M.A. v. Denmark [GC] (European Court of Human Rights)

Information Note on the Court’s case-law 253
July 2021

M.A. v. Denmark [GC]6697/18

Judgment 9.7.2021 [GC]

Article 8
Positive obligations
Article 8-1
Respect for family life

Unjustified statutory three-year waiting period for family reunification of persons benefitting from subsidiary or temporary protection, not allowing individualised assessment: violation

Facts – The applicant is a Syrian national who fled the country in 2015 and entered Denmark. In Denmark, he was granted “temporary protection status” for one year under the Aliens Act (“the Act”) and his residence permit was subsequently extended for one year at a time. The Immigration Service did not find that he had fulfilled the requirements for being granted special “Convention status” or “protection status”, for which residence permits were normally granted for five years. After five months of residing in Denmark, the applicant requested family reunification with his wife and two adult children. His request was rejected because he had not been in possession of a residence permit for the last three years, as required in law, and because there were no exceptional reasons to otherwise justify family reunification. The applicant unsuccessfully appealed against the refusal to grant him family reunification with his wife up to the Supreme Court, which handed down its decision in 2016.

In 2018, having resided in Denmark for just over two years and ten months, the applicant submitted a new request for family reunification. After submitting the correct documentation, the applicant’s wife was granted a permit and entered the country.

Law – Article 8:

The Court had not previously been called on to consider whether, and to what extent, the imposition of a statutory waiting period for granting family reunification to persons who benefit from subsidiary or temporary protection status was compatible with Article 8.

(a) Case-law on the substantive requirements regarding family reunification

In general, the Court had been reluctant to find that there had been a positive obligation on the part of the member State to grant family reunification, when one or several of the following circumstances had been present:

On the other hand, the Court had generally been prepared to find that there had been a positive obligation when several of the following circumstances had been cumulatively present:

(b) Scope of the margin of appreciation

It was also pertinent for the Court to consider the scope of the margin of appreciation available to the State when taking policy decisions of the kind at issue. A series of factors came into play:

(i) The Convention and existing case-law:

Several arguments militated in favour of according the States a wide margin of appreciation. Firstly, there were no absolute rights under Article 8; where immigration was concerned, the said provision could not 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. The Court had on numerous occasions recognised that immigration control is a legitimate aim for the State to interfere with the right to respect for family life within the meaning of Article 8. The same applied with regard to positive obligations. Secondly, the Court had acknowledged that immigration control served the general interests of the economic well-being of a country in respect of which a wide margin was usually allowed to the State.

On the other hand, the situation of general violence in a country might be so intense as to conclude that any returnee would be at real risk of Article 3 ill-treatment solely on account of his or her presence there. The absolute nature of the right under Article 3 did not allow for any exceptions or justifying factors or balancing of interests. Accordingly, an increased influx of migrants could not absolve a State of its obligation under that provision. In principle, that factor might also reduce the latitude enjoyed by States in striking a fair balance between the competing interests of family reunification and immigration control under Article 8, albeit that, during periods of mass influx of asylum-seekers and substantial resource constraints, recipient States should be entitled to consider that it fell within their margin of appreciation to prioritise the provision of Article 3 protection to a greater number of such persons over the Article 8 interest of family reunification of some. Furthermore, considerations as to procedural requirements under Article 8 for the processing of family reunion requests of refugees had to apply equally to beneficiaries of subsidiary protection, including to persons who were at a risk of ill-treatment falling under Article 3 due to the general situation in their home country and where the risk was not temporary but appeared to be of a permanent or long-lasting character.

(ii) The quality of the parliamentary and judicial review: The Court had repeatedly held that the choices made by the legislature were not beyond its scrutiny and had assessed the quality of the parliamentary and judicial review of the necessity of a particular measure. The Court also noted that Protocol No. 15 amending the Convention, including by emphasising the principle of subsidiarity and the doctrine of the margin of appreciation, would enter into force on 1 August 2021.

(iii) The degree of consensus at national, international and European levels of relevance to the present case: The Court did not discern any common ground at the national, international and European levels in regard to the length of waiting periods.

(iv) Overall:

Having regard to all the elements, the Court considered that member States should be accorded a wide margin of appreciation in deciding whether to impose a waiting period for family reunification requested by persons who had not been granted refugee status but who enjoyed subsidiary protection or, like the applicant, temporary protection.

Nevertheless, the discretion enjoyed by the States in this field could not be unlimited and fell to be examined in the light of the proportionality of the measure. While the Court saw no reason to question the rationale of a waiting period of two years as that underlying Article 8 of the EU Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (three years being accepted only by way of derogation), beyond such duration the insurmountable obstacles to enjoying family life in the country of origin progressively assumed more importance in the fair balance assessment. Although Article 8 could not be considered to impose on a State a general obligation to authorise family reunification on its territory, the requirements of the Convention had to be practical and effective, not theoretical and illusory in their application to the particular case.

Furthermore, the said fair-balance assessment had to form part of a decision-making process that sufficiently safeguarded the flexibility, speed and efficiency required to comply with the applicant’s right to respect for family life under Article 8.

(c) Application to the present case

The crux of the matter was whether the Danish authorities, in September 2016, when refusing the applicant’s request for family reunion, 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 being reunited 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 with a view to preserving social cohesion. However, on the latter point, it should be borne in mind that family reunification might also favour preserving social cohesion and facilitate integration.

(i) The legislative and policy framework

The Court found no reason to question the distinction made by the Danish legislature in respect of persons granted protection due to an individualised threat, namely refugee status under the UN Convention relating to the status of refugees or “protection status”, on the one hand, and persons granted protection due to a generalised threat, the so-called “temporary protection status”, on the other hand.

The Court also found that the general justifications for the provisions concerning the “temporary protection status” had been based on a need to control immigration, which had served the general interests of the economic well-being of the country, and the need to ensure effective integration of those granted protection with a view to preserving social cohesion. Moreover, when introducing the three-year waiting period in 2016, the Danish legislature had not had the benefit of any clear guidance being given in the existing case-law on whether, and to what extent, the imposition of such a statutory waiting period would be compatible with Article 8.

However, a waiting period of three years, although temporary, was by any standard a long time to be separated from one’s family, when the family member left behind remained in a country characterised by arbitrary violent attacks and ill-treatment of civilians and when insurmountable obstacles to reunification there had been recognised. Moreover, the actual separation period would inevitably be even longer than the waiting period and would exacerbate the disruption of family life and, as in this case, the mutual enjoyment of matrimonial cohabitation, which was the essence of married life. The family members would also be separated during the period of flight, during the initial period after arrival in the host country pending the immigration authorities’ processing of the asylum application, and for some time after the three-year waiting period (or two months before, as in the present case), pending their decision.

Moreover, although a “revision clause” had been maintained in the Act so that the three-year waiting period could be reviewed during the 2017/2018 parliamentary year at the latest, it did not appear that the sharp fall in the number of asylum-seekers in 2016 and 2017 had prompted any reconsideration of the three-year rule.

(ii) The applicant’s individual case

As to the particular circumstances of the persons involved, 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, according to the applicant, in order 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. As to the extent of their ties to the respondent State, 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. Thus at the relevant time, he had had limited ties and his wife had had no ties to the country.

In its judgment refusing to grant the applicant family reunification with his wife, the Supreme Court had had regard to the applicable principles under Article 8 and the relevant case-law on family reunification. It had noted that a number of other member States had similar rules, and that the European Court had not yet considered to what extent such statutory waiting periods would be compatible with Article 8. The Supreme Court had also had regard to the preparatory notes to the legislative amendments leading to the three-year waiting period and had noted the background of the amendment. It had accepted that the spouses had faced insurmountable obstacles to cohabiting in Syria, but had emphasised that the obstacle to their exercise of family life together had only been temporary. The applicant could return to Syria when the general situation in the country improved. If there was no such improvement within three years from the date on which he was granted residence in Denmark, he would normally be eligible for family reunification with his spouse. Should exceptional circumstances emerge before the expiry of the three-year period, he could be granted family reunification. Against that background, the Supreme Court had found that the three-year waiting period had fallen within the margin of appreciation enjoyed by the State when balancing the relevant interests at stake.

The Court could not but note that, as amended, the 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 with a view to determine the actual prospect of return or obstacles thereto. Thus, for the applicant, the statutory framework and three-year waiting period had operated as a strict requirement for him to endure a prolonged separation from his wife, irrespective of considerations of family unity in the light of the likely duration of the obstacles. It could not 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 had been warranted by considerations of family unity.

(iii) Overall: Having regard to the above considerations, the Court was not satisfied, notwithstanding the margin of appreciation, that the authorities had struck a fair balance between the relevant interests at stake.

Conclusion: violation (sixteen votes to one).

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.

Article 41: EUR 10,000 in respect of non-pecuniary damage.

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