In five judgments rendered on 12 July 2016 by the Strasbourg Court France was found to have violated, inter alia, Art. 3 ECHR due to the administrative detention of minor migrants along with their parents subject to deportation in Toulouse and Metz. The cases are: A.B. and Others v. France, R.M. and M.M. v. France, A.M. and Others v. France, R.K. v. France, and R.C. v. France.
The issues had been raised in another widely-cited case, Popov v. France, 2012. The repetitive nature of these judgments is indicative of the structural problems inherent in migrant detention in France and the rest of Europe. It also shows the need for establishing clearly in national law a prohibition of migrant children and a clear framework for applying alternative to detention measures. The “last resort” rule appears to be highly dysfunctional in practice.
Excerpt on violation of Article 3 from: A.B. et autres c France, arrêt du 12 juillet 2016:
1. Principes applicables
107. La Cour rappelle que l’article 3 de la Convention ne ménage aucune exception. Cette prohibition absolue, par la Convention, de la torture et des peines ou traitements inhumains ou dégradants montre que l’article 3 consacre l’une des valeurs fondamentales des sociétés démocratiques qui forment le Conseil de l’Europe (Soering c. Royaume-Uni, 7 juillet 1989, § 88, série A no 161).
108. Pour tomber sous le coup de l’article 3, un mauvais traitement doit atteindre un minimum de gravité. L’appréciation de ce minimum est relative par essence ; elle dépend de l’ensemble des données de la cause, et notamment de la nature et du contexte du traitement, ainsi que de ses modalités d’exécution, de sa durée, de ses effets physiques ou mentaux, ainsi que, parfois, du sexe, de l’âge et de l’état de santé de la victime (voir, entre autres, Raninen c. Finlande, 16 décembre 1997, § 55, Recueil des arrêts et décisions 1997-VIII).
109. La Cour rappelle qu’elle a conclu à plusieurs reprises à la violation de l’article 3 de la Convention en raison du placement en rétention d’étrangers mineurs accompagnés (voir Muskhadzhiyeva et autres c. Belgique, no 41442/07, 19 janvier 2010 ; Kanagaratnam c. Belgique, no 15297/09, 13 décembre 2011 ; Popov, précité) ou non (voir Mubilanzila Mayeka et Kaniki Mitunga c. Belgique, no 13178/03, CEDH 2006‑XI ; Rahimi c. Grèce, no 8687/08, 5 avril 2011). Dans les affaires concernant le placement en rétention d’enfants étrangers mineurs accompagnés, elle a notamment conclu à la violation de l’article 3 de la Convention en raison de la conjonction de trois facteurs : le bas âge des enfants, la durée de leur rétention et le caractère inadapté des locaux concernés à la présence d’enfants.
2. Application au cas d’espèce
110. La Cour constate qu’en l’espèce, et à l’instar de l’affaire Muskhadzhiyeva et autres, l’enfant des requérants était accompagné de ses parents durant la période de rétention. Elle estime cependant que cet élément n’est pas de nature à exempter les autorités de leur obligation de protéger l’enfant et d’adopter des mesures adéquates au titre des obligations positives découlant de l’article 3 de la Convention (ibid., § 58) et qu’il convient de garder à l’esprit que la situation d’extrême vulnérabilité de l’enfant est déterminante et prédomine sur la qualité d’étranger en séjour illégal (voir Popov, pécité, § 91 ; comparer avec Mubilanzila Mayeka et Kaniki Mitunga, précité, § 55). Elle observe que les directives européennes encadrant la rétention des étrangers considèrent à ce titre que les mineurs, qu’ils soient ou non accompagnés, comptent parmi les populations vulnérables nécessitant l’attention particulière des autorités. En effet, les enfants ont des besoins spécifiques dus notamment à leur âge et leur dépendance.
111. La Cour note que, lors de la rétention en cause, l’enfant des requérants était âgé de quatre ans et qu’il fut retenu avec ses parents pendant dix-huit jours au centre de Toulouse-Cornebarrieu.
112. Concernant les conditions matérielles de rétention, la Cour constate que le centre de Toulouse-Cornebarrieu compte parmi ceux « habilités » à recevoir des familles en vertu du décret du 30 mai 2005 (voir paragraphe 26 ci-dessus). Il ressort des rapports de visite de ce centre (voir les paragraphes 31 à 40 ci-dessus) que les autorités ont pris soin de séparer les familles des autres retenus, de leur fournir des chambres spécialement équipées et de mettre à leur disposition du matériel de puériculture adapté. La Cour relève d’ailleurs que les ONG ont reconnu que, contrairement à ce qui était le cas dans l’affaire Popov précitée, les conditions matérielles ne posaient pas problème dans ce centre.
113. La Cour constate cependant que le centre de rétention de Toulouse‑Cornebarrieu, construit en bordure immédiate des pistes de l’aéroport de Toulouse-Blagnac, est exposé à des nuisances sonores particulièrement importantes qui ont conduit au classement du terrain en « zone inconstructible » (voir paragraphes 33, 37 et 40). La Cour observe que les enfants, pour lesquels des périodes de détente en plein air sont nécessaires, sont ainsi particulièrement soumis à ces bruits d’une intensité excessive. La Cour considère, en outre et sans avoir besoin de se référer au certificat médical produit par les requérants, que les contraintes inhérentes à un lieu privatif de liberté, particulièrement lourdes pour un jeune enfant, ainsi que les conditions d’organisation du centre ont nécessairement eu un effet anxiogène sur l’enfant des requérants. En effet, celui-ci, ne pouvant être laissé seul, a dû assister avec ses parents à tous les entretiens que requérait leur situation, ainsi qu’aux différentes audiences judiciaires et administratives. Lors des déplacements, il a été amené à côtoyer des policiers armés en uniforme. De plus, il a subi en permanence les annonces délivrées par les haut-parleurs du centre. Enfin, il a vécu la souffrance morale et psychique de ses parents dans un lieu d’enfermement ne lui permettant pas de prendre la distance indispensable.
114. La Cour considère que de telles conditions, bien que nécessairement sources importantes de stress et d’angoisse pour un enfant en bas âge, ne sont pas suffisantes, dans le cas d’un enfermement de brève durée et dans les circonstances de l’espèce, pour atteindre le seuil de gravité requis pour tomber sous le coup de l’article 3. Elle est convaincue, en revanche, qu’au-delà d’une brève période, la répétition et l’accumulation de ces agressions psychiques et émotionnelles ont nécessairement des conséquences néfastes sur un enfant en bas âge, dépassant le seuil de gravité précité. Dès lors, l’écoulement du temps revêt à cet égard une importance primordiale au regard de l’application de ce texte. La Cour estime que cette brève période a été dépassée dans la présente espèce, s’agissant de la rétention d’un enfant de quatre ans qui s’est prolongée pendant dix-huit jours dans les conditions exposées ci-dessus.
115. Ainsi, compte tenu de l’âge de l’enfant des requérants, de la durée et des conditions de son enfermement dans le centre de rétention de Toulouse-Cornebarrieu, la Cour estime que les autorités ont soumis cet enfant à un traitement qui a dépassé le seuil de gravité exigé par l’article 3 de la Convention. Partant il y a eu violation de cet article à l’égard de l’enfant des requérants.
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.
PACE Resolution 2109 (2016) The situation of refugees and migrants under the EU-Turkey Agreement of 18 March 2016
1. The Parliamentary Assembly takes note of the European Union-Turkey Agreement of 18 March 2016, adopted against the background of the unprecedented numbers of refugees and migrants arriving in western Europe via the Eastern Mediterranean and Western Balkans route in 2015, which had generated political tensions in many States and an institutional crisis in the European Union. It recalls the fact that Turkey currently hosts over 2.7 million Syrian refugees, on whom it estimates to have spent over €7 billion.
2. The Assembly considers that the EU-Turkey Agreement raises several serious human rights issues relating to both its substance and its implementation now and in the future, in particular the following:
2.1. the Greek asylum system lacks the capacity to ensure timely registration of asylum applications, issue of first instance decisions or determination of appeals; the new Greek Law 4375/2016 may help to address earlier shortcomings but will not ensure adequate capacity;
2.2. detention of asylum seekers in the “hotspots” on the Aegean islands may be incompatible with the requirements of the European Convention on Human Rights (ETS No. 5), due notably to procedural failures undermining the legal grounds for detention and inadequate detention conditions;
2.3. children and vulnerable persons are not systematically referred from detention to appropriate alternative facilities;
2.4. returns of Syrian refugees to Turkey as a “first country of asylum” may be contrary to European Union and/or international law, as Turkey may not ensure protection that is “sufficient”, according to the position of the Office of the United Nations High Commissioner for Refugees (UNHCR), and there have been reports of onward refoulement of Syrians;
2.5. returns of asylum seekers, whether Syrians or not, to Turkey as a “safe third country” are contrary to European Union and/or international law, as Turkey does not provide them with protection in accordance with the 1951 Convention relating to the Status of Refugees, non-Syrians do not have effective access to the asylum procedure and there have been reports of onward refoulement of both Syrians and non-Syrians;
2.6. remedies against decisions to return asylum seekers to Turkey do not always have automatic suspensive effect, as required by the European Convention on Human Rights;
2.7. resettlement of Syrian refugees from Turkey is made conditional on the number of returns from Greece and will subsequently depend on a “Voluntary Humanitarian Readmission Scheme”, which is likely in practice to generate unacceptably low levels of resettlement;
2.8. there have been unreasonable delays in the European Union’s disbursement of Financial assistance promised to Turkey to help support Syrian refugees in Turkey, which should not depend on developments in the Aegean Sea.
3. The Assembly also has concerns relating to certain parallel initiatives in areas closely related to the EU-Turkey Agreement, in particular the following:
3.1. the closure by “the former Yugoslav Republic of Macedonia” of its southern border, coupled with the EU-Turkey Agreement, has added to the pressure on Greece, a country already struggling with the effects of budgetary and financial austerity;
3.2. most European Union member States have effectively failed to honour their pledges to relocate refugees from Greece, despite the growing pressure that country is under;
3.3. it is premature to consider resuming transfers to Greece under the Dublin Regulation given the continuing inadequacies of its asylum system, the additional pressure of its current situation and the fact that the Committee of Ministers of the Council of Europe has not yet closed supervision of execution by Greece of the judgment of the European Court of Human Rights in the case of M.S.S. v.Belgium and Greece.
4. The Assembly therefore recommends that Greece, as an implementing party of the EU-Turkey Agreement, and the European Union, insofar as it provides relevant operational assistance to the Greek authorities:
4.1. refrain from automatic detention of asylum seekers and ensure strict adherence to the requirements of national law, the European Convention on Human Rights and European Union law concerning both the grounds for and conditions of detention, with adequate provision for alternatives where detention is not justified or otherwise inappropriate, including following the expiry of time limits;
4.2. systematically ensure that children and vulnerable persons are promptly excluded from detention and referred to appropriate alternative facilities;
4.3. ensure that the rights and provisions under the European Union Reception Conditions Directive are fully respected for all refugees and migrants arriving in Greece;
4.4. refer the question of interpretation of the concept of “sufficient protection” in Article 35 of the
European Union Asylum Procedures Directive to the Court of Justice of the European Union and, until such interpretation has been given, refrain from involuntary returns of Syrian refugees to Turkey under this provision;
4.5. refrain from involuntary returns of asylum seekers to Turkey in reliance on Article 38 of the Asylum Procedures Directive;
4.6. ensure that sufficient resources, from within the Greek administration and seconded from other European Union member States, are rapidly made available so as to allow effective access to a proper asylum procedure and rapid first instance decisions and appeal determination, in accordance with European Union law, especially for applicants in detention;
4.7. revise the legislation to ensure that all appeals against decisions to return to Turkey have an automatic suspensive effect;
4.8. ensure that all migrants and asylum seekers whose applications are not accepted are treated with dignity and in full compliance with the European Union Return Directive.
5. The Assembly also recommends to the European Union, its member States, and States participating in European Union resettlement schemes, as appropriate:
5.1. resettlement pledges made under the 20 July 2015 European Union agreement on resettlement should be rapidly and fully honoured, regardless of developments in the implementation of the EUTurkey Agreement; beyond that, substantial numbers of Syrian refugees should be resettled from Turkey;
5.2. family reunion of refugees should be allowed without any delay or complicated procedures, in order to prevent family members from being forced to take an irregular route to reunification;
5.3. the financial assistance promised to Turkey in November 2015 to help support Syrian refugees should be disbursed without further delay;
5.4. commitments to relocate refugees from Greece should be rapidly fulfilled;
5.5. there should be no further consideration of resuming transfers to Greece under the Dublin
Regulation until the Committee of Ministers has closed its supervision of execution by Greece of the M.S.S. judgment.
6. Finally, the Assembly recommends that Turkey:
6.1. withdraw its geographical limitation to the 1951 Refugee Convention and recognise the status and fully respect the rights of refugees under that convention;
6.2. refrain from any onward refoulement of asylum seekers returned from Greece, ensuring access to the asylum system and to an effective remedy with suspensive effect against removal as required by the European Convention on Human Rights;
6.3. ensure that all migrants and asylum seekers returned from Greece are treated in full accordance with international standards, including on detention.
F. G. v. Sweden, 16 January 2014
“32. The Court reiterates that the Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if expelled, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to expel the person in question to that country (Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008).
33. The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires the Court to assess the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he or she will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II).
34. Moreover, the Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, inter alia, Collins and Akaziebie v. Sweden (dec.), no. 23944/05, 8 March 2007, and N. v. Sweden, no. 23505/09, § 53, 20 July 2010). In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention. Where such evidence is adduced, it is for the Government to dispel any doubts about it (see NA. v. the United Kingdom, no. 25904/07, § 111, 17 July 2008).
35. Thus, in order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to Iran, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108 Series A no. 215).
36. The above principles apply also in respect to Article 2 of the Convention (see, for example, Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009). The Court therefore finds that the applicant’s complaints under Articles 2 and 3 of the Convention are indissociable and it will therefore examine them together.
37. The Court notes that the applicant’s request for asylum was carefully examined by the domestic authorities. There are no indications that these proceedings lacked effective guarantees to protect the applicant against arbitrary refoulement or were otherwise flawed. The Court will therefore continue by examining whether the information presented before it could lead it to depart from the domestic authorities’ conclusions.
38. As regards the applicant’s political activities in Iran, the Court observes that he has claimed, inter alia, that he participated in the campaign for the opposition before and during the elections in 2009, that he worked with persons who were known to be opposed to the regime and that his work mainly entailed creating and publishing web pages. The Court finds that no information has emerged to indicate that the applicant’s political activities and engagement were anything more than peripheral. Furthermore, the Court notes that the domestic authorities considered that the applicant’s statements concerning his political activities were vague and lacking in details. The Court can see no reason to deviate from this assessment. Even at this late juncture, the applicant has failed to submit any detailed description of the webpages in question and their alleged critical content. Furthermore, and as the Government have underlined, the applicant has not submitted anything, apart from his own statements, to substantiate the existence of these web pages.
39. The Court also notes that the applicant has claimed that he was able to work with the web pages that contained the critical material until the elections in 2009. In other words, he was able to continue to publish material which was critical of the regime until the elections in 2009, even though he had been questioned in 2007 and despite the Iranian authorities being aware of his activities. The Court finds this remarkable, especially given that the applicant has stated that the material he had in his possession in 2007 did not differ from the material he had in his possession in 2009.
40. Furthermore, the Court observes that the applicant has not been summoned to appear before the Revolutionary Court since November 2009. It is also noted that the applicant has stated that his family in Iran has not been targeted because of his political activities. Lastly, it is observed that the applicant has not claimed to have continued his political activities following his arrival in Sweden.
41. As regards the applicant’s conversion, the Court observes that the applicant expressly stated, before the domestic authorities, that he did not wish to invoke his religious affiliation as a ground for asylum, since he felt that this was a private matter. The Court notes that the applicant had the opportunity to raise the question of his conversion during the oral hearing before the Migration Court but chose not to. This stance ultimately changed when the expulsion order against him became enforceable. Moreover, the applicant has claimed that he converted to Christianity only after arrival in Sweden and he has kept his faith a private matter. Against this background, and apart from the possible publication of the applicant’s image in connection with broadcasted church services, the transmission of which to the Iranian authorities is merely speculative, the Court finds that there is nothing to indicate that the Iranian authorities are aware of his conversion. Consequently, the Court considers that the applicant would not face a risk of ill‑treatment by the Iranian authorities on this ground.
42. In conclusion, the Court considers that the applicant has failed to substantiate that, if returned to Iran, he would face a real and concrete risk of being subjected to treatment contrary to Article 2 or 3 of the Convention. Consequently, his expulsion to Iran would not involve a violation of Article 2 or 3.”