Global Human Rights Defence

International Justice, Refugee and migrants

Author: Alessandro Di Pietrantonio
GHRD intern: International Justice and Human Rights team  LLM Università degli studi di Teramo, Italy

M.A. v. Denmark 

Background: 

The case of M.A. v. Denmark concerned a Syrian national who, upon arrival in Denmark, tried to apply  for family reunification for his wife and two children. However he was denied this possibility for more  than three years under the relevant national law (HUDOC – European Court of Human Rights, 2021a)  

M.A. fled Syria in January 2015 and requested asylum in Denmark in April of the same year while his  wife remained in Syria. On 8 June 2015, the Immigration Service granted him “temporary protection  status” under section 7(3) of the Danish Aliens Act for one year, and thereafter extended it at yearly  intervals. The authorities did not find that he met the requirements for being granted protection  status under section 7(2) of the Danish Aliens Act for which residence permits were normally granted  for five years. The applicant appealed against that decision to the Refugee Appeals Board, but the  Board upheld the decision not to grant him protection status, stating that the applicant had not been  subjected to specific and personal persecution during his stay in Syria (VerfBlog, 2021).  

In the meantime, in November 2015, the applicant requested family reunification with his wife and his  two adult children. The request was rejected in 2016 as the applicant had not had a residence permit  for the previous three years, as required by law and because there were no exceptional reasons to  otherwise justify family reunification (HUDOC – European Court of Human Rights, 2021b). At the time  of the request for family reunification, he had been residing in Denmark for five months, and his  request was refused eight months later. That decision was upheld by the Immigration Appeals Board  (LawEuro, 2021).  

M.A. complained that the decision was in breach of his rights under the ECHR and went to court. He  unsuccessfully appealed against the refusal to grant him family reunification, his action was  dismissed at two levels of jurisdiction and then finally by the Supreme Court in 2016 (Law Euro, 2021). 

On 22 October 2018, the applicant reapplied for family reunification having resided in Denmark for  just over two years and ten months. On 29 September 2019 the applicant’s wife came to Denmark  having been granted a residence permit (HUDOC – European Court of Human Rights, 2021a).  

Jurisdiction of the Court 

The European Court of Human Rights is an international judicial body set up in 1959 in Strasbourg,  France. Its main function is to rule on individual or State applications alleging violations of the civil and  political rights set out in the European Convention on Human Rights (GHRD, 2021). The Court’s  jurisdiction spreads throughout the 47 European States of the Council of Europe, and it can examine  cases involving not only the citizens of these countries but also anyone present in their jurisdiction  (GHRD, 2021). Denmark is a member of the Council of Europe and for this reason, falls within the  jurisdiction of the court (Council of Europe – Denmark, n.d.). 

M.A. decided to lodge an application before the European Court of Human Rights on 30 January 2018  relying on the alleged violation of Articles 8 (right to respect for private and family life) and 14  (prohibition of discrimination). The applicant complained that persons like him, who had been  granted “temporary protection” in Denmark, were subject to a statutory three-year waiting period  before being granted family reunification (unless exceptional reasons existed), under section 7(3) of  the Danish Aliens Act, whereas other persons being granted international protection in Denmark  were not subject to such a restriction (HUDOC – European Court of Human Rights, 2021a).  

The Court noted from the outset that the applicant’s complaint related to his 4 November 2015  application for family reunification with his wife only and therefore to the decision of 16 September  by the Danish immigration authorities to refuse temporarily to grant him family reunification. At that  time, he had had a residence permit under section 7(3) of the Aliens Act for five months (HUDOC –  European Court of Human Rights, 2021a). This case concerned thus the deferral for three years of the  applicant’s right to be granted family reunification. 

Jurisprudence of the ECHR 

For the first time in its history, the European Court of Human Rights faced the novel question of  whether, and to what extent, the imposition of a statutory waiting period for access to family  reunification for persons enjoying subsidiary protection or temporary protection status is  compatible with Article 8 of the Convention (LawEuro, 2021). 

In its prior jurisprudence, the Court has developed the general principles on family reunification in  its case-law relating to other types of situations raising issues on the extent of the State’s obligations  to admit to its territory relatives of persons residing there (LawEuro, 2021). States are entitled, as a  matter of well-established international law and subject to their treaty obligations, to control the  entry of aliens into their territory and their residence there (LawEuro, 2021). The Convention does  not guarantee the right of a foreign national to enter or to reside in a particular country. Article 8  does not 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. In a case that  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 such as, for the requesting person, achieving a settled status or having strong ties with the  host country (Strasbourg Observers, 2021).  

The existing case law concerned the more general question of whether a refusal to grant family  reunification in a given case complied with the requirements of Article 8 of the Convention. Rights of  requesting personal beneficiaries of subsidiary protection and the temporary nature of any refusal  due to the existence of a statutory waiting period of a given length were not at issue. 

The Court, in its case-law, has also affirmed certain procedural requirements about the processing  of such requests. In two important decisions the applicants had been granted residence in France  as refugees under the UN Refugee Convention (HUDOC – European Court of Human Rights, 2021a).  Subsequently, they were granted family reunification with their family members who had been  residing abroad. However, the issuing of visas was not automatic. Thus, the applicants had to obtain  the visas themselves. In Tanda-Muzinga it took three years and five months (Case of Tanda-Muzinga  v. France – Application no. 2260/10, 2014), and in Mugenzi, this process lasted for six years (Case of  Mugenzi v. France – Application no. 52701/09, 2014). The Court found a violation because the  national decision-making process did not offer the guarantees of flexibility, promptness and  effectiveness required to secure the right to respect for family life under Article 8 (HUDOC –  European Court of Human Rights, 2021a). 

Similarly, in Senigo Longue and Others v. France, the applicant had lived lawfully in France since  October 2005 as a result of family reunification with her spouse (Case of Senigo Longue and Others  v. France – Application no.19113/09, 2014). In May 2007 she had requested family reunification with  her two children who had remained in Cameroon. In connection with the examination of an  application for family reunification, for more than four years the French authorities had doubted the  applicant’s maternal relationship with the two children (Case of Senigo Longue and Others v. France  – Application no.19113/09, 2014). The Court found such a period too long, particularly considering  the best interests of the children and that the decision-making process did not sufficiently safeguard  the flexibility, speed and efficiency required to observe the applicants’ right to respect for family life  under Article 8 of the Convention (HUDOC – European Court of Human Rights, 2021a). 

The situation in Europe 

In order to better understand the situation in the rest of Europe, it may be useful to analyse how the  family reunification process works in Greece and Hungary, two EU border states that receive a very  high number of migrants, and consequently of family reunification applications, every year. 

In Greece, if you have been granted refugee status (full asylum), you can ask to bring your immediate  family members to Greece from a non-European country (Asylum in Europe, 2021). Only people who  have been granted refugee status (full asylum) can apply to bring their family members to Greece, if  you are under subsidiary protection (partial asylum), you cannot ask for your family to join you in  Greece. The request should be applied no more than 3 months after you get refugee status,  otherwise more documents and certifications are requested. This makes the procedure more  onerous and demanding. If the application for family reunification is rejected, the applicants have 10  days to submit an appeal before the competent administrative authorities. In case the appeal is  rejected, applicants have the right to lodge an application for annulment before the competent  Administrative Court of First Instance. The procedure of family reunification includes, inter alia,  communication and cooperation with the competent Greek Embassies, interviews with both the  refugee and his/her family members, DNA testing where requested, as well as legal representation  before the competent Administrative Court in case of rejection. For all these reasons, family  reunification in Greece is an extremely difficult and long procedure and it can last up to more than  three years (Asylum in Europe, 2021). 

In Hungary, both refugees and beneficiaries of subsidiary protection have the right to family  reunification. Family reunification is possible only in case the family connections had already existed  by the time the refugee or the beneficiary of subsidiary protection reached Hungary(Magyar Helsinki  Bizottstàg , n.d). It is possible to ask for family reunification right after you receive protection in  Hungary. If the family of the refugee starts the family reunification procedure within three months  after the refugee receives the status, then they only need to prove the existence of family connection  or the dependence of family members. Beneficiaries of subsidiary protection and refugees whose  family members could not submit their application for family reunification during the first three  months need to provide proof of accommodation, proof of livelihood and proof of health insurance.  If the application for family reunification is rejected you can appeal within 8 days at the Immigration  and Asylum Office. In case they reject your application again, you can turn to the Court in 30  days(Magyar Helsinki Bizottstàg , n.d). The Court can either agree with the rejection or can squash it  and order the Immigration and Asylum Office to make a new decision (Magyar Helsinki Bizottstàg ,  n.d).  

Judgment 

The crux of the matter was whether the Danish authorities, in September 2016, when refusing the  applicant’s request for family reunification, owing to the three-year waiting period, had struck a fair  balance between the competing interests of the individual and of the community as a whole. The  applicant had had an interest in reunification with his wife as soon as possible, whereas the Danish  State had had an interest in controlling immigration as a means of serving the general interests of the  economic wellbeing of the country, and of ensuring the effective integration of those granted  protection to preserve social cohesion (Strasbourg Observers, 2021).  

It was evident that the applicant and his wife had a longstanding family life since the spouses had  been married for twenty-five years. The applicant had fled Syria owing to the arbitrary violent attacks  and ill-treatment of civilians. He had left his wife behind to spare her from the hardship of travelling,  and in the hope that she would be able to join him in a host country as soon as he had obtained  settled status there. The applicant had been residing in Denmark for five months when he applied for  family reunification in June 2015, and for one year and three months when his request was refused in  September 2016 (LawEuro, 2021). Thus, at the relevant time, he had had limited ties and his wife had  had no ties to the country. 

The Court could not but note that, as amended, the Danish Alien Act did not allow for an  individualised assessment of the interest of family unity in the light of the concrete situation of the  persons concerned beyond very limited exceptions, nor had it provided for a review of the situation  in the country of origin. Thus, the statutory framework and three-year waiting period had operated  as a strict requirement for the applicant to endure a prolonged separation from his wife, irrespective  of considerations of family unity in the light of the likely duration of the obstacles (European Website  on Integration, 2021). It cannot be said that the applicant had been afforded a real possibility under  the applicable law of having an individualised assessment of whether a shorter waiting period than  three years could better meet the required fair balance. For these reasons the Court found there was  a violation of article 8, it was not satisfied that the authorities had done their utmost to ensure a fair  balance between the relevant interests at stake (HUDOC -European Court of Human Rights, 2021). 

The Court also found, unanimously, that there was no need to examine separately the applicant’s  complaint under article 14 read in conjunction with article 8 (HUDOC -European Court of Human  Rights, 2021). 

Conclusion 

Notwithstanding the states’ right to protect themselves from an uncontrolled influx of foreigners, this  new court ruling against Denmark underlines the fact that all refugees have a right to family reunification,  whether they are granted protection status, humanitarian status or convention status. There must be a  balance between the interests of the state and the refugee’s rights, which today is still not ensured in  several EU countries (European Website on Integration, 2021). 

Photo source: Syrian family comes home to a town ravaged by war (by Houssam Hariri):  https://reliefweb.int/report/syrian-arab-republic/syrian-family-comes-home-town-ravaged-war-enar 

Photo source: UNHCR says family reunifications in Italy too slow. (by ANSA): https:// www.infomigrants  .net/en/post/21048/unhcr-says-family-reunifications-in-italy-too-slow 

References: 

Asylum in Europe (2021, June, 10) Family reunification – Greece. https://asylumineurope. org/  reports/country/greece/content-international-protection/family-reunification/ 

(2021, July, 14) Denmark: European Court of Human Rights says three-year rule violates refugees’  right to family life. European Website on Integration. https://ec.europa.eu/migrant-integration  /news/denmark-european-court-of-human-rights-says-three-year-rule-violates-refugees-right-to family-life 

(2021, July, 12) Gammeltoft-Hansen, Thomas, Madsen, Mikael Rask; Palmer Olsen, Henrik. The Limits  of Indirect Deterrence of Asylum Seekers. VerfBlog. https://verfassungsblog.de/the-limits-of indirect-deterrence-of-asylum-seekers/, DOI: 10.17176/20210712-140121-0 

HUDOC – European Court of Human Rights. (2021, July, 9a) Case of M.A. v. Denmark (Application no.  6697/18) https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-211178%22]} 

HUDOC – European Court of Human Rights. (2021, July, 9b) Press release – Authorities violated  Convention with mandatory waiting period for family reunification https://hudoc.echr. coe.int/ app/  conversion/pdf/?library=ECHR&id=003-7076299-9566176&filename= Grand%20Chamber  %20judgment%20M.A.%20v.%20Denmark%20-%20Authorities%20 violated %20Convention  %20with%20mandatory%20waiting%20period%20for%20family%20reunification.pdf 

(2021, July, 12) Joao Victor Stuart. Association “Accept” and others v. Romania. GHRD. https://ghrd.org  /association-accept-and-others-v-romania/ 

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