Thursday 3 April 2014

Guest Post on Biao v Denmark

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.
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.
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)

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!