Denmark - Supreme Court Judgement, 6 November 2017, Case no. 107/2017 A v. The Immigration Appeals Board

Country of Decision:
Country of Applicant:
Date of Decision:
06-11-2017
Citation:
Case no. 107/2017 A v. The Immigration Appeals Board
Court Name:
The Supreme Court
National / Other Legislative Provisions:
Denmark - The Danish Aliens Act Art. 7 (1)
Denmark - The Danish Aliens Act Art. 7 (2)
Denmark - The Danish Aliens Act Art. 7 (3)
Denmark - The Danish Aliens Act Art. 9c (1)
Denmark - The Danish Aliens Act Art. 9 (1) no. 1 (d)
Commission Regulation (EC) No 1560/2003
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Headnote: 

The Supreme Court upheld the judgement of the Eastern High Court that it was not in contravention of the ECHR Article 8 that a Syrian man with temporary protection status in Denmark had to wait 3 years for family reunification with his spouse who was still in Syria. Further, the Supreme Court held that the decision was not in breach of the prohibition of discrimination under Article 14 ECHR.

Facts: 

The appellant, born in October 1959, is an ethnic Arab and a Sunni Muslim from Damascus, Syria. He entered Denmark in April 2015 and applied for refugee status.

On 8 June 2015, the Danish Immigration Service granted the appellant temporary protection under the Danish Aliens Act Article 7 (3) due to the general situation in his home country.

On 4 November 2015, the appellant lodged an application for family reunion.

On 9 December 2015, the Refugee Appeals Board upheld the decision of the Danish Immigration Service to grant the appellant temporary protection.

On 5 July 2016, the Danish Immigration Service rejected the application for family reunification.

On 16 September 2016, the Immigration Appeals Board upheld the decision of the Danish Immigration Service. The grounds for the Immigration Appeals Board’s decision were that the appellant had not had a residence permit for more than the past three years, which is a requirement in the Aliens Act for family reunion, and that no exceptional reasons, including regard for family unity, made it appropriate to grant a residence permit according to the derogating provision in Section 9c (1) of the Act. The appellant had submitted, among other things, that the decision was contrary to the right to respect for family life in ECHR Article 8 and that the decision was in breach of the prohibition of discrimination in ECHR Article 14.

On 19 September, the appellant commenced proceedings against the Immigration Appeals Board at the court of Svendborg.

On 31 October, the case was referred to the Eastern High Court as the court of first instance according to the Administration of Justice Act 226 (1). The appellant claimed the decision by the Immigration Appeals Board invalid.

On 19 May 2017, the Eastern High Court dismissed the appellants claim.

The appellant appealed the judgment of the Eastern High Court and on 6 November 2017 the Supreme Court upheld the judgment of the Eastern High Court.

Decision & Reasoning: 

The Supreme Court held – particularly referring to the travaux préparatoires for the Aliens Act Art. 7 (3) and Art. 9 (1), no. 1 (d) – that the restriction of the right to family reunification was based on interests that could be protected in accordance with ECHR Article 8. Although the refusal of family reunification in effect meant that the appellant was kept from living with his wife, this was only temporary. The appellant could return to Syria when the general situation in the country improved, and if this did not happen, he would, as a general rule, be entitled to family reunification with his wife after three years. The Supreme Court considered that an application for family reunification would be decided upon as soon as possible after the appellant having resided three years in the country and if, before three years have elapsed, special conditions arise which make the separation from the spouse particularly intrusive, a permission to family reunification could be obtained under the Aliens Act Art. 9c (1).

On this basis, the Supreme Court held that the requirement that the appellant must have had a residence permit in Denmark for three years before being entitled to family reunification with his wife was within the State’s margin of discretion when weighing the consideration for his family life against the interests of the general good in accordance with ECHR Article 8. The Immigration Appeals Board’s decision was thus not contrary to Article 8.

Moreover, the Supreme Court held that the decision was also not in breach of the prohibition of discrimination in ECHR Article 14 cf. Article 8. The Supreme Court found it doubtful that the situation of the appellant was comparable to foreigners with refugee status under the Aliens Act Art, 7 (1) or subsidiary protection under the Aliens Act Art. 7 (2) because they, returning to their home country, would risk persecution based on their individual situation. But even if this was assumed the Supreme Court found that the difference in access to family reunification founded on an assessment of the different person group’s need for protection must be considered objectively and reasonably justified within the State’s margin of discretion in a case regarding discrimination because of immigration status. Consequently, the Supreme Court did not find a basis for setting aside the Parliament’s assessment according to which the need for protection of the persons covered by the Aliens Act Art. 7 (3) is of a more temporary nature than the need for protection of the persons covered by the Aliens Act Art. 7 (1) or Art. 7 (2). The Supreme Court noted that general conditiosn in the homeland that has justified a temporary protection can change rapidly which is illustrated by the ECtHR judgements Sufi and Elmi v. UK, applications nos. 8319/07 and 11449/07 of 28 June 2011 and K.A.B. v. Sweden application 17299/12 of 5 September 2013.

 
Outcome: 

Waiting 3 years for family reunification with temporary protection status in Denmark was not in breach of ECHR Art. 8 or Art. 14 cf. Art. 8.

Other sources cited: 

Travaux Préparatoires to the bills for revision of the Danish Aliens Act no. L 72 of 14 November 2014 and no. L 87 of 10 December 2015

Case Law Cited: 

ECtHR - Bah v. the United Kingdom, Application No. 56328/07

ECtHR - Tanda-Muzinga v. France, Application No 2260/10 (UP)

ECtHR - Senigo-Longue & others v France (App 11903/09, 10 July 2014)

ECtHR- Nunez v. Norway, Application No. 55597/09

ECtHR - Biao v. Denmark, application no. 38590/10 of 24 May 2016