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GRAND CHAMBER CASE of BIAO V. DENMARK (Application

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GRAND CHAMBER CASE of BIAO V. DENMARK (Application GRAND CHAMBER CASE OF BIAO v. DENMARK (Application no. 38590/10) JUDGMENT STRASBOURG 24 May 2016 This judgment is final but it may be subject to editorial revision. BIAO v. DENMARK JUDGMENT 1 In the case of Biao v. Denmark, The European Court of Human Rights, sitting as a Grand Chamber composed of: Işıl Karakaş, President, Dean Spielmann, Josep Casadevall, Mark Villiger, Boštjan M. Zupančič, Ján Šikuta, George Nicolaou, Ledi Bianku, Ganna Yudkivska, Vincent A. De Gaetano, Paulo Pinto de Albuquerque, André Potocki, Helena Jäderblom, Paul Mahoney, Ksenija Turković, Iulia Antoanella Motoc, Jon Fridrik Kjølbro, judges, and Lawrence Early, Jurisconsult, Having deliberated in private on 1 April 2015 and 22 February 2016, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 38590/10) against the Kingdom of Denmark lodged with the Court on 12 July 2010 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Ousmane Biao (the first applicant), a Danish national, and his wife Ms Asia Adamo Biao (the second applicant), a Ghanaian national. 2. The applicants were represented by Mr Steen Petersen, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mr Jonas Bering Liisberg, of the Ministry of Foreign Affairs, and their Co-agent, Ms Nina Holst-Christensen, of the Ministry of Justice. 3. The applicants alleged that the refusal by the Danish authorities to grant them family reunion in Denmark was in breach of Article 8, taken alone and in conjunction with Article 14 of the Convention. 2 BIAO v. DENMARK JUDGMENT 4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). On 25 March 2014, a Chamber composed of Guido Raimondi, President, Peer Lorenzen, András Sajó, Nebojša Vučinić, Paul Lemmens, Egidijus Kūris, Robert Spano, judges, and Stanley Naismith, Section Registrar, delivered its judgment. It declared the application admissible and held, unanimously, that there had been no violation of Article 8 of the Convention, and by four votes to three, that there had been no violation of Article 14 read in conjunction with Article 8. A concurring opinion by G. Raimondi and R. Spano and a dissenting opinion by A. Sajó, N. Vučinić, and E. Kūris were annexed to the judgment. 5. On 23 June 2014 the applicants requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention, and the panel of the Grand Chamber accepted the request on 8 September 2014. 6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. At the final deliberations, Helena Jäderblom and Iulia Antoanella Motoc, substitute judges, replaced Elisabeth Steiner and Päivi Hirvelä, who were unable to take part in the further consideration of the case (Rule 24 § 3). 7. The applicants and the Government each filed further written observations (Rule 59 § 1) on the merits. 8. In addition, third-party comments were received from Advice on Individual Rights in Europe (“the AIRE Centre”), which had been granted leave by the President of the Grand Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). 9. A hearing took place in public in the Human Rights Building, Strasbourg, on 1 April 2015 (Rule 59 § 3). There appeared before the Court: (a) for the Government Mr JONAS BERING LIISBERG, Ministry of Foreign Affairs, Agent, Ms NINA HOLST-CHRISTENSEN, Ministry of Justice, Co-agent Mr KIM LUNDING, Ministry of Justice, Mr ANDERS HERPING NIELSEN, Ministry of Justice, Mr MARTIN BANG, Ministry of Foreign Affairs, Ms MARIA AVIAJA SANDER HOLM, Ministry of Justice, Advisers; (b) for the applicants Mr STEEN PETERSEN, lawyer, Counsel, Mr NIELS-ERIK HANSEN, Mr HENRIK KARL NIELSEN, Advisers. The Court heard addresses by Mr Bering Liisberg and Mr Petersen as well as their replies to questions from judges. BIAO v. DENMARK JUDGMENT 3 THE FACTS I. THE CIRCUMSTANCES OF THE CASE 10. The applicants were born, respectively, in 1971 in Togo and in 1979 in Ghana. They live in Malmö, Sweden. 11. The first applicant lived in Togo until the age of 6 and again briefly from the age of 21 to 22. From the age of 6 to 21 he lived in Ghana with his uncle. He attended school there for ten years and speaks the local language. On 18 July 1993, when he was 22 years old, he entered Denmark and requested asylum, which was refused by a final decision of 8 March 1995. 12. In the meantime, on 7 November 1994, he had married a Danish national. Having regard to his marriage, on 1 March 1996, by virtue of the former section 9, subsection 1(ii), of the Aliens Act (Udlændingeloven) he was granted a residence permit, which became permanent on 23 September 1997. 13. On 25 September 1998 the first applicant and his Danish wife got divorced. 14. On 22 April 2002 the first applicant acquired Danish citizenship. At the relevant time he met the requirements set out in the relevant circular relating to the length of his period of residence (at least nine years), age, general conduct, arrears owed to public funds and language proficiency. 15. On 22 February 2003 the first applicant married the second applicant in Ghana. He had met her during one of four visits to Ghana made in the five years prior to their marriage. 16. On 28 February 2003, at the Danish Embassy in Accra, Ghana, the second applicant requested a residence permit for Denmark with reference to her marriage to the first applicant. At that time she was 24 years old. She stated that she had never visited Denmark. Her parents lived in Ghana. On the application form, the first applicant submitted that he had not received any education in Denmark, but had participated in various language courses and short-term courses concerning service, customer care, industrial cleaning, hygiene and working methods. He had been working in a slaughterhouse since 15 February 1999. He had no close family in Denmark. He spoke and wrote Danish. The spouses had come to know each other in Ghana and they communicated between themselves in the Hausa and Twi languages. 17. At the relevant time, under section 9, subsection 7, of the Aliens Act family reunion could be granted only if both spouses were over 24 years old and their aggregate ties to Denmark were stronger than the spouses’ attachment to any other country (the so-called attachment requirement). 18. On 1 July 2003 the Aliens Authority (Udlændingestyrelsen) refused the residence permit request because it found that it could not be established 4 BIAO v. DENMARK JUDGMENT that the spouses’ aggregate ties to Denmark were stronger than their aggregate ties to Ghana. 19. In July or August 2003 the second applicant entered Denmark on a tourist visa. 20. On 28 August 2003 she appealed against the Aliens Authority’s decision of 1 July 2003, to the then Ministry for Refugees, Immigration and Integration (Ministeriet for Flygtninge, Indvandrere og Integration). The appeal did not have suspensive effect. 21. On 15 November 2003 the applicants moved to Malmö, Sweden, which since 1 July 2000 has been connected to Copenhagen in Denmark by a 16 km bridge (Øresundsforbindelsen). 22. By Act no. 1204 of 27 December 2003, section 9, subsection 7, of the Aliens Act was amended so that the attachment requirement was lifted for persons who had held Danish citizenship for at least 28 years (the so-called 28-year rule – 28-års reglen). Persons born or having arrived in Denmark as small children could also be exempted from the attachment requirement, provided they had resided lawfully there for 28 years. 23. On 6 May 2004 the applicants had a son. He was born in Sweden but is a Danish national by virtue of his father’s nationality. 24. On 27 August 2004 the Ministry for Refugees, Immigration and Integration upheld the decision by the Aliens Authority of 1 July 2003 to refuse to grant the second applicant a residence permit. It pointed out that in practice, the residing person was required to have stayed in Denmark for approximately twelve years, provided that an effort had been made to integrate. In the case before it, it found that the applicants’ aggregate ties to Denmark were not stronger than their ties to Ghana and that the family could settle in Ghana, as that would only require that the first applicant obtain employment there. In its assessment, it noted that the first applicant had entered Denmark in July 1993 and had been a Danish national since 22 April 2002. He had ties with Ghana, where he had been raised and had attended school. He had visited the country four times in the past six years. The second applicant had always lived in Ghana and had family there. 25. On 18 July 2006, before the High Court of Eastern Denmark (Østre Landsret), the applicants instituted proceedings against the Ministry for Refugees, Immigration and Integration and relied on Article 8 of the Convention, alone and in conjunction with Article 14 of the Convention, together with Article 5 (2) of the European Convention on Nationality. They submitted, among other things, that it amounted to indirect discrimination against them when applying for family reunion, that persons who were born Danish citizens were exempt from the attachment requirement altogether, whereas persons who had acquired Danish citizenship at a later point in life had to comply with the 28-year rule before being exempted from the attachment requirement.
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