International Justice, Refugee and migrants
- November 16, 2021
- 10:19 am
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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