FIRST SECTION

Application no. 38590/10 Asia BIAO against Denmark lodged on 12 July 2010

STATEMENT OF FACTS

The first applicant, Ousmane Biao is a Danish national, born in 1971. He is married to the second applicant, Asia Biao, a Ghanaian national. It is not known when she was born. The applicants live in Malmø , Sweden . They are represented before the Court by Mr Steen Petersen, a lawyer practising in Copenhagen .

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first applicant was born in Togo . He went to school in Ghana for ten years and lived with his uncle. In 1993, when he was twenty-two years old, he entered Denmark and requested asylum, which was refused by a final decision of 8 March 1995.

In the meantime, on 7 November 1994 he had married a Danish national. Having regard thereto, 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.

On 25 September 1998, the first applicant and his Danish wife divorced.

On 2 May 2002 the first applicant obtained Danish citizenship.

On 22 February 2003 in Ghana , the first applicant married the second applicant.

On 28 February 2003, at the Danish Embassy in Accra in Ghana the second applicant requested a residence permit in Denmark with reference to her marriage to the first applicant. At that time she was at least twenty ‑ four years old. She stated that she had not visited Denmark . Her parents lived in Ghana . In the application form, the first applicant submitted that he had been to Ghana four times in the previous five years. 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 worked in a slaughterhouse since 15 February 1999. He had no close family in Denmark . He spoke and wrote Danish. The spouses came to know each other in Ghana and they communicated in the Hausa and Twi languages.

At the relevant time, under section 9, subsection 7, of the Aliens Act family reunification could only be granted if both spouses were over 24 years old and their aggregate ties to Denmark were stronger than the spouses ’ attachment to any other country.

On 1 July 2003, the Aliens Authorities ( Udlændingestyrelsen ) refused the request because it could not be established that the spouses ’ aggregate ties with Denmark were stronger than their aggregate ties to Ghana .

By Act number 1204 of 27 December 2003, the said 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-Ã¥rs reglen ). Furthermore, persons born or having arrived in Denmark as small children could be exempted from the attachment requirement.

The applicants appealed against the Aliens Authorities ’ decision of 1 July 2003, to the Ministry of Refugee, Immigration and Integration Affairs (Ministeriet for flygtninge, Indvandrere og Integration, which upheld it on 27 August 2004. The latter noted in particular that the second applicant had always lived in Ghana and had family there, and that the first applicant had ties with Ghana and had, among other things, attended school there for ten years. Finally, it found that the family could settle in Ghana , as that would only require that the first applicant obtain employment there.

In the meantime, in July or August 2003 the second applicant entered Denmark on a tourist visa. On 15 November 2003 the applicants moved to Sweden . They had a son on 6 May 2004.

On 18 July 2006, before the High Court of Eastern Denmark ( Østre Landsret ), the applicants instituted proceedings against the Ministry of Refugee, Immigration and Integration Affairs and invoked Article 8 of the Convention, alone and in conjunction with Article 14 of the Convention, as well as A rticle 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 reunification, that persons who were born Danish citizens were exempted from the attachment requirement altogether, whereas persons who had acquired Danish citizenship at a later point in life had to fulfil 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 2030, thus after 28 years of Danish citizenship, and after having reached the age of fifty ‑ nine.

By a judgment of 25 September 2007 the High Court of Eastern Denmark found that the refusal to grant the applicants family reunification with reference to the 28-year rule and the attachment requirement did not contravene the invoked Articles of the Convention or the European Convention on Nationality.

The applicants appealed against the judgment to the Supreme Court ( Højesteret ), which passed its judgment on 13 January 2010 confirming the High Court judgment.

The Supreme Court found, unanimously, that it was not in breach of Article 8 of the Convention to refuse to grant the second applicant a residence permit in Denmark .

Moreover, the majority of the Supreme Court (four judges) found that the 28-year rule was in compliance with Article 8 of the Convention in conjunction with Article 14 of the Convention. Those judges referred to the Court ’ s case law, notably Abdulaziz, Cabales and Balkandali v. the United Kingdom , 28 May 1985, Series A no. 94, in which it was not disputed that the so-called 1980 rules had established a difference of treatment on the ground of birth. The argument was thus centred on the question of whether it had an objective and reasonable justification. The former Commission took the view that a difference of treatment based on the mere accident of birth, without regard to the individual ’ s personal circumstances or merits, constituted discrimination in violation of Article 14. The Court disagreed and stated among other things, in paragraph 88, that “t he aim cited by the Government is unquestionably legitimate, for the purposes of Article 14. 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 link with a country stems 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”.

In the case before it, the said four judges noted that the attachment requirement and the 28 ‑ year rule had been introduced with the legitimate aim of securing the best possible integration of foreigners. In particular, as to the 28-year rule, they found that usually a 28-year old person, who was born as a Danish citizen, including an expatriate, would have a greater attachment to Denmark and a stronger identification with Danish society, than a 28 ‑ year old, who as a young person or adult had obtained attachment to Danish society. Thus, in their view, the 28-year rule was based on neutral and reasonable criteria, which objectively justified giving special treatment to a group of citizens, who in general had such a strong attachment to Denmark that it would be unproblematic to grant family reunification to their foreign spouse or partner, since in most such cases the integration would be successful. Accordingly, in their opinion, the results of the 28 ‑ year requirement had not been shown to transgress the principle of proportionality.

Moreover, in the concrete circumstances of the case, where the first applicant entered Denmark as an adult, became a Danish citizen after nine years of stay, and was refused family reunification after having been a Danish Citizen for two years, the majority found that the refusal to grant the second applicant family reunification could not amount to a breach of Article 8 in conjunction with Article 14 of the Convention. Finally, like the High Court, the majority of the Supreme Court considered that Article 5 (2) of the European Convention on Nationality did not have a more extensive scope of application than Article 14 of the Convention.

A minority of three judges was of the view that the 28-year rule implied an indirect discrimination between persons who were born Danish citizens and persons who had acquired Danish citizenship later in their 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 entailed an indirect discrimination between ethnic Danish citizens and Danish citizens with a foreign ethnic background.

They noted that pursuant to the preparatory notes to section 9, subsection 7 of the Aliens Act, the provision should be administered in such a way that foreigners who were born and raised in Denmark, or who entered the country as younger children and had been raised in the country, had to be treated on an equal footing with Danish citizens, so that they were also exempted from the attachment requirement, when they had stayed legally in Denmark for 28 years. That did not change the fact, however, that persons who had not been raised in Denmark and who only later in their life obtained Danish citizenship, were discriminated against. The minority also noted that in 2002, when the attachment requirement was introduced to apply also to Danish citizens, it was based on the reason that foreigners in Denmark and Danish citizens with a foreign background had a prevalent pattern of marrying persons from their home country, maybe due to pressure from their parents; and that there might be Danish citizens who were not well integrated in the Danish society; and that therefore it might be very difficult for their spouses to integrate in the country. Furthermore, when in 2003 the attachment requirement was limited for Danish citizens by introducing the 28-year rule into the said provision, it was to secure for expatriates with a strong and permanent attachment to Denmark in the form of at least 28 years of citizenship the possibility to obtain family reunification in Denmark . Accordingly, in the minority ’ s view the legislator had intended an indirect discrimination between ethnic Danish citizens and Danish citizens with a foreign ethnic background.

In the minority ’ s opinion decisive weight could not be given to the statements by the Court in Abdulaziz, Cabales and Balkandali v. the United Kingdom , quoted above, §§ 87-89, inter alia , because a differential treatment based on the length of citizenship was not comparable with a differential treatment based on place of birth.

As to the interpretation of Article 5 (2) of the European Convention on Nationality, the minority considered it doubtful whether its scope could be restricted to matters concerning acquisition and loss of citizenship, as argued by the Ministry of Refugee, Immigration and Integration Affairs, since literally the provision comprised any difference in treatment between citizens whether they were citizens by birth or had acquired their citizenship subsequently. Thus, when comparing Article 5 (2) of the European Convention on Nationality to Article 14 of the Convention, it should in the opinion of the minority be taken into consideration that, according to the wording of Article 5 (2) of the European Convention on Nationality, difference in treatment between different groups of citizens was as a starting point prohibited.

In sum, the minority did not find a reasonable justification for the indirect discrimination stemming from the 28-year rule and therefore found that Article 14 in conjunction with Article 8 of the Convention had been breached.

B. Relevant domestic law and practice

1. The Aliens Act

The basic provisions concerning the right of aliens to enter and to remain in Denmark , including the criteria for obtaining family reunification, are laid down in the Aliens Act (Udlændingeloven, no. 947 of 24 August 2011).

Until 2002, family reunification between a Danish national and a third country national spouse required, as a general rule, that both spouses be over 24 years old.

By Act no. 365 of 6 June 2002, more strict conditions for family reunification were introduced, and the scope of the so-called “attachment requirement”, according to which the couple ’ s aggregate ties to Denmark (“the overall attachment”) should be stronger than the couple ’ s attachment to any other country, was extended to comprise Danish citizens (as well as foreign residents).

In 2003, criticism of the consequences for Danish expatriates led to an amendment introduced by Act no. 1204 of 27 December 2003, in force as of 1 January 2004, exempting from the attachment requirement persons who had held Danish citizenship for at least 28 years.

It thus appears that on 1 January 2004, the relevant provisions of the Aliens Act read as follows:

Section 9, subsection 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;

(b) is a national of one of the other Nordic countries;

(c) is issued with a residence permit under section 7 or 8; or

(d) has held a permanent residence permit for Denmark for more than the last 3 years ...

Section 9, subsection 7

Unless exceptional reasons make it inappropriate, including regard for family unity, a residence permit under subsection 1, (i)(a), when the person living in Denmark has not been a Danish national for 28 years, ... 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. Danish nationals living in Denmark who were adopted from abroad before their sixth birthday and who acquired Danish nationality not later than at their adoption are considered to have been Danish nationals from birth.

Pursuant to the preparatory notes to section 9, subsection 7 of the Aliens Act at the relevant time, the provision should be administered so that foreigners who were born and raised in Denmark, or who entered the country as younger children and have been raised in the country, had to be treated on an equal footing with Danish citizens, so that they were also exempted from the attachment requirement, when they had stayed legally in Denmark for 28 years.

2. The Danish Constitution of 5 June 1953 (Grundloven)

Section 63 of the Constitution read as follows:

“1. The courts of justice shall be empowered to decide any question relating to the scope of the executives ’ authority; though any person wishing to question such authority shall not, by taking the case to the courts of justice, avoid temporary compliance with orders given by the executive authority.”

Review by the courts of the Administration ’ s general and specific decisions pursuant to section 63 of the Constitution is a common legal remedy. Consequently, in cases where an alien claims that a refusal to grant a residence permit or a deportation order would be in violation of the Convention, the courts examine intensively whether the Administration ’ s decision is in accordance with Denmark ’ s obligations under the Convention, including Article 8.

3. The European Convention on Nationality, ETS 166 of 6 November 1997

Article 5

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.

COMPLAINTS

The applicants complain that the decision of 27 August 2004 by the former Ministry of Refugee, Immigration and Integration Affairs to refuse to grant the second applicant a residence permit in Denmark based on family reunification breached their rights under Article 8 of the Convention, alone and in conjunction with Article 14 of the Convention.

QUESTIONS TO THE PARTIES

1. Was the Danish authorities ’ refusal to grant the second applicant family reunification in Denmark in breach of the applicants ’ right to respect for their family life within the meaning of Article 8 of the Convention?

2. Has the first applicant suffered discrimination in the enjoyment of his Convention rights contrary to Article 14 of the Convention read in conjunction with Article 8 due to the so-called 28-year rule which applied to him when the Danish authorities refused the applicants family reunification?

3. When was the second applicant born?

4. In May 2002, what were the criteria and the procedure for the first applicant to obtain Danish nationality?