Information Note on the Court’s case-law 196

May 2016

Biao v. Denmark [GC] - 38590/10

Judgment 24.5.2016 [GC]

Article 14

Discrimination

More favourable conditions for family reunion applying to persons who had held Danish citizenship for at least 28 years: violation

Facts – The applicants are husband and wife. The first applicant is a naturalised Danish citizen of Togolese origin who lived in Ghana from the age of 6 to 21, entered Denmark in 1993 aged 22 and acquired Danish citizenship in 2002. He married the second applicant in 2003 in Ghana. She is a Ghanaian national who was born and raised in Ghana and who at the time of the marriage ha d never visited Denmark and did not speak Danish. After the marriage, the second applicant requested a residence permit for Denmark, which was refused by the Aliens Authority on the grounds that the applicants did not comply with the requirement under the Aliens Act (known as the “attachment requirement”) that a couple applying for family reunification must not have stronger ties with another country – Ghana in the applicants’ case – than with Denmark. The “attachment requirement” was lifted for persons who had held Danish citizenship for at least 28 years, as well as for non-Danish nationals who were born in Denmark and had lawfully resided there for at least 28 years (the so-called 28-year rule under the Aliens Act). The applicants unsuccessfully challenge d the refusal to grant them family reunification before the Danish courts. They submitted that the 28-year rule resulted in a difference in treatment between two groups of Danish nationals, namely those who were born Danish nationals and those who acquired Danish nationality later in life. Under that rule, the first applicant could not be exempted from the attachment requirement until 2030 when he would reach the age of 59.

In the meantime, the second applicant entered Denmark on a tourist visa. Some months later, the couple moved to Sweden where they had a son, born in 2004. Their son has Danish nationality through his father.

In a judgment of 25 March 2014 (see Information Not e 172 ) a Chamber of the Court held unanimously that there had been no violation of the applicants’ rights under Article 8. By four votes to three it held that there had been no violation of Article 14 taken in conjunction with Article 8 of the Convention o n account of a difference in treatment between persons who had been Danish nationals for more than 28 years and those who had been nationals for a shorter period of time. The case was referred to the Grand Chamber at the applicants’ request.

Law – Article 14 taken together with Article 8: In order to determine whether the present case revealed any “indirect discrimination” based on race or ethnic origin, it was necessary to examine whether the application of the 28-year rule had in practice given rise to a disproportionate prejudicial effect on persons who, like the first applicant, had acquired Danish nationality after birth and were not of Danish ethnic origin.

The possibility that persons who had obtained Danish nationality after birth might not have to w ait for 28 years thereafter but only, as the Government claimed, three years or more, before benefiting from family reunification, did not negate the fact that the 28-year rule had a prejudicial effect on Danish citizens in the same situation as the first applicant.

Moreover, the Court found that it could reasonably be assumed that at least the vast majority of Danish expatriates and Danish nationals born and resident in Denmark (who could benefit from the 28-year rule) would usually be of Danish ethnic ori gin, whereas persons acquiring Danish citizenship at a later point in life, like the first applicant (who would not benefit from the 28-year rule at the same age), would generally be of foreign ethnic origin.

The possibility that persons of foreign ethnic origin who were born in Denmark or arrived there at an early age could also benefit from the 28-year rule did not alter the fact that the rule had the indirect effect of favouring Danish nationals of Danish ethnic origin, and placing at a disadvantage, or having a disproportionately prejudicial effect on, persons of foreign ethnic origin who, like the first applicant, acquired Danish nationality later in life.

In those circumstances, the burden of proof shifted to the Government to show that the difference in the impact of the legislation pursued a legitimate aim and was the result of objective factors unrelated to ethnic origin.

One of the aims of introducing t he 28-year rule was that the previous amendment of the Aliens Act, extending the attachment requirement to apply also to Danish nationals, had been found to have 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 and subsequently had difficulties fulfilling the attachment requirement upon return.

The justification advanced by the Government for introducing the 28-year rule was, to a large extent, based on rather speculative arguments. In the Court’s view, the answer to the question as to when it could be said that a Danish national had created such strong ties with Denmark that family reunification with a foreign spouse had a prospect of being successful from an integration point of view could not depend solely on length of nationality, whether it was 28 years or less. In order to obtain Danish nati onality Mr Biao had already been required, among other things, to have spent 9 years in Denmark and to demonstrate his knowledge of Danish language and culture; in addition, he had previously been married to a Danish citizen for about four years, had parti cipated in various courses and worked in Denmark for more than six years, and had a son who was a Danish national by virtue of his father’s nationality. None of these elements had been, or even could have been, taken into account in the application of the 28-year rule to Mr Biao, although they were indeed relevant when assessing whether his wife had any prospect of successful integration.

The preparatory work relating to the legislation which amended the Act in question reflected negatively on the lifestyle of Danish nationals of non-Danish ethnic origin, for example describing their “marriage pattern”, consisting of “marry[ing] a person from one’s own country of origin”, as contributing to problems of isolation and to “hampering the integration of aliens ne wly arrived in Denmark”. The Court, referring to its case-law to the effect that general biased assumptions or prevailing social prejudice in a particular country did not provide sufficient justification for a difference in treatment on the ground of sex*, found that similar reasoning should apply to discrimination against naturalised nationals.

The Danish Supreme Court, taking the view that the factual circumstances of the present case were identical to those of Mrs Balkandali**, found that the criterion o f 28 years of Danish nationality “had 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”. The Supreme Court considered that the alleged discrimination was based solely on the length of citizenship, a matter falling within the ambit of “other status” within the meaning of Article 14 of the Convention. Accordingly, the proportionality test applied by the Supreme Court was different from the test to be applied by the European Court of Human Rights, which required compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discriminatory effect of the 28-year rule.

In the field of indirect discrimination between a State’s own nationals based on ethnic origin, it was very difficult to reconcile the grant of special treatment with current international standards and developments:

(a) Article 5 § 2 of the European Convention on Nationality , aimed at eliminating the discriminatory application of rules in matters of nationality betw een nationals from birth and other nationals, including naturalised persons, suggested a certain trend towards a European standard which had to be seen as a relevant consideration in the present case.

(b) Neither in the 29 Council of Europe members studie d by the Court, nor in EU law, was any distinction made between different groups of nationals when it came to determining the conditions for granting family reunification.

(c) Various independent bodies had expressed concern about the 28-year rule: the Co mmittee on the Elimination of Racial Discrimination (CERD), the European Commission against Racism and Intolerance (ECRI) and the Council of Europe’s Commissioner for Human Rights.

In conclusion, having regard to the respondent State’s very narrow margin o f appreciation in the present case, the Government had failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discriminatory effect of the 28-year rule.

Conclusion : violation (twelve votes to fi ve).

The Court also found, by fourteen votes to three, that it did not need to examine the application separately under Article 8.

Article 41: 6,000 EUR in respect of non-pecuniary damage.

*  Konstantin Markin v. Russia [GC], 30078/06, 22 May 2012, Information Note 150 .

** Abdulaziz, Cabales and Balkandali v. the United Kingdom , 9214/80 et al., 28 May 1985.

© Council of Europe/European Court o f Human Rights This summary by the Registry does not bind the Court.

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