DISSENTING OPINION OF JUDGE YUDKIVSKA

I voted against finding a violation of Article 14 in the present case, although I can share the majority ’ s view that “the 28-year rule had the indirect effect of favouring Danish nationals of Danish ethnic origin”. Nevertheless, strictly legally speaking, I see this case from a different perspective.

In the present case the “attachment requirement” pertaining to Danish nationals for purposes of family reunification was introduced in 2002. The applicants got married in 2003 (when the first applicant had been a Danish national for one year only), being perfectly aware of the fact that they were unlikely to satisfy the said requirement. Following the refusal to grant them family reunion, they appealed. Meanwhile, the g overnment had introduced the impugned 28-year exemption clause, which gave the applicants the possibility in their further appeals not only to complain of the refusal of family reunification, but also to invoke discrimination. Nonetheless, their inability to overcome the “attachment requirement” in order to reside together in Denmark remained the essence of the applicants ’ grievance.

In the special circumstances of the applicants ’ case, the Court was prevented from analysing the “attachment requirement” itself or its compatibility with the Convention. According to the relevant documents submitted by the Government, when extending the “attachment requirement” to Danish nationals back in 2002 the authorities were concerned that “integration [was] particularly difficult in families where generation upon generation fetch[ ed ] their spouses to Denmark from their own or their parents ’ country of origin” (see paragraphs 33 and 106 of the present judgment). In other words, according to them, this tradition resulted in a cumulative detachment from Danish society and marginalised part of that society. But this certainly did not concern those Danish citizens who moved for work to foreign countries and raised children there; they remained very much involved in Danish society, as did their children. There was much less risk of marginalisation if such a child, raised abroad, was to bring his/her spouse to Denmark. Therefore the Government introduced the 28-year exemption in issue in the present case, which, as the majority established, had “a disproportionately prejudicial effect on persons ... who were of an ethnic origin other than Danish” (see paragraph 104 of the present judgment).

The minority in the Supreme Court of Denmark stated that “ [ i ] n an assessment made under Article 14 of the Convention read in conjunction with Article 8, another factor to be taken into consideration [was] the crucial importance of being entitled to settle with one ’ s spouse in the country of one ’ s nationality” (see paragraph 30 of the present judgment). However, the p rima facie scope of Article 8 alone does not protect the choice of a family to reside in a State if one of the spouses is a non-national of the State concerned, and a State would fall short of its obligations under this provision when it comes to a ban on family reunification for non-nationals only in very serious circumstances.

However, in the instant case Article 14 changed the Grand Chamber ’ s analysis, focusing it on the fact that the 28-year rule impaired the ability of Danish nationals with a particular ethnic background to enjoy life together with a non-Danish spouse in Denmark on a basis of equality with other Danish nationals. Thus the majority extended the protective scope of Article 8, using Article 14 of the Convention. It is true that Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention, but such a broad concept of its ambit without sufficient connection to the substantive Convention guarantee makes it vague and indistinguishable from Protocol No. 12.

But what is more, under Article 14 taken together with Article 8, we must assess whether the action or measure complained of affected the applicants ’ enjoyment of the right set out in Article 8 in a discriminatory manner. The Court, from the Case “relating to certain aspects of the law on the use of languages in education in Belgium” ((merits), 23 July 1968, Series A no. 6) onwards, has constantly emphasised that a State distinction that affects the equal enjoyment of Convention rights is unlawful discrimination, unless justified.

Here we find ourselves in a rather paradoxical situation, as has been stressed by my dissenting colleagues. What is surely problematic in respect of the applicants ’ right to family reunification in Denmark is the “attachment requirement” of 2002. But, as noted above, we are limited in our examination of the case to analysis of the 28-year exemption rule, which gives preference to a certain group and allows them to “avoid” the general attachment requirement. It is this exemption which was found by the majority to amount to indirect discrimination. As underlined by Judges Villiger , Mahoney and Kjølbro , the most evident way of complying with this judgment would be to abolish the exemption from the attachment requirement, so that no one would be equally entitled to avoid the latter. Thus, the equality will be achieved in terms of equal “non-enjoyment” of a right. The applicants would nevertheless still be unable to enjoy family reunification in Denmark. In other words, what the applicants can gain as a consequence of their victory is not their equal entitlement to family reunification (which was their primarily goal), but equal non-entitlement to family reunification together with others who were formerly so entitled.

Here lies my principal disagreement with the majority. I cannot interpret Article 14 of the Convention as aiming to achieve equality by any means, including by equating incommensurable interests. In the event of revocation of the impugned exemption clause, a feeling of satisfaction for the applicants that they would no longer be differentiated as migrants is perfectly understandable, but it is of the utmost importance that their core Article 8 right will remain intact, whilst the Article 8 rights of the other group of Danish citizens will be significantly impaired.

I cannot agree more with the US Supreme Court Justice Stephen Breyer , according to whom “the judge must examine the consequences [of his/her judgment] through the lens of the relevant constitutional value or purpose”. The purpose of Article 14 is to guarantee “the enjoyment of the [Convention] rights and freedoms ... without discrimination”, but it will lose its paramount value, in my view, if interpreted as guaranteeing “equal non-enjoyment” of rights. Therefore I concur with my dissenting colleagues that “the majority ’ s endeavour to secure what they perceive to be the human rights of the individual applicants in the instant case may be at the expense, and to the detriment, of the immigration rights and interests of other persons” who have strong ties with Denmark.

As the eighteenth-century English writer Samuel Johnson once said, “it is better that some should be unhappy rather than that none should be happy, which would be the case in a general state of equality”.

Bearing in mind that discrimination in the present case, as found by the Grand Chamber, can be resolved by removing the 28-year exemption clause not to the satisfaction of the applicants but to the detriment of others, I voted against the finding proposed by the majority.

[1] . Abdulaziz , Cabales and Balkandali v. the United Kingdom , 28 May 1985 , § 88, Series A no. 94 .

[2] . These two terms are used interchangeably by international organisations. For example, the Parliamentary Assembly of the Council of Europe (PACE) has used “family reunion” in Recommendation 1686 (2004) but more often “family reunification”, as in Recommendation 1703 (2005) (see the instruments listed in paragraph 23 below). I n People on the Move: Handbook of selected terms and concepts (p. 28), UNESCO defines “family reunion/reunification” as “the process of bringing together family members, particularly children, spouses and elderly dependents”. I have struggled with the Court’s position on this difficult topic already in my separate opinion in De Souza Ribeiro v. France ( [GC] , no. 22689/07, ECHR 2012 ) , from the perspective of the right of undocumented migrants to family life.

[3] . See, among other authorities, Jeunesse v. the Netherlands [GC], no. 12738/10, § 116 , 3 October 2014 .

[4] . I nevertheless note that during the Grand Chamber hearing the Government seemed to take a different position, suggesting that the twelve -year exception would not be applicable at that time. Moreover, the Government have always refused to undertake to allow Mr Biao ’ s family reunification on national territory, even though the Aliens Authority is under their authority.

[5] . S ee, for example, Burden v. the United Kingdom [GC] , no. 13378/05, § 60, ECHR 2008, and Stec and Others v. the United Kingdom [GC] , nos. 65731/01 and 65900/01, §§ 51-52, ECHR 2006-VI.

[6] . See, for example, 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; and Andrejeva v. Latvia [GC ], no. 55707/00, § 87, ECHR 2009.

[7] . See D.H. and Others v. the Czech Republic [GC] , no. 57325/00, § 176 , ECHR 2007 -IV , and Timishev v. Russia , no s . 55762/00 and 55974/00, § 58, ECHR 2005 -XII .

[8] . See my separate opinion in Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09 , ECHR 2013 ; see also Stec and Others , cited above, §§ 61 and 66, and Wintersberger v. Austria ( dec. ), no. 57448/00, 27 May 2003.

[9] . S eventeenth periodic reports of States parties due in 2005 , UN Doc. CERD/C/496/Add.1 , 2 September 2005 .

[10] . S ixth periodic report of States parties , UN Doc. CEDAW/C/DNK/6, 4 October 2004, p p . 62-63.

[11] . This was also the applicants’ central claim during the Grand Chamber hearing, namely that the Government had there by created a “first class” of ethnic expatriates and a “second class” of non-Danish nation als from non-Western countries.

[12] . As the High Court also acknowledged, “ [ i ] n 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” (see paragraph 26 of the present judgment).

[13] . One should not forget the just criticism addressed by the Grand Chamber to the Government about the lack of pertinent statistical data in the present case (see paragraphs 84 - 85, 118 and 133 of the present judgment). The CEDAW also noted the absence of statistics on the incidence of forced marriage in its 2006 concluding comment.

[14] . ETS 166. This Convention came into force in respect of Denmark on 1 November 2002. A reservation was made to Article 12.

[15] . See paragraph 132 of the present judgment.

[16] . See paragraphs 52-55 of the present judgment.

[17] . See paragraph 49 of the present judgment.

[18] . See paragraph 60 of the present judgment.

[19] . It cannot be argued that the Court should not amend non-binding policy-based recommendations into legally binding obligations. The Convention must be interpreted taking into account not only other human rights treaties, but also hard and soft law instruments related to it and especially the system of human rights protection of the Council of Europe within which it fits, as Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties provides (for a recent, laudable example, see Harakchiev and Tolumov v. Bulgaria , nos. 15018/11 and 61199/12, § 204, 8 July 2014).

[20] . This Convention came into force on 2 September 1990 and has 196 States P arties. It was ratified by Denmark on 19 July 1991. No reservation was entered wi th regard to Articles 9 and 10.

[21] . This Convention came into force on 1 July 2003 and has forty-eight States P arties. Denmark is not a P arty.

[22] . UN Doc. A/RES/41/85, 3 December 1986.

[23] . ETS 35. The initial version of the Charter was signed and ratified by Denmark, but Article 19 was not included in its declaration, made in accordance with Article 20 § 1 (b) and (c), that was handed to the Secretary General at the time of deposit of the instrument of ratification .

[24] . ETS 1 63. The revised version of the Charter was signed on 3 May 1996, but not ratified by Denmark. No reservation was made to Article 19.

[25] . ETS 93. There are eleven ratifications of this Con vention, not including Denmark.

[26] . The Committee of Ministers here expresses its support for family re unification on the basis, firstly , of the “universally recognised right” to the safeguarding of family unity and, secondly, because of its contribution to successful integration. The R ecommendation states that family members admitted under family reunification should be granted the same residence status as that held by the principal migrant , and that after four years, adult family members should be granted independent permits. In the case of the divorce, separation or death of the principal migrant, the R ecommendation calls on member S tates to consider granting autonomous residence permits for family members who have been legally resident for at least one year. It also advocates a right of appeal for those family members whose permits are not renewed and/or who are threatened with expulsion. The R ecommendation also recommends equal treatment to that of the principal migrant in relation to access to the labour market, education and social rights , a nd to political participation (the right to vote and to stand in local - authority elections).

[27] . See paragraph 51 of the present judgment.

[28] . AS/ Mig (2012) 01, 2 February 2012.

[29] . See Report from the Commission to the European Parliament and the Council of 8 October 2008 on the application of Directive 2003/86/EC on the right to family reunification ( COM( 2008) 610 final) and especially the Communication from the Commission to the European Parliament and the Council on guidance for application of Directive 2003/86/EC on the right to family reunification (COM(2014) 210 final). It is highly significant that the Court did not shy away from interpreting EU law in paragraph 135 of the present judgment, considering the domestic law to a certain degree incoherent with Directive 2004/38/EC, along the lines proposed by the Government, since “the applicants and their child now have a prospect of success in applying from Sweden for a residence permit in Denmark”.

[30] . Article 74 of the Protocol Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of International Arme d Conflicts (Protocol I, 8 June 1977).

[31] . The “clear and uncontested evidence of a continuing international trend” was the relevant test in Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 85, ECHR 2002-VI.

[32] . I note that the citation in the Chamber’s judgment in Biao from Abdulaziz , Cabales and Balkandali was incorrect, since the Court never used the wording “or from being a national or a long term resident” in the cited passage . Moreover, I would draw attention to the fact that the other source cited by the majority of the Chamber, namely Ponomaryov and Others v. Bulgaria ( ( dec. ), no. 5335/05, 18 September 2007 ) , did not use that wording either, and even departed from it. While Abdulaziz , Cabales and Balkandali referred to “birth within” a country, that decision only mentioned a “special link with a country”. Thus, the Ponomaryov and Others decision cannot be used as confirmation of Abdulaziz , Cabales and Balkandali .

[33] . See the explicit reference by the minority of the Commission in Abdulaziz , Cabales and Balkandali , cited above, § 84.

[34] . As formulated in Golder v. the United Kingdom ( 21 February 1975, § 35 , Series A no. 18 ), the Convention should be interpreted in the light of general principles of law and especially “general principles of law recognized by civilized nations” (Article 38 § 1 (c) of the Statute of the International Court of Justice). Family reunification is one such principle, as was shown previously.

[35] . A family- friendly policy would have pointed in that direction, such as that adopted long ago by the Portuguese Constitutional Court in its decisions 187/1997, 470/1999 and 232/2004, which prohibit expulsion of convicted foreigners, even for serious crimes like drug trafficking, when they have one or more children of minor age and of Portuguese nationality residing in Portugal. Expulsion in this case would imply one of two constitutionally inadmissible consequences: either the separation of the family, with the indirect consequence of the “punishment” of the members of the family of minor age; or the “indirect” expulsion of the Portuguese minor from Portuguese territory, in order to live with his or her expelled, non-national parent. Children should not suffer the consequence s of their parents’ misconduct.

[36] . Jeunesse , cited above, § 121.

[37] . Once again, the mechanical repetition of this formulation can be found in paragraph 117 of the present judgment. And once again also, the Court di d embark on an assessment of Mr Biao’s “concrete” family circumstances in order to depart from the stated general position.

[38] . The most recent and significant “erosive” decision of the Court was evidently Jeunesse ( cited above ) , which used the artifice that “the circumstances of the applicant’s case must be regarded as exceptional” (§ 122). In this regard, the minority judges, who were attentive to the erosive potential of this artifice, denounced something obvious. The same erroneous methodological approach was used in De Souza Ribeiro (cited above, § 95), as I mentioned in my separate opinion.

[39] . I am not convinced by the majority’s analysis of the international and comparative law materials in paragraphs 61 and 132 - 33. They lack precision. A more rigorous study would have demonstrated that there is at least “clear and uncontested evidence of a continuing international trend”, which was the relevant test in Christine Goodwin (cited above, § 85). For example, no attention was given to the fact that forty-seven States are now P arties to the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of T heir Families, Article 44 § 2 of which states that “States Parties shall take measures that they deem appropriate and that fall within their competence to facilitate the reunification of migrant workers with their spouses or persons who have with the migrant worker a relationship that, according to applicable law, produces effects equivalent to marriage, as well as with their minor dependent unmarried children”.

[40] . A telling example of this practice is the Ministry’s decision of 27 August 2004, which found that the Biao family could settle in Ghana, as that would only require that the first applicant obtain employment there (paragraph 24 of the present judgment). As if Mr Biao could easily exchange an eleven-year-long professional career in Denmark for a comparable professional situation in Ghana (as the applicants pointed out in the Grand Chamber hearing, not contested by the Government)!

[41] . See, for example, Jeunesse , cited above, § 107.

[42] . See paragraph 14 of the PACE “Position paper on family reunification”, cited above.

[43] . See, for example, paragraph 26 of the present judgment.

[44] . As in Jeunesse , cited above, § 120, the Court could have concluded that “insufficient weight was given to the best interests of the applicant’s children in the decision of the domestic authorities to refuse the applicant’s request for a residence permit”.

[45] . A law, regulation or policy which brings about equality through “levelling down” the enjoyment of a Convention right by an advantaged group of people with an identifiable characteristic in comparison with another disadvan taged group of people c ould be censured by the Court’s review ( see Runkee and White v. the United Kingdom , nos. 42949/98 and 53134/99, §§ 40-43, 10 May 2007).