April 18, 2014
This post was written by Nadia Ismaili, Ph.D. researcher at the migration law section of the Free University Amsterdam (*)
On 25 March 2014 the second chamber of the European Court of Human Rights handed down its judgment in the case of Biao v. Denmark. The case concerned the refusal to grant family reunion in Denmark to the Ghanaian wife of a naturalized Danish national originally from Togo. The Court decided unanimously that there had been no violation of the right to family life (Article 8). By the smallest majority of four votes to three, the Court held that there had been no violation of the prohibition of discrimination (Article 14) in conjunction with Article 8. This post focuses only on the divided reasoning on the prohibition of discrimination.
The applicants are Mr. Biao, a Danish national of Togolese origin, and his wife Mrs. Biao, a Ghanaian national. Mr. Biao resided in Togo until the age of 6 and subsequently in Ghana until the age of 21. He entered Denmark in 1993 at the age of 22, acquiring Danish nationality in 2002. In 2003 Mr. and Mrs. Biao married and Mrs. Biao applied for family reunification. In 2003 they moved to Sweden and in 2004, the couple had a child with the Danish nationality. The couple currently lives in Sweden with their child.
Their request for family reunion was refused because the couple did not comply with the “attachment requirement”, the requirement for family reunification that only couples whose ties to Denmark are stronger than to any other country (in this case Ghana) can be granted family reunion. In 2003 the legislation was amended to include the “28-year rule”. This rule states that the attachment requirement does not apply to those who have been Danish nationals for 28 years or who have resided lawfully in Denmark for 28 years since birth or childhood.
The couple complained that this amendment causes differential treatment between Danish-born nationals and those who acquire Danish nationality later in life. Compared to a Danish-born national who would be exempt at age 28, Mr. Biao, having become a Danish national at the age 31, would not be exempt from the attachment requirement until the age 59 (in 2030). The couple, in addition, complained that the 28-year rule amounted to indirect discrimination on the basis of ethnic origin, since the majority of Danish-born persons would be ethnically Danish while persons acquiring Danish nationality later in life would overwhelmingly be of different ethnic origins than Danish.
According to the Court, a difference in treatment of persons in similar situations is discriminatory if it has no objective and reasonable justification. The scope of the margin of Member States will vary according to, among other things, the subject matter. Therefore it is important to know what the differential treatment ground is in a specific case.
The Court did not find there to be ethnic discrimination in this case. The Court held that the wording of the 28-year rule does not distinguish between Danish-born nationals and those who acquire Danish nationality later in life, nor does it distinguish between ethnically Danish nationals and ethnically non-Danish nationals. According to the Court, the 28-year rule is a neutrally-worded exception to the attachment requirement.
Despite its neutral formulation, the Court did acknowledge that in practice the 28-year rule resulted in unequal treatment of Danish nationals of ethnic origins other than Danish. However, by referral to the Abdulaziz, Cabales and Balkandali v. the UK case, the Court comes to the conclusion that this is not enough to assume that the applicants were discriminated against on the basis of race or ethnic origin (see § 90). The steps the Court take to dismiss the claim of ethnic discrimination are hardly motivated and thus difficult to follow.
The Court did find a difference in treatment between the applicant who had been a Danish national fewer than 28 years and persons who had been Danish nationals for more than 28 years. The Court thus found discrimination on the ground of the duration of citizenship. In light of art. 14 ECHR this comes down to discrimination on the ground of “other status”.
Objective and reasonable justification?
The result of the finding that in this case it concerned discrimination on the ground of “other status” and not on the ground of race or ethnic origin is that the State’s margin in proving the reasonableness of a measure is much wider. When it concerns differential treatment based on ethnic origin very weighty reasons would have to be put forward before the difference is compatible with art. 14 ECHR” (see Gaygusuz v. Austria). The Court however does not make this consequence explicit in its reasoning.
According to the Court “there are in general persuasive social reasons for giving special treatment to those who have strong ties with a country”. Since the aim of the amendment was to distinguish a group of persons who have lasting and strong ties with Denmark, the Court regarded the 28-year rule as justified. The Court does not explain in any way what those persuasive social reasons actually entail. Interestingly the Court does not stop here. In §99-102, after the conclusion that the 28-year rule pursues a legitimate aim, the Court comes up with a firm critique on the 28-year rule:
99. It is not for the Court to lay down a specific limit for the time that may be required. However, to conclude that in order to be presumed to have strong ties with a country, one has to have direct ties with that country for at least 28 years appears excessively strict.
101. The Court therefore endorses the view of the minority of the Supreme Court that the 28-year rule affected persons who only acquired Danish nationality later in life with a far greater impact than persons born with Danish nationality. In fact, this group of Danes’ chances of reuniting with a foreign spouse in Denmark, and creating a family there, were significantly poorer and, it appears, almost illusory where the residing partner acquired Danish citizenship as an adult, since they either had to wait 28 years after that date, or they had to create such strong aggregate bonds in other ways to Denmark, despite being separated, that they could fulfil the attachment requirement.
102. In these circumstances, the Court must conclude that persons who acquire Danish nationality later in life have very little benefit from the 28‑year exemption. It is even difficult to imagine how a person acquiring Danish nationality at the average age for creating a family can expect to do so with a foreign spouse in Denmark.
The Court then states that its task is not to abstractly review national legislation and that it must confine itself to the issues raised in a specific case. Since the Court in these paragraphs is doing exactly what they afterwards say they won’t do, namely reviewing national legislation, it is unclear to me why these paragraphs are included.
When looking at the proportionality, the Court, for a reason that is again not made explicit, chose 2004 as the relevant time point. In 2004 the husband had only been a national for two years prior to being refused family reunification, and both Mr. and Mrs. Biao had strong ties with Ghana. Therefore, in the Court’s view, the refusal to grant family reunion was not disproportionate.
Three judges issued a dissenting opinion on this case in which they argue that there has been a violation of art. 14 ECHR. The dissent is more thoroughly motivated than the majority’s view and provides a broader overview of the Court’s case-law. I will only address a few points.
In the first part of the dissent, the three judges disagree with the finding that this case concerns discrimination on the ground of “other status”. Although on the surface the ground for the differential treatment is the length of citizenship, what matters according to the dissenters are the effects of the 28-year rule. In this regard it is important that in earlier case-law the Court has already made clear that indirect discrimination is unrelated to the legislative intent. The effects of the 28-year rule result in discrimination based on ethnic origin in the non-racist sense (see § 13). The reasoning that leads to the finding: “non-racist sense” is very unclear to me. According to the dissenters the 28-year rule reinforces a negative stereotype, namely that a marriage with a person from someone’s country of origin reflects a lack of integration (see § 16). The dissenters argue that it cannot be assumed that birth to Danish nationals results in attachment per se.
The second part of the dissent I find very convincing. In this part it is argued that the choice of 2004 as the relevant time is selective and artificial. In 2003 the Aliens Authority first refused the request for family reunification. This decision was upheld in 2004 by the Ministry of refugee, Immigration and Integration Affairs. In 2007 the High Court did not find a violation of the ECHR. In 2010 the judgment of the Supreme Court followed. It is unclear why 2004 is preferred over either 2003, 2010 or even 2014 when the judgment of the ECtHR was delivered. The dissenters point out that the situation of Mr. and Mrs. Biao has an ongoing character and that the Court has at times taken into account developments that occurred since the last domestic proceedings.
Both the judgment of the Danish Supreme Court and the judgment of the ECtHR were decided by a majority of four votes to three. This demonstrates that at the national, as well as at the European level, there is still a lot of discussion as to which situations fall under racial or ethnic discrimination.
In my opinion both the majority and the dissenters are struggling in their reasoning, attempting to find ways to avoid the conclusion that national laws resulting in differential treatment based on someone’s nationality are indeed racial discrimination. Such a conclusion would have major consequences. This has in my view, however, led to a poorly motivated judgment, which is particularly the case when it comes to the dismissal of the ethnic discrimination claim and the choice of the relevant time point.
The dissenters have made clear that a lot of relevant case-law is not included in the majority’s reasoning and that by its choices the majority was able to come up with a highly individual proportionality test. This leaves a lot of questions open. Would there for example have been a different outcome if the applicant would be a naturalized Danish national for twenty years already?
This judgment is not final, the parties may request that the case be referred to the Grand Chamber. Hopefully the applicants will make use of this possibility. Taking the dissenters critique into account would certainly be an opportunity to provide more clarity on the different discrimination grounds and on what the relevant time point ought to be.
(*) Nadia’s research concerns the intersection of migration law with other fields of law relevant to parent-child relations.