September 21, 2021
By Helga Molbæk-Steensig
What determines whether a state is a good faith interpreter? Can a state claim a generally accepted policy goal as a legitimate aim for human rights interferences if it no longer pursues that policy goal itself? What, if any, role do letters and reports from international human rights bodies play if they have already warned the state that its current administration might be in non-compliance with a human right? The recent Grand Chamber judgment, M.A. v Denmark, raises these questions and cites background documentation to deal with some of them, but falls short of providing clear answers.
M.A. v Denmark concerns a Syrian national who received asylum in Denmark in June 2015 but had his request for reunification with his wife rejected in July 2016 because he had not yet resided in Denmark for the mandatory three-year waiting period. A one-year waiting period had been introduced in Bill L72 in February 2015 as a response to the high influx of refugees from Syria. This waiting period was only applied to refugees who had received generalised protection (Para. 7(3) in the Aliens Act) rather than individualised protection (Aliens Act 7(1) or (2)). M.A. had originally applied for individualised protection but had only been granted generalised protection. In Bill L87, enacted in January 2016, the waiting period for this group was increased to three years. The explanatory notes to Bill L78 state that the waiting period was part of an effort to make Denmark less attractive to refugees. Thomas Gammeltoft-Hansen and Mikael Rask Madsen’s piece on the Verfassungsblog provide additional national context and discuss this deterrence approach. This blog will instead dive into the judgment’s engagement with the margin of appreciation, and the question of legitimate aim.
M.A. instituted proceedings in the Danish judicial system shortly after the rejection of his request for family reunification by the Immigration Appeals Board. He argued that Denmark was violating his Convention right to family life (Article 8) and discriminating against him (Article 14 in conjunction with Article 8) based on his refugee status under the Aliens Act 7(3); a status he, due to the structure of the Danish asylum system, had no opportunity to challenge (para 16, 20). Following rejection of the case by regular courts and the Supreme Court, he launched his case with the ECtHR in January 2018. By the time the case was communicated to the state in September 2018, M.A. had already resided in Denmark for three years and had launched another request for family reunification. This time family reunification was granted, and his wife entered Denmark in September 2019. After relinquishment by the Chamber, the Grand Chamber delivered its judgment on July 9th, 2021, finding, by sixteen votes to one, that M.A.’s right to family life under Article 8 had been violated. Without questioning a two-year waiting period for family reunification, it found that the three-year period with no individual assessment was an excessive interference with the applicant’s right to family life. There was a sole dissent from judge Mourou-Wikstrom, who viewed the majority’s decision not to question a two-year waiting period, but to find a three-year waiting period a violation of Article 8 to be an overly prescriptive meddling into Contracting States’ laws on migration (para 1-6, 30-32).
When determining the width of the margin of the appreciation, the ECtHR emphasises domestic institutions’ – especially domestic courts’ – application of the Convention. In the literature, this is often referred to as the ‘procedural turn’, sometimes linked with the pushback or backlash against the legitimacy of the Court. Başak Çali has demonstrated how the focus on procedure is not equal at the ECtHR but is primarily applied when states have demonstrated that they are ‘good faith interpreters’ with a legitimate expectation of co-sharing of the interpreting task.
In order to benefit from this procedural turn, the Danish state attempted in M.A. v Denmark to paint itself a good-faith interpreter. The Danish Supreme Court helped with this strategy: its 2017 judgment (substantial parts cited in para 22 and dissenting judge Mourou-Wikstrom described it as ‘exemplary in many ways’ (paras 25-26)), shows an in-depth engagement with the Convention and the case-law of the ECtHR. A key conclusion reached by the Supreme Court was that existing ECtHR case-law was not applicable to M.A.’s case. It argued for example that in other cases where individuals had had to wait for family reunification, such as Tanda-Muzinga v. France, Mugenzi v. France and Senigo Longue and Others v. France, the ECtHR had not questioned the mandatory waiting period, but instead found violations due to the unreasonably lengthy application and visa processing times, which was not the problem facing M.A. in Denmark. The Supreme Court thus implicitly suggested that effective administration ought to widen the margin of appreciation. The ECtHR paid a lot of attention to the thorough reasoning of the Supreme Court (paras 149, 181-191) and agreed that it had not reviewed a case such as this one before (paras 130, 140), and as a result the government could not benefit from guidance from established case-law (paras 178, 192). A combination of the lack of guidance, the thorough treatment of the human rights obligations by the Supreme Court (para 149), and the determination that there was no clear European consensus on the subject of waiting periods (para 151), led the ECtHR to determine that the state should be granted a wide margin of appreciation (para 161).
Regardless of the wide margin, the Court still found that Denmark had violated M.A.’s right to family life under Article 8. While it did not directly question Denmark’s good faith, there are indicators that certain factors may have chipped away at the good-faith image. Included in the facts of the case is, for example, information about how Danish legislators had openly accepted a so-called ‘process-risk’ of a violation judgment at the ECtHR:
“there is a certain risk that …, the ECtHR may decide that Denmark cannot generally make it a condition for family reunification that [refugees with generalised protection] have resided for three years in Denmark.” (para. 33, ‘accepting the process-risk’ in the preparatory works to Bill L 87)
Dissenting judge Mourou-Wikstron read this paragraph in the preparatory work on L87 not as the state deciding to legalistically test the limits of its human rights obligations, but rather as a proof that Parliament had already conducted a balancing exercise (para 18) presumably in good faith. On this point, I venture that had Judge Mourou-Wikstrom been a native Danish speaker with access to records of the parliamentary debate on L87, she might have viewed this point differently. The majority, for its part, cited this passage on process-risk but did not engage with it directly in its balancing or determination of good faith and legitimate aim.
Included in the facts of the cases were also an array of warnings to the Danish Parliament. Before the passing of Bill L87, the Danish Institute of Human Rights and the Council of Europe Commissioner for Human Rights (para 106) had both warned Parliament that the bill might violate the right to family life. Shortly after the bill passed, the 2016 United Nations Human Rights Committee report on Denmark also raised concerns regarding the bill and made recommendations to change it (para 110). The ECtHR cited these warnings from human rights monitoring bodies (paras 60, 111, 154), but limited their use in the balancing argumentation and did not use them at all for a discussion on legitimate aims.
The power of the Human Rights Commissioner, the national human rights institutions, and the UN human rights monitoring bodies is soft and nudging, but it does provide information to and about the state. Both the letter from the Commissioner and the Human Rights Committee’s report were specific in their critique of and recommendations for the legislation on family reunification. Taken together with the explicit acceptance of a risk of a violation judgment in the preparatory works of the law, the claim that the state did not have the benefit of clear guidance from established case-law and therefore could not know that its legislation would be a violation of the right to family life, is unconvincing. One might go as far as suggesting that the state had no intention of applying the Convention in good faith as it was looking for loopholes and pressing the boundaries of the rights.
The ECtHR based its judgment first and foremost on a balancing argument, weighing the interference on the applicant’s right to family life with the state’s interests in controlling the influx of refugees. It compared the Danish rules with the family reunification restrictions in place in other European states. Eventually it concluded that, while it would not question the rationale of the two-year waiting period currently allowed for states under EU-law, Denmark’s three-year waiting period for family reunification with no options for individualised assessment was excessive (paras. 162, 192, 194). The choice not to question the rationale of the two-year waiting period at all is odd from a practical and effective human rights protection perspective. Certainly, even if it is not a violation, a two-year wait is still a human rights interference within the scope of the Convention, and therefore something the ECtHR is tasked with questioning. The decision of the ECtHR not to question the two-year period is therefore likely better explained as a deference to the European Court of Justice, which in the 2006-case European Parliament v. Council, C-540/03 had rejected the European Parliament’s request for annulment of the Council directive 2003/86/EC’s allowance for states to impose a two year waiting period for family reunification, which the European Parliament claimed was a violation of international law, including the ECtHR Article 8 (M.A. v Denmark para 50).
The Court’s focus on balancing suggests that it accepted the government’s policy goals as legitimate aims. There are however several oddities related to these aims. The government claimed immigration control in the face of the large influx of refugees as its main legitimate aim (paras 94, 142-143). Something the ECtHR accepted (para 147). By 2016 however, the number of asylum applications to Denmark was lower than expected (para 85), and by 2017 it had returned to usual levels (para 63). The ECtHR noted that this decrease in applications had not prompted the government to revise the rule even though it had an inbuilt revision in 2017/18 (para 180). It did not, however, consider directly whether this failure to change policies with changing circumstances brought the legitimate aim into question.
The other legitimate aim claimed by the government, integration, is even more dubious. First, there are diverting opinions about whether integration can really be said to benefit from the denial of family-reunifications. The Danish Supreme Court (para 22) and government (para 95) argued that the resulting lower number of aliens is key in ensuring integration of aliens already in the country. Meanwhile, the applicant argued that the lack of family unity negatively impacts mental health and makes successful integration less likely (para 83). The ECtHR accepted the aim of integration as a reason to control immigration on part of the state, but also noted the legitimate doubt raised by the applicant (para 165). At the time of the ECtHR’s judgment however, the aim and the language of integration had already been removed from large parts of the Aliens Act. This happened with the so-called paradigm-shift in 2019, where the government officially abandoned integration as a policy goal for refugees with temporary residence, focusing instead on ‘preparation for repatriation’.
Can a state that no-longer officially pursues an integration agenda for a category of refugees claim integration as a legitimate aim for its interferences with their fundamental rights? The Danish Supreme Court avoided having to answer this question by only taking into account the circumstances that existed when the Refugee Appeals Board’s issued its decision in 2016 (para 22), when integration was still a policy goal in the Aliens Act. The ECtHR took a similar approach by reviewing only the circumstances at the time of the rejection of the family reunification application (para 128). This also allowed the ECtHR to ignore the government’s claim that Syria was in any case safe to return to in 2018 (para 99), something very few outside Denmark believe to be true.
M.A. v Denmark is a rare case where the state has been granted a wide margin of appreciation, but the result is nonetheless a violation-decision. The judgment is extremely carefully worded. The Court chose not to directly question the legitimacy of the state’s policy aims nor its calculating and legalistic approach to compliance with the Convention, but still found that the three-year waiting period was too grave an interference with M.A.’s right to family life. The majority also decided not to question the practice of imposing mandatory waiting periods for family reunification applications provided that they are of less than two years. Strategically, this could warn Denmark and other states considering boundary seeking, that taking the ‘process-risk’ is likely to result in a violation-judgment. At the same time, it prevents potentially large numbers of applications from refugees who have been subjected to mandatory waiting periods before being allowed to apply for family reunification.
In terms of rendering rights practical and effective, the situation is more dubious. Denmark will in all likelihood maintain the waiting period, lowering the threshold to two years rather than three. But it will not have to change its deterrence approach to refugee law, nor will it have to revisit its decision not to pursue integration as a policy goal for refugees with temporary residence permits, nor indeed the wisdom and human rights implications of short-term asylum or the push to return refugees to Syria already in 2021. The case also hasn’t raised a debate about the policy of accepting ‘process-risk’ in relation to human rights in Denmark. To this observer, M.A. v Denmark therefore looks like the closest thing a Grand Chamber violation judgment can be to a slap on the wrist.