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Denmark/European Court of Human Rights: Violation of Human Rights by Differentiation Among Danes for Family Reunification Purposes

(Aug. 5, 2016) On May 24, 2016, the European Court of Human Rights (ECHR) Grand Chamber, sitting en banc, issued a ruling on the Biao v. Denmark case, finding that Denmark had violated article 14 of the European Convention on Human Rights by having different rules for family reunification of Danes depending on how long the sponsoring individuals have been Danish citizens. (Biao v. Denmark, App. No. 38590/10 (May 24 2016), ECHR Grand Chamber, HUDOC (ECHR official website).) The decision overturns the ECHR decision of March 25, 2014, issued in connection with the case. (Biao v. Denmark, App. No. 38590/10 (Mar. 25, 2014), ECHR Second Section, HUDOC.)

Under Danish law, persons wishing to reunite their families in Denmark must show that they do not have greater aggregate ties to another country. (§ 9 ¶ 7 Udlændingeloven [Aliens Act], LBK nr 412 af 09/05/2016, RETSINFORMATION.DK.) However, persons born in Denmark or citizens who have been citizens for at least 26 years (it was 28 years at the time of the refusal of Biao’s reunification request) are exempt from this requirement. (Id.)

Background

In the case at hand, a Danish citizen of Togolese decent, Ousmane Biao, who had grown up in Ghana, wanted to reunite with his wife, whom he had met while on a vacation in Ghana. The Danish authorities found that the family as a whole had a greater connection to Ghana and easily could relocate there and therefore denied their family reunification application. Biao initiated a case against Denmark, arguing discrimination on the grounds that Danes who had been citizens for 28 years were exempt from the requirement to show attachment to Denmark. (Biao v. Denmark, Grand Chamber, ¶¶ 15-18, 24-25.)

After losing in the Danish Supreme Court and the ECHR, Biao appealed his case to the Grand Chamber of the ECHR, which concluded:

the Government have [sic] 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. That rule favours Danish nationals of Danish ethnic origin, and places at a disadvantage, or has a disproportionately prejudicial effect on persons who acquired Danish nationality later in life and who were of ethnic origins other than Danish.  … It follows that there has been a violation of Article 14 read in conjunction with Article 8 of the Convention in the present case. (Id. ¶¶ 138-139.)

In an immediate response to the outcome of the case, the Danish Minister for Integration announced that Denmark will comply with the decision but change the country’s family reunification rules. She stated that if family reunification cannot be limited based on the 28-year principle, Denmark will find another way to limit family reunification when the family holds greater ties to another country. (Danmark dømt for diskrimination: Støjberg indkalder partier, POLITIKO (May 24, 2016).)