ECtHR, GC, Biao v. Denmark, judgment of 24 May 2016 – overturning earlier Chamber judgment
C. The Court’s assessment
1. General principles
88. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide. It is necessary but it is also sufficient for the facts of the case to fall within the ambit of one or more of the Convention Articles (see, for example, Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, §§ 39-40, ECHR 2005‑X; E.B. v. France [GC], no. 43546/02, §§ 47-48, 22 January 2008; and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 72, ECHR 2013).
89. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14. Moreover, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see for example, Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010; Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008; D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-IV; and Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 56, Series A no. 23). Article 14 lists specific grounds which constitute “status” including, inter alia, race, national or social origin and birth. However, the list is illustrative and not exhaustive, as is shown by the words “any ground such as” (in French “notamment”) (see Engel and Others v. the Netherlands, 8 June 1976, § 72, Series A no. 22, and Carson and Others, cited above, § 70) and the inclusion in the list of the phrase “any other status”. The words “other status” have generally been given a wide meaning (see Carson and Others, cited above, § 70) and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Clift v. the United Kingdom, no. 7205/07, §§ 56-58, 13 July 2010).
90. A difference in treatment is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The notion of discrimination within the meaning of Article 14 also includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (see Abdulaziz, Cabales and Balkandali, cited above, § 82).
91. A general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory even where it is not specifically aimed at that group and there is no discriminatory intent. This is only the case, however, if such policy or measure has no “objective and reasonable” justification (see, among other authorities, S.A.S. v. France [GC], no. 43835/11, § 161, ECHR 2014 (extracts), and D.H. and Others, cited above, §§ 175 and 184-185).
92. As to the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has demonstrated a difference in treatment, it is for the Government to show that it was justified (see D.H. and Others, cited above, § 177).
93. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see, for example, Hämäläinen v. Finland [GC], no. 37359/09, § 108, ECHR 2014; X and Others v. Austria [GC], no. 19010/07, § 98, ECHR 2013; and Vallianatos and Others, cited above, § 76). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, but the final decision as to the observance of the Convention’s requirements rests with the Court. A wide margin is usually allowed to the State when it comes to general measures of economic or social strategy (see Burden, cited above, § 60; Carson and Others, cited above, § 61; Şerife Yiğit v. Turkey [GC], no. 3976/05, § 70, 2 November 2010; and Stummer v. Austria [GC], no. 37452/02, § 89, ECHR 2011). However, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of nationality as compatible with the Convention (see Gaygusuz v. Austria, 16 September 1996, § 42, Reports of Judgments and Decisions 1996‑IV; Koua Poirrez v. France, no. 40892/98, § 46, ECHR 2003-X; Andrejeva v. Latvia [GC], no. 55707/00, § 87, ECHR 2009; and Ponomaryovi v. Bulgaria, no. 5335/05, § 52, ECHR 2011).
94. No difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society. Discrimination on account of, inter alia, a person’s ethnic origin is a form of racial discrimination (see, D.H. and Others, cited above, §176; Timishev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005‑XII; and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §145, ECHR 2005‑VII).
2. Application of those principles to the present case
(a) Applicability of Article 14 of the Convention taken in conjunction with Article 8
95. It is undisputed by the parties that the facts of the case, namely the refusal to grant family reunification and the non-application of the 28‑year rule to the applicants in the present case fall within the ambit of Article 8. The Court agrees. Consequently, and recalling the principles set out in paragraph 88 above, Article 14 taken in conjunction with Article 8 applies to the facts of the case (see, for example, Hode and Abdi v. the United Kingdom (no. 22341/09, § 43, 6 November 2012)).
(b) Compliance with Article 14 taken in conjunction with Article 8
(i) Do the facts of the case disclose discrimination?
96. It is not in dispute that the applicants were in a relevantly similar situation to that of other couples in which a Danish national and a foreign national seek family reunification in Denmark. Moreover, the Government acknowledged, as did the domestic courts, that the 28-year rule did treat Danish nationals differently, depending on how long they had been Danish nationals. If the person had been a Danish national for 28 years, the exception to the “attachment requirement” applied. If the person had not been a Danish national for 28 years, the exception did not apply. The crux of the case is therefore whether, as maintained by the applicants, the 28‑year rule also created a difference in treatment between Danish-born nationals and those who acquired Danish nationality later in life, amounting to indirect discrimination on the basis of race or ethnic origin.
97. It will be recalled that on 1 July 2003 the Aliens Authority refused the second applicant’s request for a residence permit as the applicants did not fulfil the attachment requirement. Their appeal was dismissed on 27 August 2004 by the Ministry for Refugees, Immigration and Integration on the same grounds. The applicants did not benefit from the newly introduced exception to the attachment requirement, namely the 28-year rule which had come into effect on 1 January 2004, as the first applicant had not been a Danish national for 28 years.
98. The Court observes that the 28-year rule was introduced by Act no. 1204 of 27 December 2003, with effect from 1 January 2004, to relax the application of the attachment requirement for residents who had been Danish nationals for 28 years or more. Thereafter, section 9, subsection 7 of the Aliens Act was worded as follows (see paragraph 35 above):
“Unless otherwise appropriate for exceptional reasons, a residence permit under subsection 1(i)(a), when the resident person has not been a Danish national for 28 years, and under subsection 1(i)(b) to (d), can only be issued if the spouses’ or the cohabitants’ aggregate ties with Denmark are stronger than the spouses’ or the cohabitants’ aggregate ties with another country. Resident Danish nationals who were adopted from abroad before their sixth birthday and who acquired Danish nationality not later than on their adoption are considered to have been Danish nationals from birth.”
The wording of the provision thus distinguished only between residents who had been Danish nationals for at least 28 years and those who had not been Danish nationals for 28 years.
99. According to the preparatory work (see paragraph 36 above) it would appear that the aim of the proposed provision was to ensure that Danish expatriates having strong and lasting ties with Denmark in the form of at least 28 years of Danish nationality would be able to obtain spousal reunion in Denmark. The proposed provision targeted a group of persons who did not, under the previous section 9, subsection 7, of the Aliens Act, have the same opportunities as Danish and foreign nationals living in Denmark for obtaining spousal reunion. The proposed adjustment of the attachment requirement was to give “Danish expatriates a real possibility of returning to Denmark with a foreign spouse or cohabitant, and likewise young Danes could go abroad and stay there for a period with the certainty of not being barred from returning to Denmark with a foreign spouse or cohabitant as a consequence of the attachment requirement”.
100. Moreover, again according to the preparatory work (see paragraph 37 above), the exemption for “exceptional reasons” in the relevant provision allowed for situations covered by Denmark’s treaty obligations. It was specifically stated that 28 years of legal residence since early childhood would fall within the “exceptional reasons”, as provided in section 9, subsection 7, for the benefit of non-Danish nationals. Accordingly, persons who were not Danish nationals, but who were born and raised in Denmark, or came to Denmark as small children and were raised in Denmark, were also exempted from the attachment requirement, as long as they had resided lawfully in Denmark for 28 years.
101. For the reasons that follow, the Court is not ready to accept the Government’s claim that the difference in treatment was linked solely to the length of nationality with the result that the applicants were treated differently when compared to a couple seeking family reunification in which one of the spouses had been a Danish national for more than 28 years, Mr Biao having been a Danish national for a shorter period.
102. The applicants alleged that the 28-year rule created in practice a difference in treatment between Danish-born nationals and those who acquired Danish nationality later in life. In addition, since the majority of Danish-born nationals would be ethnically Danish, while persons acquiring Danish nationality later in life would overwhelmingly be of different ethnic origins, that is other than Danish, the differential treatment also amounted to indirect discrimination on the basis of race or ethnic origin. The applicants referred, among other things, to the view expressed by the minority of the Supreme Court (see paragraph 30 above), which had found that the 28‑year rule amounted to an indirect difference in treatment between Danish nationals of Danish ethnic origin and Danish nationals of other ethnic origin regarding the right to spousal reunion.
103. The Court has accepted in previous cases that a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group (see, for example, Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001). Such a situation may amount to “indirect discrimination”, which does not necessarily require a discriminatory intent (see, D.H. and Others, cited above, § 184).
104. It is therefore pertinent in the present case to examine whether the manner in which the 28-year rule was applied in practice had a disproportionately prejudicial effect on persons who, like the first applicant, acquired Danish nationality later in life and who were of an ethnic origin other than Danish (see also D.H. and Others, cited above, § 185).
105. To this end the Court finds it necessary to view the relevant provision of the Aliens Act from a historical perspective. It notes that the attachment requirement was introduced into Danish legislation on 3 June 2000 as one of the conditions for granting family reunion with persons residing in Denmark who were not Danish nationals.
106. As of 1 July 2002 the attachment requirement was extended to apply also to Danish nationals, one of the reasons being, according to the preparatory work (see paragraph 33 above), as follows:
“… Experience has shown that integration is particularly difficult in families where generation upon generation fetch their spouses to Denmark from their own or their parents’ country of origin. With resident aliens and Danish nationals of foreign extraction it is a widespread marriage pattern to marry a person from their country of origin, among other reasons owing to parental pressure. This pattern contributes to the retention of these persons in a situation where they, more than others, experience problems of isolation and maladjustment in relation to Danish society. The pattern thus contributes to hampering the integration of aliens newly arrived in Denmark. The government find that the attachment requirement, as it is worded today, does not take sufficient account of the existence of this marriage pattern among both resident foreigners and resident Danish nationals of foreign extraction. There are thus also Danish nationals who are not well integrated into Danish society and where the integration of a spouse newly arrived in Denmark may therefore entail major problems.”
107. However, as stated above (see paragraph 35 above), it soon transpired that the decision to extend the attachment requirement to Danish nationals had consequences for Danish expatriates, who had difficulties returning to Denmark with their foreign spouses.
108. In the proceedings before the Grand Chamber, the Court invited the Danish Government to indicate how many persons had benefited from the 28‑year rule pursuant to section 9, subsection 7, of the Aliens Act and how many of those were Danish nationals of Danish ethnic origin (see paragraph 84 above).
109. As already indicated, the Government replied that regrettably they had been unable to produce the specific information requested by the Court (see paragraph 44 above). However, they did provide a memorandum of 1 December 2005 on the application of the attachment requirement to spousal reunification under section 9, subsection 7, of the Aliens Act and general statistics on family reunion in Denmark.
110. It is thus not possible for the Court to establish exactly how many persons have benefited from the 28‑year rule pursuant to section 9, subsection 7, of the Aliens Act and how many of those were Danish nationals of Danish ethnic origin and how many were Danish nationals of other origin.
111. Nevertheless, the Court finds that it can in the present case, and without being exhaustive as to the categories of persons covered, conclude as follows:
a) As intended, all Danish-born expatriates, who would otherwise have had difficulties in fulfilling the attachment requirement when returning to Denmark with their foreign spouses, would benefit from the 28-year rule from the age of 28.
b) All other Danish-born nationals resident in Denmark would benefit from the 28-year rule from the age of 28.
c) Moreover, it follows from the preparatory work (see paragraph 37 above) that aliens, who were not Danish nationals, who were born and raised in Denmark or who came to Denmark as small children, and who had lawfully resided in Denmark for 28 years, would also benefit from the 28‑year exemption rule, when they reached the age of 28 or shortly thereafter.
d) Most, if not all persons, who like Mr Biao, had acquired Danish nationality later in life, would not benefit from the 28-year rule, since the exception would apply only after 28 years had passed from the date when such person became a Danish national. The Government have explained that this does not mean, as claimed by the applicants, that persons in this category would de facto have to wait 28 years before being granted family reunion, since, for example, couples in the applicants’ situation, being raised in the same country and one of them acquiring Danish nationality later in life, would generally fulfil the attachment requirement after three years of acquiring Danish nationality or after 12 years of lawful residence (see paragraph 78 above). The Court observes that the preparatory notes to the 28-year rule did not mention that the 28-year rule would not have any disproportionately prejudicial effect on persons who acquired Danish nationality later in life since such persons would in any event fulfil the attachment criteria much sooner, and, as stated above, there are no statistics in this regard. Furthermore, the attachment requirement would not automatically be considered fulfilled after three years of nationality or after 12 years of lawful residence. Moreover, it is noteworthy that if a person acquires Danish nationality (category d) for example at the age of 28 (and thus after 9 years of required lawful residence in Denmark, see paragraphs 14 and 30), in general, he or she will still have to wait three years before the attachment requirement may be considered fulfilled. However, a 28-year old Danish-born national, resident in Denmark (category b) would be exonerated from the attachment requirement immediately at the age of 28, and a 28‑year old Danish-born expatriate (category a) would also be exonerated from the attachment requirement immediately at the age of 28, even if the expatriate had resided in Denmark only for a short period of time. Accordingly, although persons who acquire Danish nationality later in life may not have to wait 28 years to be allowed family reunification, but rather three years or more, this does not, in the Court’s view, remove the fact that the application of the 28-year rule had a prejudicial effect on Danish nationals in the applicant’s situation.
112. The Court also considers that it can reasonably be assumed that at least the vast majority of category a) Danish expatriates and category b) Danish nationals born and resident in Denmark, who could benefit from the 28-year rule, would usually be of Danish ethnic origin whereas category d) persons acquiring Danish citizenship at a later point in their life, like Mr Biao, who would not benefit from the 28-year rule, would generally be of foreign ethnic origin.
113. It is not to be overlooked that aliens in category c), and thus persons of foreign ethnic origin, could also benefit from the 28-year rule, but that does not alter the fact that the 28-year rule had the indirect effect of favouring Danish nationals of Danish ethnic origin, and placing at a disadvantage, or having a disproportionately prejudicial effect on persons who, like the first applicant, acquired Danish nationality later in life and who were of an ethnic origin other than Danish (see paragraph 103 above).
114. The burden of proof must shift to the Government to show that the difference in the impact of the legislation pursued a legitimate aim and was the result of objective factors unrelated to ethnic origin (see paragraphs 115 to 137 below). Having regard to the fact that no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society and a difference in treatment based exclusively on the ground of nationality is allowed only on the basis of compelling or very weighty reasons (see paragraphs 93 and 94 above), it falls to the Government to put forward compelling or very weighty reasons unrelated to ethnic origin if such indirect discrimination is to be compatible with Article 14 taken in conjunction with Article 8 of the Convention.
(ii) The legitimacy of the aim pursued
115. The Government submitted that the aim of the 28-year rule was to make an exception to the attachment requirement for those who had strong and lasting ties with Denmark when seen from a general perspective. The rationale was that it would be unproblematic to grant such persons family reunion with a foreign spouse because the latter would normally be successfully integrated into Danish society. In particular the aim was to ensure that Danish expatriates would be able to obtain family reunion in Denmark since this group had been unintentionally and unfairly disadvantaged by the tightening of the attachment requirement introduced in 2002. Finally, and more generally, the 28-year rule exception to the attachment requirement pursued the legitimate aim of immigration control and improving integration (see paragraph 79 above).
116. The applicants alleged that the disputed legislation had been introduced intentionally to target Danish citizens of non-Danish ethnic or national origin and thus did not pursue a legitimate aim. In this respect they referred to the finding by the minority of the Supreme Court (see paragraph 30 above).
117. The Court reiterates that where immigration is concerned, Article 8, taken alone, cannot be considered to impose on a State a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunification on its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest (see, among others, Jeunesse v. the Netherlands, cited above, § 107). Moreover, the Court has, on many occasions, accepted that immigration control, which serves the general interests of the economic well-being of the country, pursued a legitimate aim within the meaning of Article 8 of the Convention (see, for example, Zakayev and Safanova v. Russia, no. 11870/03, § 40, 11 February 2010; Osman v. Denmark, 38058/09, § 58, 14 June 2011; J.M. v. Sweden (dec.), no. 47509/13, § 40, 8 April 2014; and F.N. v. the United Kingdom (dec.), no. 3202/09, § 37, 17 September 2013).
118. That being said, the present case concerns compliance with Article 14 of the Convention read in conjunction with Article 8, with the result that immigration control measures, which may be found to be compatible with Article 8 § 2, including with the legitimate aim requirement, may nevertheless amount to unjustified discrimination in breach of Article 14 read in conjunction with Article 8. It appears that case‑law on these matters is rather sparse. In Hode and Abdi, (cited above, § 53) the Court accepted that offering incentives to certain groups of immigrants may amount to a legitimate aim for the purposes of Article 14 of the Convention. Furthermore, in Abdulaziz, Cabales and Balkandali (cited above, § 87), the Court found legitimate the aim cited by the Government for the differential treatment on the ground of birth, namely “to avoid the hardship which women having close ties to the United Kingdom would encounter if, on marriage, they were obliged to move abroad in order to remain with their husbands” or, in other words, to distinguish a group of nationals who, seen from a general perspective, had lasting and strong ties with the country.
119. The majority of the Supreme Court found that the 28-year rule had the same aim as the requirement of birth in the United Kingdom, which was accepted in Abdulaziz, Cabales and Balkandali (cited above), namely to distinguish a group of nationals who, seen from a general perspective, had lasting and strong ties with the country (see paragraph 29 above).
120. The minority of the Supreme Court, without specifically adverting to the legitimacy of the aim pursued, expressed a clear view that the indirect difference in treatment between Danish nationals of Danish ethnic extraction and Danish nationals of other ethnic extraction resulting from the application of the 28-year rule was an intended consequence (see paragraph 30 above).
121. The Court considers that it is not required to take a separate stand on the questions whether the indirect discrimination, which it has found in this case, was an intended consequence as alleged by the applicants, or whether the aim put forward by the Government for the introduction of the 28‑year rule was legitimate for the purposes of the Convention. The Court finds it appropriate in the circumstances of the present case to limit its inquiry to the existence (or not) of compelling or very weighty reasons unrelated to ethnic origin for the difference in treatment, a matter which will be examined below.
(iii) The justification of the aims pursued
122. The Court observes that one of the aims of introducing the 28‑year rule (see paragraphs 29, 35 and 74 above), was that the previous amendment of the Aliens Act in July 2002, extending the attachment requirement to apply also to Danish nationals, had been found to have unintended consequences for persons such as Danish nationals who had opted to live abroad for a lengthy period and who had started a family while away from Denmark and subsequently had difficulties fulfilling the attachment requirement upon return. It was found that there would normally be a basis for successful integration of Danish expatriates’ family members into Danish society, since they would often have maintained strong ties with Denmark, which in addition would also have been passed on to their spouse or cohabitant and any children of the union.
123. It will be recalled that the preparatory work in respect of the 28‑year rule underlined that the “fundamental aim of tightening the attachment requirement in 2002”, namely securing better integration of foreigners would not be forfeited by introducing the said exception. The “fundamental aim” of tightening the attachment rule in 2002 was set out in the preparatory work to that amendment (see paragraph 33 above).
124. In the Court’s view the materials concerning the legislative process show that the Government wished, on the one hand, to control immigration and improve integration with regard to “both resident foreigners and resident Danish nationals of foreign extraction”, whose “widespread marriage pattern” was to “marry a person from their country of origin”, and, on the other, to ensure that the attachment requirement did not have unintended consequences for “persons such as Danish nationals who opted to live abroad for a lengthy period and who started a family while away from Denmark” (see paragraphs 33 and 36 above).
125. The Court considers that the justification advanced by the Government for introducing the 28-year rule is, to a large extent, based on rather speculative arguments, in particular as to the time when, in general, it can be said that a Danish national has created such strong ties with Denmark that family reunion with a foreign spouse has a prospect of being successful from an integration point of view. The answer to this question cannot, in the Court’s view, depend solely on the length of nationality, whether for 28 years or less. Therefore, the Court cannot follow the Government’s argument that because the first applicant had been a Danish national for only two years when he was refused family reunion, the consequences of the 28‑year rule could not be considered disproportionate as regards his situation. It points out that this line of reasoning seems to overlook the fact that in order to obtain Danish nationality the first applicant had resided in Denmark for at least nine years, had proved his proficiency in the Danish language and knowledge of Danish society, and met the requirement of self‑support.
More concretely, in August 2004, when Mr Biao was refused family reunion, not only had he been a Danish national for approximately two years, he had lived in Denmark for more than ten years, had been married there to a Danish national for approximately four years, had participated in various courses and worked there for more than six years, and had had a son on 6 May 2004, who was a Danish national by virtue of his father’s nationality. None of these elements was or could be taken into account in the application of the 28-year rule to the applicant, although in the Court’s opinion they were indeed relevant when assessing whether Mr Biao had created such strong ties with Denmark that family reunion with a foreign spouse had any prospect of being successful from an integration point of view.
126. The Court finds that some of the arguments advanced by the Government in the course of the preparatory work relating to the Act which extended from 1 July 2002 the attachment requirement to residents of Danish nationality (see paragraph 33 above), reflect negatively on the lifestyle of Danish nationals of non-Danish ethnic extraction, for example in relation to their “marriage pattern”, which, according to the Government, “contributes to the retention of these persons in a situation where they, more than others, experience problems of isolation and maladjustment in relation to Danish society. The pattern thus contributes to hampering the integration of aliens newly arrived in Denmark”. In this connection, the Court would refer to its conclusion in Konstantin Markin v. Russia [GC] (no. 30078/06, §§ 142‑143, ECHR 2012 (extracts)), that general biased assumptions or prevailing social prejudice in a particular country do not provide sufficient justification for a difference in treatment on the ground of sex. The Court finds that similar reasoning should apply to discrimination against naturalised nationals.
127. Thus, so far, the arguments and material submitted by the Government before the Court have not shown that the difference in treatment resulting from the impugned legislation was based on objective factors unrelated to ethnic origin.
128. In the judicial review of the application of the 28-year rule to the applicants, the majority of the Danish Supreme Court found that the exception was based on an objective criterion and that it could be considered objectively justified to select a group of nationals with such strong ties to Denmark, when assessed from a general perspective, that it would be unproblematic to grant family reunion. The rationale being that it would normally be possible for the foreign spouse or cohabitant of such a person to be successfully integrated into Danish society. Moreover, they found that the consequences of the 28-year rule could not be considered disproportionate for the first applicant (see paragraph 29 above).
129. The majority relied heavily on the Abdulaziz, Cabales and Balkandali judgment (cited above), as they considered that the factual circumstances of the present case in most material aspects were identical to those of Mrs Balkandali’s situation. Both the latter and Mr Biao arrived in the country as adults. Mr Biao’s application for spousal reunion was refused when he had resided in Denmark for eleven years, two of which as a Danish national. Mrs Balkandali’s application was refused after she had resided in the United Kingdom for eight years, two of which as a British national. Further, relying, inter alia, on the statement (ibid, § 88) that “there are in general persuasive social reasons for giving special treatment to those whose link with a country stems from birth within it”, the majority in Supreme Court found, as stated above, that “the criterion of 28 years Danish nationality had the same aim as the requirement of birth in the United Kingdom, which was accepted by the Court in the 1985 judgment as not being contrary to the Convention: to distinguish a group of nationals who, seen from a general perspective, had lasting and strong ties with the country”.
130. The Court would point out, however, that it has found that the 28‑year rule had the indirect discriminatory effect of favouring Danish nationals of Danish ethnic origin, and placing at a disadvantage or having a disproportionately prejudicial effect on persons who acquired Danish nationality later in life and who were of ethnic origins other than Danish (see paragraph 113 above). The Supreme Court on the other hand found that the discrimination at issue was based solely on the length of citizenship a matter falling within the ambit of “other status” within the meaning of Article 14 of the Convention. Accordingly, the proportionality test applied by the Supreme Court was different from the test to be applied by this Court, which requires compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discriminatory effect of the 28-year rule (see paragraph 114).
131. In the field of indirect discrimination between a State’s own nationals based on ethnic origin, it is very difficult to reconcile the grant of special treatment with current international standards and developments. Since the Convention is first and foremost a system for the protection of human rights, regard must also be had to the changing conditions within Contracting States and the Court must respond, for example, to any evolving convergence as to the standards to be achieved (see Dhahbi v. Italy, no. 17120/09, § 47, 8 April 2014; Konstantin Markin, cited above, § 126; and Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013 (extracts)).
132. The Court notes in this connection that the applicants relied on Article 5 § 2 of the European Convention on Nationality. It is noteworthy that it has been ratified by 20 member States of the Council of Europe, including Denmark (see paragraph 47 above). Moreover, in respect of Article 5 § 2 of the European Convention on Nationality, the Explanatory Report (see paragraphs 48 above) states that although not being a mandatory rule to be followed in all cases, the paragraph was a declaration of intent, aimed at eliminating the discriminatory application of rules in matters of nationality between nationals from birth and other nationals, including naturalised persons. This suggests a certain trend towards a European standard which must be seen as a relevant consideration in the present case.
133. Furthermore, within the member States of the Council of Europe there is a degree of variation as regards the conditions for granting family reunion (see paragraph 61 above). However, it would appear from the 29 countries studied that there are no States which, like Denmark, distinguish between different groups of their own nationals when it comes to the determination of the conditions for granting family reunification.
134. In relation to EU law it is relevant to point out that the Court’s conclusions in, inter alia, Ponomaryovi (cited above, § 54) and C. v. Belgium (7 August 1996, § 38, Reports 1996‑III), that “the preferential treatment of nationals of member States of the European Union … may be said to be based on an objective and reasonable justification, because the Union forms a special legal order, which has, moreover, established its own citizenship” concerned preferential treatment on the basis of nationality; not favourable treatment of “nationals by birth” as compared to “nationals by acquisition later in life” or indirect discrimination between the country’s own nationals based on ethnic origin. The Court also notes that in EU law on family reunification no distinction is made between those who acquired citizenship by birth and those who acquired it by registration or naturalisation (see paragraph 87 above).
135. The rules for family reunification under EU law did not apply to the applicants’ case in August 2004 (see paragraph 58 above). However, it is instructive to view the contested Danish legislation in the light of relevant EU law. Given that the first applicant has moved to Sweden, by virtue of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member States, and in the light of the CJEU’s judgment of 25 July 2008 in Metock v. Minister for Justice, Equality and Law Reform (see paragraph 59 above), the applicants and their child now have a prospect of success in applying from Sweden for a residence permit in Denmark.
136. In addition, it is noteworthy that various independent bodies have expressed concern that the 28-year rule entails indirect discrimination. Reference is made, for example, to the reports cited by the European Commission against Racism and Intolerance (ECRI) in which it stated (see paragraph 54, point 49, above) that “ECRI is deeply concerned by the fact that the 28 years’ aggregate ties with Denmark rule amounts to indirect discrimination between those who were born Danish and people who acquired Danish citizenship at a later stage.”; and “the rule that persons who have held Danish citizenship whether it be for over 28 or 26 years, or who were born in Denmark or came to the country as a small child or have resided legally in the country, whether it be for over 28 or 26 years, are exempt from these requirements, also risks disproportionately affecting non‑ethnic Danes.” (see paragraph 55, point 129, above). The Committee on the Elimination of Racial Discrimination (CERD), expressed a similar concern (see paragraph 60, point 15, above).
137. The Council of Europe Commissioner for Human Rights also expressed his concern as regards the operation of the 28-year rule (see paragraph 49 above) and found that it placed naturalised Danish citizens at a considerable disadvantage in comparison to Danish citizens born in Denmark and stated that “the dispensation from the aggregate ties conditions for a naturalised citizen, for whom the condition will, inevitably, be harder to meet by virtue of his or her own foreign origin, at so late an age constitutes, in my view, an excessive restriction to the right to family life and clearly discriminates between Danish citizens on the basis of their origin in the enjoyment of this fundamental right…”.
(iv) The Court’s conclusion
138. In conclusion, having regard to the very narrow margin of appreciation in the present case, the Court finds that the Government have failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discriminatory effect of the 28‑year rule. That rule favours Danish nationals of Danish ethnic origin, and places at a disadvantage, or has a disproportionately prejudicial effect on persons who acquired Danish nationality later in life and who were of ethnic origins other than Danish.
139. It follows that there has been a violation of Article 14 read in conjunction with Article 8 of the Convention in the present case.
On 19 May 2016, in J.N. v UK the Strasbourg Court provided a useful detailed overview of its case law principles concerning lawfulness of migrant detention in view of deportation:
74. Article 5 of the Convention enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Subparagraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds. One of the exceptions, contained in subparagraph (f), permits the State to control the liberty of aliens in the immigration context (see, as recent authorities, Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008, and A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 162‑63, 19 February 2009).
75. It is well established in the Court’s case-law under the sub‑paragraphs of Article 5 § 1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be “lawful”. In other words, it must conform to the substantive and procedural rules of national law (Amuur v. France, 25 June 1996, § 50, Reports 1996‑III, and Abdolkhani and Karimnia v. Turkey, no. 30471/08, § 130, 22 September 2009).
76. In assessing the “lawfulness” of detention, the Court may have to ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied.
77. In laying down that any deprivation of liberty must be effected “in accordance with a procedure prescribed by law”, Article 5 § 1 does not merely refer back to domestic law; like the expressions “in accordance with the law” and “prescribed by law” in the second paragraphs of Articles 8 to 11, it also relates to the “quality of the law”. “Quality of law” in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Nasrulloyev v. Russia, no. 656/06, § 71, 11 October 2007; Khudoyorov v. Russia, no. 6847/02, § 125, ECHR 2005‑… (extracts); Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000-IX; Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III; and Amuur, cited above). Factors relevant to this assessment of the “quality of law” – which are referred to in some cases as “safeguards against arbitrariness” – will include the existence of clear legal provisions for ordering detention, for extending detention, and for setting time-limits for detention (Abdolkhani and Karimnia, cited above, § 135 and Garayev v. Azerbaijan, no. 53688/08, § 99, 10 June 2010); and the existence of an effective remedy by which the applicant can contest the “lawfulness” and “length” of his continuing detention (Louled Massoud v. Malta, no. 24340/08, § 71, 27 July 2010).
78. In addition to the requirement of “lawfulness”, Article 5 § 1 also requires that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, among many other authorities, Saadi v. the United Kingdom, cited above, § 6; and Chahal v. the United Kingdom, 15 November 1996, § 118, Reports of Judgments and Decisions 1996‑V). It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention.
79. While the Court has not formulated a global definition as to what types of conduct on the part of the authorities might constitute “arbitrariness” for the purposes of Article 5 § 1, key principles have been developed on a case-by-case basis. It is moreover clear from the case-law that the notion of arbitrariness in the context of Article 5 varies to a certain extent depending on the type of detention involved.
80. One general principle established in the case-law is that detention will be “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities (see, for example, Bozano v. France, 18 December 1986, Series A no. 111, and Čonka v. Belgium, no. 51564/99, ECHR 2002-I). Furthermore, the condition that there be no arbitrariness further demands that both the order to detain and the execution of the detention genuinely conform with the purpose of the restrictions permitted by the relevant sub‑paragraph of Article 5 § 1 (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33). There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (see Aerts v. Belgium, 30 July 1998, § 46, Reports 1998-V; and Enhorn v. Sweden, no. 56529/00, § 42, ECHR 2005-I).
81. Where a person has been detained under Article 5 § 1(f), the Grand Chamber, interpreting the second limb of this sub-paragraph, held that, as long as a person was being detained “with a view to deportation”, that is, as long as “action [was] being taken with a view to deportation”, Article 5 § 1(f) did not demand that detention be reasonably considered necessary, for example, to prevent the individual from committing an offence or fleeing. It was therefore immaterial whether the underlying decision to expel could be justified under national or Convention law (see Chahal, cited above, § 112; Slivenko v. Latvia [GC], no. 48321/99, § 146, ECHR 2003 X; Sadaykov v. Bulgaria, no. 75157/01, § 21, 22 May 2008; and Raza v. Bulgaria, no. 31465/08, § 72, 11 February 2010).
82. Consequently, the Grand Chamber held in Chahal that the principle of proportionality applied to detention under Article 5 § 1 (f) only to the extent that the detention should not continue for an unreasonable length of time; thus, it held that “any deprivation of liberty under Article 5 § 1(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible” (Chahal, § 113; see also Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 74, ECHR 2007-II). Indeed, the Court of Justice of the European Union has made similar points in respect of Article 15 of Directive 2008/115/EC (in the 2009 case of Kadzoev) and in respect of Article 9(1) of Directive 2013/13 (in the 2016 case of J.N.) (see paragraphs 42 and 44 above).
83. The Court has unequivocally held that Article 5 § 1(f) of the Convention does not lay down maximum time-limits for detention pending deportation; on the contrary, it has stated that the question whether the length of deportation proceedings could affect the lawfulness of detention under this provision will depend solely on the particular circumstances of each case (see A.H. and J.K. v. Cyprus, nos. 41903/10 and 41911/10, § 190, 21 July 2015; Amie and Others v. Bulgaria, no. 58149/08, § 72, 12 February 2013; Auad v. Bulgaria, no. 46390/10, § 128, 11 October 2011; and Bordovskiy v. Russia, cited above, § 50, 8 February 2005). Consequently, even where domestic law does lay down time-limits, compliance with those time-limits cannot be regarded as automatically bringing the applicant’s detention into line with Article 5 § 1(f) of the Convention (Gallardo Sanchez v. Italy, no. 11620/07, § 39, ECHR 2015; Auad, cited above, § 131).
84. In a series of Russian cases the Court has considered the existence ‑ or absence – of time-limits on detention pending extradition to be relevant to the assessment of the “quality of law” (see, for example, Azimov v. Russia, no. 67474/11, § 171, 18 April 2013; Ismoilov and Others v. Russia, no. 2947/06, §§ 139-140, 24 April 2008; Ryabikin v. Russia, no. 8320/04, § 129, 19 June 2008; Muminov v. Russia, no. 42502/06, § 121, 11 December 2008; and Nasrulloyev v. Russia, no. 656/06, §§ 73-74, 11 October 2007). In these cases the Court was addressing a recurring problem of uncertainty over whether a provision of domestic law laying down the procedure and specific time-limits for reviewing detention applied to detention pending extradition. In light of this uncertainty, in a number of those cases the Court held that the domestic law was not sufficiently precise or foreseeable to meet the “quality of law” standard. In other words, the deprivation of liberty to which the applicants were subjected was not circumscribed by adequate safeguards against arbitrariness (see, for example, Nasrulloyev, cited above, § 77).
85. The Court adopted a similar approach in Louled Massoud, cited above, § 71, in which it found that the Maltese legal system did not provide for a procedure capable of avoiding the risk of arbitrary detention pending deportation. It reaching this conclusion it noted that, in the absence of time‑limits, the applicant was subject to an indeterminate period of detention, and the necessity of procedural safeguards (such as an effective remedy by which to contest the lawfulness and length of his detention) therefore became decisive.
86. In Abdolkhani and Karimnia, cited above, § 135 and Garayev, cited above, § 99 the Court held that in the absence of clear legal provisions establishing the procedure for ordering and extending detention or extradition with a view to deportation and setting time-limits for such detention, the deprivation of liberty to which the applicants were subjected was not circumscribed by adequate safeguards against arbitrariness. Similarly, in Mathloom v. Greece, no. 48883/07, § 71, 24 April 2012, although the Court’s conclusions refer to the fact that “the relevant provisions of domestic law governing the detention of persons under judicial expulsion do not set the maximum length of such detention”, it is clear from the preceding paragraphs that it also viewed as significant the fact that the applicant had been detained for “an unreasonably long period” (more than two years), during which time his expulsion had not been possible. Consequently, the relevant authorities had failed to exercise “due diligence”.
(iii) Automatic judicial review
87. Although the Court has made it clear that the existence of an effective remedy by which to contest the lawfulness and length of detention may be a relevant procedural safeguard against arbitrariness (Louled Massoud, cited above, § 71), it has not, to date, held that Article 5 § 1(f) requires automatic judicial review of detention pending deportation. In fact, as with time-limits, it has found that the existence of such a remedy will not guarantee that a system of immigration detention complies with the requirements of Article 5 § 1(f) of the Convention; for example, in Auad, cited above, § 132 it found that the fact that the applicant’s detention was subject to automatic periodic judicial review provided an important safeguard against arbitrariness but could not be regarded as decisive.
88. In the context of Article 5 § 4, the Court has made it clear that that provision’s requirement that “everyone who is deprived of his liberty … shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court” does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances (Louled Massoud, cited above, § 40). Nevertheless, the Court has provided some guidance on what might constitute an “effective remedy”. First, the remedy must be made available during a person’s detention to allow that person to obtain speedy review of its lawfulness. Secondly, that review must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (see Louled Massoud, cited above, § 40 and A. and Others v. the United Kingdom [GC], no. 3455/05, § 203, ECHR 2009‑…). Thirdly, the review should also be capable of leading, where appropriate, to release. Finally, it must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see Muminov, cited above, § 113, and Ismoilov, cited above, § 145, 24 April 2008).