ECtHR decision in Biao v. Denmark, Application No. 38590/10, 25 March 2014

Wednesday, April 2, 2014

The European Court of Human Rights (ECtHR) has held by four votes to three that the refusal of Denmark to grant family reunification to a Danish citizen of Tongolese origin and his Ghanaian wife does not violate Article 8 (right to family life) taken in conjunction with Article 14 (prohibition of discrimination) of the European Convention on Human Rights. In addition, the couple’s Article 8 stand-alone complaint was unanimously rejected.

For Danish nationals to enjoy family reunification in Denmark, there must be no other country with which the family have stronger ties. The Applicant and his wife’s attachment to Ghana excluded them from family reunification on this basis. The so-called ‘attachment requirement’, since a legislative amendment in 2003, does not apply to those who have held Danish citizenship for more than 28 years. The Applicant couple complained that this amendment causes differential treatment between born Danish nationals and those, like the Applicants, who acquire nationality later in life. Such differential treatment, they submitted, constituted discrimination on the basis of race or ethnic origin.

Regarding Articles 8 and 14 taken together, the ECtHR declined to see any ethnic or religious discrimination. It was noted that other exemptions to the attachment requirement existed for non-Danish nationals who had been born and raised in Denmark, or came to Denmark as small children and had been raised there. While acknowledging a difference in treatment between Danish nationals of +28 year duration and -28 year duration, the majority regarded it as justified in view of the overall purpose of the amendment, namely to favour nationals with lasting and long ties to Denmark, and to highlight that integration of a foreign spouse is more likely to be successful after the national has experienced citizenship for an extended duration. Refusing an exemption to the Applicants was, according to the ECtHR, not disproportionate in light of their personal circumstances: the husband had only been a national for two years prior to being refused family reunification, and he had ties to his wife’s native Ghana.

Three judges issued a joint dissenting opinion, arguing that ‘the purportedly neutral 28-year rule actually singles out a group of citizens, naturalised foreigners, and gives privileged treatment to Danish citizens by birth... [N]aturalised immigrants who are, predominantly, of different ethnic or national origin or belong to ethnic groups different from ethnic Danes, are treated differently from the latter’. The dissenting opinion concludes as follows: ‘As a matter of common sense, however, for a citizen, even if naturalised, to have to wait twenty-eight years for permission to reunite in his country of citizenship is disproportionately, drastically and unjustly far too long and amounts for that human being, and for his spouse, to deprivation of their right to pursuit of happiness. We do not believe that the Convention was meant to endorse such deprivation’.

On Article 8 alone, the ECtHR concluded that a fair balance had been struck between effective immigration control and the family life of the Applicants. No reasonable expectation of family reunification could have arisen, not least due to the legislative amendment.

Read the judgment and official press release of the ECtHR.

28 March 2014

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Family reunification