I am very happy to introduce a guest post by my SIM colleague dr Alexandra Timmer. She has written a commentary on the recent judgment in Biao v. Denmark which concerns family reunification and discrimination issues. This is her guest post:
Divided
Opinions in Biao v. Denmark: Of Race,
Rights and Family Reunion
Alexandra Timmer
Last week the Second Section of the European Court of Human Rights delivered a 4:3 judgment in the case of Biao v. Denmark. This case confronted the Court with difficult questions. The first – indirect – question is: what is race? And the second is: what is indirect discrimination? It turns out that the Court could not agree on either of these issues. Biao concerned a refusal to grant the Ghanaian wife of a Danish national family reunion in Denmark. The family was not allowed to reunite in Denmark, because they did not meet the criteria of what is known as the “attachment requirement”. Amongst other things, Mr and Ms Biao complained in Strasbourg that the rules regarding family reunification discriminated against them because it had a disproportionate effect on people who have become Danish nationals later in life. By the slimmest of majorities, the Court found no violation of the prohibition on discrimination in conjunction with the right to family life (Articles 14 and 8). Unanimously, the Court also found no violation of Article 8 standing alone.
This post will
focus on the Court’s reasoning regarding the claim of discrimination. The
majority opinion hardly contains real discrimination analysis, whereas the
dissenting opinion of Judges Sajó, Vučinič and Kūris provides a more thorough
reasoning on that point. Both opinions provide rich material for discussion.
Facts
The applicants are a husband and wife. Mr Biao
is a naturalized Danish citizen, originally from Togo. Ms Biao is a Ghanaian
citizen. They live in Sweden with their 9-years old son. Their
son has Danish nationality due to his father’s nationality.
Mr. Biao came to
Denmark in 1993, after having spent 15 years in Ghana. Having lived in Denmark
for 9 years, he was granted Danish nationality in 2002. In 2003, a week after
their marriage, Ms Biao applied for a Danish residence permit, which was refused
by the Aliens Authority. The authorities found in particular that the
applicants did not comply
with the requirement that a couple applying for family reunion must not have
stronger ties with
another country, Ghana in the applicants’ case, than with Denmark (known as the
“attachment requirement”).
The attachment requirement is the
general rule for allowing a Danish citizen and his or her foreign spouse to be
reunited in Denmark. The exception to this requirement is the “28-year rule”,
under which reunification is allowed if the Danish spouse has been a Danish
citizen for at least twenty-eight years. The 28-year old rule also applies to
people who are not
Danish nationals, but who were born and raised in Denmark, or came to Denmark
as small children and were raised there, and who have stayed lawfully in the
country for 28 years.
Mr and Ms Biao appealed the refusal of family
reunification. They submitted, amongst other things, that the 28-year rule
exception resulted in a difference in treatment between two groups of Danish
nationals, namely those born Danish nationals and those who acquired Danish
nationality later in life. Mr Biao acquired Danish citizenship when he was 31. According to the
28-years rule, he will gain the right to family reunification only when he is
59. The Danish Supreme Court was deeply divided over this issue. So was the
Strasbourg Court, as I will now proceed to discuss.
Judgment
First of all, the
Court notes that the case falls within the ambit of Article 8, which triggers
the applicability of Article 14.
What is the ground for the difference in
treatment?
The first question
that the Court then faces, is what the differential treatment ground in this
case is (see para. 79 and further). Article 14 lists a number of prohibited
discrimination grounds, amongst which are race, birth, national or social
origin and “other status”. The wording of the relevant section of Danish law is
neutral: the attachment requirement applies to all Danish nationals. The Court
first investigates whether this is a case of indirect discrimination, as the applicants had argued:
“the Court can agree with the minority of the
Supreme Court that the 28-year rule had the consequence of
creating an indirect difference in treatment between Danish nationals of Danish
ethnic origin and Danish nationals of other ethnic origin, because de facto the
vast majority of persons born Danish citizens would usually be of Danish ethnic
origin, whereas persons who acquired Danish citizenship at a later point in
their life would generally be of foreign ethnic origin” (para. 90)
Nevertheless, in the
same paragraph the Court dismisses the complaint of indirect discrimination for
reasons that are unclear to me, mainly by referring to the old case of Abdulaziz, Cabalesand Balkandali v. the United Kingdom (1985). Without saying so explicitly,
the majority comes to the conclusion that this is a case of direct difference in treatment; the
discrimination ground being “other status”, namely length of citizenship.
Objective and reasonable justification?
Although the majority
does not make this explicit, the consequence of the finding that the difference
in treatment at issue concerned “other status”, rather than race, national or
ethnic origin, is that the Court does not have to apply the very weighty
reasons test (see, mutatis mutandis, Gaygusuz v. Austria). The Court’s scrutiny of the
proportionality of the application of the 28-year rule to the applicants’ case
is therefore not strict.
On the side of the
Government, the Court emphasizes that the Danish Supreme Court had thoroughly
analyzed the case (para. 93). Furthermore, the Court holds that the European Convention on Nationality is not of relevance to the present
case (see para. 95).
Article 5(2) of that Convention enshrines the principle of non-discrimination between
nationals, whether they are nationals by birth or have acquired its nationality
subsequently. Moreover, the majority refers to the case of Abdulaziz, Cabales and Balkandali, in which the Court held that “there are in general persuasive social
reasons for giving special treatment to those who have strong ties with a
country, whether stemming from birth within it or from being a national or a
long‑term resident” (see para. 94).
On the side of the
applicant, the Court does criticize the 28-year old rule:
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. (para. 99)
And:
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 (par. 101)
Despite these
problems with the 28-year old rule, the majority finds that “where national
legislation is in issue, it is not the Court’s task to review the relevant
legislation in the abstract. Instead, it must confine itself, as
far as possible, to examining the issues raised by the case before it” (paragraph 103). What is puzzling
here is that the majority cites Taxquet v. Belgium as support, a case concerning
the right to a fair trial; not a discrimination case. It is not uncommon in
discrimination cases that the Court criticizes national legislation (take for
example KonstantinMarkin v. Russia, where the Court
took issue with the Russian law that made parental leave available for
servicewomen but not for servicemen). Indeed, that is inherent in the
discrimination analysis when the discriminatory treatment flows from formal
legal rules. The Taxquet line of
reasoning enables the majority to make a purely individual proportionality
assessment, focusing only on Mr and Ms Biao. The majority concludes that at the relevant time their aggregate ties to Denmark were clearly not stronger than their ties to
another country.
Dissenting opinion
The three dissenting
judges argue that Article 14 juncto Article 8 is violated. They have written a very thoroughly reasoned separate
opinion, which actually merits its own blog post. I will just highlight two
striking aspects of their reasoning.
First of all, they
disagree with the majority that the applicants enjoy “other status” for the purposes
of Article 14 (dissent para. 12). The dissenters attempt to give some guidance
on the tricky question of “what is race”. In their view, this is not a case of
racial discrimination but of discrimination on the ground of national origin. “National origin is an “ethnic
criterion” in the non-racist sense”, they claim (dissent para. 13 and 15).
Secondly, the
dissenters insist – rightly in my view – that the Court’s discrimination
analysis ought to consist of two levels: the individual level and the general
context. When it comes to general context, it is interesting that the
dissenters insist on the importance of looking at the role of stereotypes in discrimination cases:
the paramount concern of a human
rights court should be whether such criteria have the disparate adverse impact
of a stereotype on a minority group, no less important than the actual
individual impact, which in every case is absolutely necessary for victim
status to obtain. The difference in the treatment of a group raises fundamental
human rights concerns, especially if it reflects or reinforces existing
patterns of social stereotyping related to one or other “natural feature”. It
is impossible to think of Article 14 of the Convention as permitting
second-class citizenship, especially within the ambit of Convention rights
(such as those consolidated in Article 8). For this reason, the Court’s
indirect discrimination doctrine is concerned with the group effects of a
general measure and not only with individual impacts: discrimination may occur
where “a general policy or measure ... has disproportionately prejudicial
effects on a particular group” (see D. H. and Others, § 175) (dissent, para. 8).
The dissenters claim
that: “the impugned differentiation
reflects and reinforces, albeit indirectly, a negative stereotype.”
(dissent para. 16). Referring to the 2012 Grand Chamber judgment in Konstantin Markin v. Russia, the
dissenters remind everyone that “the Court previously held that general
assumptions or prevailing social attitudes in a particular country provided
insufficient justification for a difference in treatment on the ground of sex”.
They “find that similar concerns should apply to immigrant minorities.”(dissent
par. 16). I agree. The stereotype at issue here is that immigrants who marry
persons from their country of origin are not well integrated. Throughout the
judgment reference is made to the mirror opposite of the poorly integrated
immigrant, namely the Danish expatriate who “speak[s] Danish at home, take[s]
holidays in Denmark, read[s] Danish newspapers regularly” (see e.g. par. 24).
This is the person whom the family reunification rules seek to protect.
Concluding thoughts
There is a lot to say
about this judgment, and I cannot say it all here. Several issues will require further
discussion, for example:
-
The casual and highly questionable
way the majority of the Court dismisses the European Convention on Nationality as not being
of relevance to the present case (see par. 95). This
is a Council of Europe Convention, which Denmark has ratified!
-
The
applicants have a son who is a Danish citizen, but who cannot live in Denmark
with both his parents. Where is the perspective of the child’s best interest in
the majority opinion? The dissenters rightly flag this absence in paragraph 5
of their separate opinion.
Paragraphs 79-91,
where the majority discusses what the applicable discrimination ground is in
this case are very confusing. The reasons for dismissing the indirect
discrimination claim appear insufficient. In the first place we are told that “the only intention behind the introduction
of the 28-year rule was to provide for a positive treatment” of certain
groups of citizens who are thought to have such strong ties with Denmark that
it is unproblematic to grant them the right of family reunion (par 89). But –
as the dissenters rightly point this out, referring to D.H. and Others - the intent of the legislature is irrelevant when
it comes to assessing the merit of indirect discrimination claims!
Secondly, the
majority refers to Abdulaziz, Cabales and Balkandali apparently in order to establish
what is racial discrimination and what is not. But that is exactly (one of the)
point(s) wherein Abdulaziz, Cabales and
Balkandali is outdated: the first time the Court actually held a State accountable for racial
discrimination was only in the Chamber judgment of Nachova
in 2004. Abdulaziz, Cabales and Balkandali provides no guidance any more on
what should count as race discrimination. Remember that in that case “the
legislative history showed that the intention was to ‘lower the number of
coloured immigrants’” (Abdulaziz par.
84), and still the Court had maintained that this was no case of race
discrimination!
Ultimately, Biao raises more questions than it
answers regarding indirect racial discrimination and related forms of
discrimination, namely on the grounds of ethnic and national origin. The
dissenters make a more thorough attempt at providing guidance on this difficult
topic than the majority. The majority judgment attaches excessive weight to Abdulaziz, Cabales and Balkandali. It is time for a more authoritative judgment
of the Court!
