France,

no. 40892/98, § 46, ECHR 2003-X;

Andrejeva v. Latvia

[GC],

no. 55707/00, § 87, ECHR 2009; and

Ponomaryovi v. Bulgaria,

no. 5335/05, § 52, ECHR 2011).

94. No difference in treatment based exclusively or to a decisive extent

on a person’s ethnic origin is capable of being justified in a contemporary

democratic society. Discrimination on account of,

inter alia,

a person’s

ethnic origin is a form of racial discrimination (see,

D.H. and Others,

cited

above, §176;

Timishev v. Russia,

nos. 55762/00 and 55974/00, § 56,

ECHR 2005-XII; and

Nachova and Others v. Bulgaria

[GC], nos. 43577/98

and 43579/98, §145, ECHR 2005-VII).

2. Application of those principles to the present case

(a) Applicability of Article 14 of the Convention taken in conjunction with

Article 8

95. It is undisputed by the parties that the facts of the case, namely the

refusal to grant family reunification and the non-application of the

28-year rule to the applicants in the present case fall within the ambit of

Article 8. The Court agrees. Consequently, and recalling the principles set

out in paragraph 88 above, Article 14 taken in conjunction with Article 8

applies to the facts of the case (see, for example,

Hode and Abdi v. the

United Kingdom

(no. 22341/09, § 43, 6 November 2012)).

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(b) Compliance with Article 14 taken in conjunction with Article 8

(i) Do the facts of the case disclose discrimination?

96. It is not in dispute that the applicants were in a relevantly similar

situation to that of other couples in which a Danish national and a foreign

national seek family reunification in Denmark. Moreover, the Government

acknowledged, as did the domestic courts, that the 28-year rule did treat

Danish nationals differently, depending on how long they had been Danish

nationals. If the person had been a Danish national for 28 years, the

exception to the “attachment requirement” applied. If the person had not

been a Danish national for 28 years, the exception did not apply. The crux

of the case is therefore whether, as maintained by the applicants, the

28-year rule also created a difference in treatment between Danish-born

nationals and those who acquired Danish nationality later in life, amounting

to indirect discrimination on the basis of race or ethnic origin.

97. It will be recalled that on 1 July 2003 the Aliens Authority refused

the second applicant’s request for a residence permit as the applicants did

not fulfil the attachment requirement. Their appeal was dismissed on

27 August 2004 by the Ministry for Refugees, Immigration and Integration

on the same grounds. The applicants did not benefit from the newly

introduced exception to the attachment requirement, namely the 28-year rule

which had come into effect on 1 January 2004, as the first applicant had not

been a Danish national for 28 years.

98. The Court observes that the 28-year rule was introduced by

Act no. 1204 of 27 December 2003, with effect from 1 January 2004, to

relax the application of the attachment requirement for residents who had

been Danish nationals for 28 years or more. Thereafter, section 9,

subsection 7 of the Aliens Act was worded as follows (see paragraph 35

above):

“Unless otherwise appropriate for exceptional reasons, a residence permit under

subsection 1(i)(a), when the resident person has not been a Danish national for 28

years, and under subsection 1(i)(b) to (d), can only be issued if the spouses’ or the

cohabitants’ aggregate ties with Denmark are stronger than the spouses’ or the

cohabitants’ aggregate ties with another country. Resident Danish nationals who were

adopted from abroad before their sixth birthday and who acquired Danish nationality

not later than on their adoption are considered to have been Danish nationals from

birth.”

The wording of the provision thus distinguished only between residents

who had been Danish nationals for at least 28 years and those who had not

been Danish nationals for 28 years.

99. According to the preparatory work (see paragraph 36 above) it

would appear that the aim of the proposed provision was to ensure that

Danish expatriates having strong and lasting ties with Denmark in the form

of at least 28 years of Danish nationality would be able to obtain spousal

reunion in Denmark. The proposed provision targeted a group of persons

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who did not, under the previous section 9, subsection 7, of the Aliens Act,

have the same opportunities as Danish and foreign nationals living in

Denmark for obtaining spousal reunion. The proposed adjustment of the

attachment requirement was to give “Danish expatriates a real possibility of

returning to Denmark with a foreign spouse or cohabitant, and likewise

young Danes could go abroad and stay there for a period with the certainty

of not being barred from returning to Denmark with a foreign spouse or

cohabitant as a consequence of the attachment requirement”.

100. Moreover, again according to the preparatory work (see

paragraph 37 above), the exemption for “exceptional reasons” in the

relevant provision allowed for situations covered by Denmark’s treaty

obligations. It was specifically stated that 28 years of legal residence since

early childhood would fall within the “exceptional reasons”, as provided in

section 9, subsection 7, for the benefit of non-Danish nationals.

Accordingly, persons who were not Danish nationals, but who were born

and raised in Denmark, or came to Denmark as small children and were

raised in Denmark, were also exempted from the attachment requirement, as

long as they had resided lawfully in Denmark for 28 years.

101. For the reasons that follow, the Court is not ready to accept the

Government’s claim that the difference in treatment was linked solely to the

length of nationality with the result that the applicants were treated

differently when compared to a couple seeking family reunification in

which one of the spouses had been a Danish national for more than

28 years, Mr Biao having been a Danish national for a shorter period.

102. The applicants alleged that the 28-year rule created in practice a

difference in treatment between Danish-born nationals and those who

acquired Danish nationality later in life. In addition, since the majority of

Danish-born nationals would be ethnically Danish, while persons acquiring

Danish nationality later in life would overwhelmingly be of different ethnic

origins, that is other than Danish, the differential treatment also amounted to

indirect discrimination on the basis of race or ethnic origin. The applicants

referred, among other things, to the view expressed by the minority of the

Supreme Court (see paragraph 30 above), which had found that the

28-year rule amounted to an indirect difference in treatment between Danish

nationals of Danish ethnic origin and Danish nationals of other ethnic origin

regarding the right to spousal reunion.

103. The Court has accepted in previous cases that a difference in

treatment may take the form of disproportionately prejudicial effects of a

general policy or measure which, though couched in neutral terms,

discriminates against a group (see, for example,

Hugh Jordan v. the United

Kingdom,

no. 24746/94, § 154, 4 May 2001). Such a situation may amount

to “indirect discrimination”, which does not necessarily require a

discriminatory intent (see,

D.H. and Others,

cited above, § 184).

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104. It is therefore pertinent in the present case to examine whether the

manner in which the 28-year rule was applied in practice had a

disproportionately prejudicial effect on persons who, like the first applicant,

acquired Danish nationality later in life and who were of an ethnic origin

other than Danish (see also

D.H. and Others,

cited above, § 185).

105. To this end the Court finds it necessary to view the relevant

provision of the Aliens Act from a historical perspective. It notes that the

attachment requirement was introduced into Danish legislation on

3 June 2000 as one of the conditions for granting family reunion with

persons residing in Denmark who were not Danish nationals.

106. As of 1 July 2002 the attachment requirement was extended to

apply also to Danish nationals, one of the reasons being, according to the

preparatory work (see paragraph 33 above), as follows: