The ECHR ruling of July 09, 2021 in the case "M.A. v. Denmark" (complaint No. 6697/18).
In 2018, the applicant was assisted in the preparation of the complaint. Subsequently, the complaint was communicated to Denmark.
In the case, a complaint was successfully considered about the unjustified three-year waiting period established by law for family reunification in respect of persons under additional or temporary protection, which does not allow for an individual assessment of the circumstances of the case. There was a violation of the requirements of article 8 of the Convention in the case.
CIRCUMSTANCES OF THE CASE
The applicant is a Syrian citizen who left this country in 2015 for Denmark, where he was granted "temporary protection status" for one year in accordance with the Aliens Act (hereinafter referred to as the Law), while his residence permit was subsequently extended also for one year. The Danish Migration Service did not establish that the applicant met the requirements for obtaining a special "convention status" or "protection status", according to which a residence permit was usually issued for five years. After five months of living in Denmark, the applicant requested to be reunited with his family, which consisted of his wife and two adult children. His application was rejected because the applicant had not had a residence permit for the past three years, as required by law, and because there were no exceptional grounds to otherwise allow family reunification. The applicant unsuccessfully appealed against the refusal of permission to reunite with his spouse until the Supreme Court of Denmark, which ruled in 2016.
In 2018, having lived in Denmark for just over two years and ten months, the applicant filed a new application for family reunification. After the correct documents were submitted, the applicant's spouse was granted a permit and she entered the country.
LEGAL ISSUES
Regarding compliance with article 8 of the Convention. The European Court has not previously considered the issues of whether the requirements of Article 8 of the Convention and, if so, to what extent, the three-year waiting period provided for by law for family reunification in respect of persons under additional or temporary protection met.
(a) Case law regarding substantive requirements for family reunification. In general, the Court questioned whether there was a positive obligation of the State party to guarantee family reunification if one or more of the following circumstances occurred:
- family life arose at a time when the interested persons realized that the migration status of one of them was such that the continuation of family life in the host state from the very beginning would be doubtful;
- the person requesting permission for family reunification had limited ties with the host State, which was usually implied if this person was in the country for a short time and illegally;
- there were no insurmountable circumstances for family residence in the country of origin for persons requesting permission to reunite;
- the person requesting permission for family reunification (sponsor) could not prove that he has sufficient and permanent income, which is not social benefits, to pay the basic expenses for the maintenance of his family members.
At the same time, the European Court was ready to recognize that there was a positive obligation if there was a combination of the following circumstances:
- the person requesting permission for family reunification had a stable position in the receiving State or strong ties with that country;
- family life has already been established when the requesting person has reached a stable position in the receiving State;
- both the requesting person and his family members already resided in the requesting State at the time of filing the application;
- children participated in the case, because their interests were given special importance;
- there were insurmountable or significant obstacles to family residence in the State of origin of the person requesting family reunification.
(b) Limits of discretion. The European Court, taking precedent decisions on such issues, had to consider the limits of the discretion granted to the State. Several factors were taken into account.
(i) The Convention and existing case law. There were several arguments in favor of giving States broad discretion. Firstly, article 8 of the Convention does not guarantee absolute rights. When it comes to migration, this rule cannot be considered as imposing on the State a general obligation to respect the choice of a married couple of the country of their joint residence or to authorize family reunification in this country. The European Court has repeatedly recognized that migration control is a legitimate purpose for State interference in the right to respect for family life within the meaning of article 8 of the Convention. The same applies to positive commitments. Secondly, the European Court recognized that migration control serves the general interests of the economic well-being of the country and, in relation to this control, the State is usually given wide discretion.
At the same time, the general situation of violence in a particular State may be so tense as to justify the conclusion that any person returned to the State will be at risk of ill-treatment in violation of the requirements of article 3 of the Convention solely on the basis of his presence in the country. The absolute nature of the right guaranteed by article 3 of the Convention does not provide for any exceptions or justifications, or balancing of interests. Consequently, the increased flow of migrants cannot release the State from the obligations established by the said convention provision. In principle, this factor may also limit the discretion of States in determining a fair balance between the opposing interests of family reunification and the interests of migration control in accordance with article 8 of the Convention, although during periods of massive influx of refugees and significant resource constraints, host States should be able to assume, that the scope of their discretion includes the possibility of granting the protection provided for in article 3 of the Convention to a greater number of persons in comparison with compliance with the interest provided for in article 8 of the Convention for family reunification of some of these persons. In addition, considerations regarding procedural requirements consistent with article 8 of the Convention for processing refugee applications for family reunification should equally apply to persons under additional protection, including persons against whom there is a risk of treatment contrary to article 3 of the Convention due to the general situation in their country of origin and, if this risk has been not temporary, but apparently permanent and lasting.
(ii) The quality of parliamentary and judicial checks. The European Court has repeatedly noted that its competence includes consideration of decisions taken by the legislative bodies of States, and it also assessed the quality of parliamentary and judicial checks on the need for a specific measure. The European Court also pointed out that Protocol No. 15 to the Convention amending it, including increased attention to the principle of subsidiarity and the doctrine of discretion, was to enter into force on August 1, 2021.
(iii) The degree of consensus at the national, international and European levels on the applicability to the present case. The European Court did not find any common grounds at the State, international and European levels in relation to the waiting period for family reunification.
(iv) Conclusion. Taking into account the above, the Court considered that the participating States should be given a wide margin of discretion in deciding whether to apply a waiting period for family reunification if the request for reunification is submitted by a person who does not have refugee status but enjoys additional protection or, as in the case of the applicant, temporary protection.
Nevertheless, the discretion that States enjoy in this area cannot be unlimited and must be assessed in the light of the proportionality of the measure taken. Although the European Court did not see any reason to challenge the rationality of the two-year waiting period underlying Article 8 of the Council of the European Union Directive 2003/86/EC "On the right to family reunification" (three years were considered permissible only as an exception), if we are talking about periods exceeding the specified period, then insurmountable obstacles to the implementation of family life in the country of origin progressively becomes more important when assessing the fair balance of interests of the parties. Although article 8 of the Convention cannot be considered to impose on the State authorities a general obligation to authorize family reunification on its territory, the requirements of the Convention should be applicable in practice and effective, and not theoretical and illusory when applied to a specific case.
In addition, the aforementioned assessment of the fair balance of interests of the parties should be part of the decision-making process, which sufficiently guarantees the flexibility, speed and efficiency necessary to comply with the applicant's right to respect for family life provided for in article 8 of the Convention.
(c) The application of the above principles in the present case. The key question was whether the Danish authorities, by denying the applicant's application for family reunification in September 2016 due to the need to comply with the three-year waiting period, had ensured a fair balance between the opposing interests of the individual and society as a whole. The applicant's interest was to reunite with his family as quickly as possible, while the Danish authorities defended their interest in controlling migration as a way of protecting the common interest, that is, ensuring the economic well-being of the country, as well as a way to guarantee the effective integration of protected persons to preserve the cohesion of society. However, regarding the last mentioned point, it should be remembered that family reunification can also serve the purpose of preserving the cohesion of society and promote the integration of foreigners into society.
(i) Legislative framework and policy framework. The European Court did not see any reason to challenge the distinction made by Danish law between, on the one hand, persons who are protected as a result of an individual threat, namely those who have refugee status under the United Nations Convention relating to the Status of Refugees, and, on the other hand, persons who have received protection as a result of a general threat, the so-called temporary protection status.
The European Court also found that the general justifications for the legal norms on the status of temporary protection were based on the need to control the migration of the population, which served the common interests of the economic well-being of the country, as well as the need to ensure the effective integration of protected persons in order to preserve social unity. Moreover, when the three-year waiting period for family reunification came into effect in 2016, the Danish legislature did not have the opportunity to receive, according to existing case law, any clear guidance on whether such a legislative restriction was in accordance with article 8 of the Convention and, if so, to what extent.
However, the three-year waiting period, although temporary, was by all standards a long period of separation from the family, when the family members who remained away lived in a country where arbitrary brutal attacks and ill-treatment of the civilian population took place, and it was recognized that there were insurmountable obstacles to family reunification in that country. In addition, the actual period of family separation will inevitably be even longer than the stated waiting period, and will worsen the gap in family life, and also, as in the present case, will destroy the mutual joy of family living together, which is the essence of life in marriage. Family members are separated during the flight, the first hours of arrival in the host State while the migration authorities are considering the application for asylum, as well as for some time after the three-year waiting period (or, as in the present case, for two months before this period), while the authorities make a decision.
Despite the fact that a "revision clause" was introduced into the Law so that the three-year waiting period could be revised, at the latest during the 2017/18 parliamentary year, it seems that the sharp reduction in the number of asylum seekers in 2016 and 2017 did not contribute to any revision of the three-year waiting rule.
(ii) The individual situation of the applicant. As for the special circumstances of the persons affected by this case, it was obvious that the applicant and his spouse had been married for a long time, since they had been married for 25 years. The applicant fled Syria as a result of arbitrary violent attacks and ill-treatment of the civilian population. The applicant left his wife in Syria in order, according to him, to protect her from the hardships of moving, and also with the hope that she would be able to join him in the host State as soon as the applicant acquired a stable status in that country. With regard to the degree of ties with Denmark, the applicant had been living in this country for five months when he filed a family reunification application in 2015, and one year and three months when this application was rejected in September 2016. Thus, at the time in question, the applicant had limited ties with Denmark, and his wife had no ties with that country at all.
In its decision to refuse to grant the applicant permission to reunite with his spouse, the Danish Supreme Court took into account the applicable principles of article 8 of the Convention and relevant case law in family reunification cases. The Danish Supreme Court also noted that a number of other States parties to the Convention had similar rules and that the European Court had not yet decided to what extent such statutory waiting periods comply with Article 8 of the Convention. The Supreme Court of Denmark also took into account the preparatory materials for amendments to the legislation, which established a three-year waiting period for family reunification, and noted the background of these amendments. He agreed that the couple faced insurmountable obstacles to living together in Syria, but stressed that the obstacles to their joint family life were temporary. The applicant could have returned to Syria when the overall situation in the country would have improved. If the situation in Syria had not improved within three years from the date of granting the applicant a residence permit in Denmark, the applicant would normally have received the right to apply for permission to reunite with his family. If exceptional circumstances had arisen before the expiration of the specified three-year period, the applicant would have received permission to reunite with his family.
The European Court could not but note that after the amendments were made, the law did not allow for an individual assessment of the interest in family reunification in the light of the specific situation of the person concerned, except for an extremely limited list of exceptional situations. Also, the law did not provide for an assessment of the situation in the country of origin in order to determine the real prospects for the return of refugees or obstacles to such return. Thus, for the applicant, the legislative framework and the three-year waiting period were strict requirements, according to which the applicant experienced a long separation from his spouse, regardless of considerations of family integrity in light of the likely continued existence of obstacles to family life. It cannot be said that the applicant was given a real opportunity, in accordance with applicable law, to conduct an individual assessment of whether a shorter waiting period than three years was justified by considerations of family unity.
(iii) Conclusion. Having regard to the above, the Court was not convinced, despite the discretion granted to the Danish authorities, that the said authorities had established a fair balance of competing interests in the present case.
RESOLUTION
There was a violation of article 8 of the Convention in the case (adopted by 16 votes in favor, with one against).
The European Court also ruled unanimously that there was no need to separately consider the applicant's complaint of a violation of article 14 of the Convention, taken in conjunction with article 8 of the Convention.
COMPENSATION
In the application of article 41 of the Convention. The European Court awarded the applicant 10,000 euros in compensation for non-pecuniary damage.