The European Court of Human Rights (ECtHR) found a violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR) where a provision of Danish law, known as the ‘attachment requirement’, favoured citizens of Danish ethnic origin. With the exception of certain categories i.e. Danish born nationals and Danish expatriates; a person must have had been a Danish national for a minimum of 28 years in order to qualify for family reunification. The ECtHR held that the Government had failed to establish that there was compelling reason, unrelated to ethnic origin, to justify the disproportionate prejudicial effect of the 28 year rule. It was held that the rule was indirectly discriminatory and there was, accordingly, a violation of Article 14, read in conjunction with Article 8.
In this case, a Danish national of Togolese origin and his Ghanaian wife had complained of the refusal of the Danish Authorities to grant them family reunion to settle in Denmark. A requirement of the domestic law placed an onus on citizens to prove that they do not have stronger ties with another country. Here, the government had argued that Mr Biao and his family held closer ties to Ghana.
Mr. Biao complained that a provision in the Aliens Act 2003 which lifted the attachment requirement for Danish nationals who had held citizenship for 28 years previously, resulted in unequal treatment between Danish-born nationals and those who, like the applicant, had acquired citizenship as expatriates and could not therefore avail of the clause. The Government’s rationale for the introduction of this mechanism had been to ensure that Danish expatriates would not meet unnecessary difficulty in meeting the attachment requirement on returning to the country, however the Grand Chamber considered that this justification was based largely on speculative arguments.
The court found that a rule assessing the prospect of integration based solely on the length of time failed to take into account relevant features of Mr. Biao’s case, including the consideration that, having resided in Denmark for nine years, he had proved his knowledge and proficiency in the national language and Danish society, and had fulfilled the requirement of self-support.
Read the press release here.
The judgement is also available here.