Nimo Mohammed Aden and Liban Mohammed Hassan v. Denmark. Views of the Human Rights Committee of July 8, 2019 Communication No. 2531/2015.
In 2015, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to Denmark.
The authors argued that the rejection of their application for family reunification in Denmark constituted an unlawful interference by the State party with their right to family life, protected by articles 17 and 23 of the Covenant. They have shown that the application of the presumption provided for in paragraph 8 of article 9 of the Aliens Act in their case is tantamount to shifting the burden of proof. They stressed that they could not effectively challenge this presumption and achieve its cancellation, since Ms. Aden was not given the opportunity to make an oral statement to the Immigration Appeals Board. Thus, the authors noted that the migration authorities concluded that their marriage was forced, there was no thorough investigation and the burden of proof was placed solely on them, which is a violation of both articles 17 and 23 of the Covenant.
Paragraph 8 of article 9 of the Law on Foreigners states: "[p]ri the absence of exceptional grounds convincingly testifying to the contrary... A residence permit in accordance with subparagraph 1 (i) cannot be issued if it is considered doubtful that the marriage was concluded or cohabitation was established at the own request of both parties. If the marriage was concluded or cohabitation was established between close relatives or other closely related parties, then it should be considered doubtful that the marriage was concluded or cohabitation was established at the own request of both parties, unless specific grounds, including considerations of respect for family unity, indicate otherwise."
Family reunification is included in the scope of protection provided by article 23 of the Covenant (see: Ngambi and Nebol v. France (CCPR/C/81/D/1179/2003), para. 6.4).
The Committee's legal position: The Committee refers to its general comment No. 16 (1988) on the right to privacy, which, with regard to the term "family", states that the purpose of the Covenant requires that, for the purposes of article 17 [of the International Covenant on Civil and Political Rights], this concept be interpreted broadly and cover all those who are part of the family, as it is understood in the society of the State party concerned. In its general comment No. 19 (1990) on the family, the Committee also notes that the concept of family may differ in certain aspects in different States and even in different areas of the same State and emphasizes that when a group of persons is considered as a family in the legislation and practice of a State, it must be the object of protection provided for in article 23 (paragraph 10.3 of the Considerations).
The Committee recalls that article 23 of the Covenant guarantees the protection of family life, including the interest in family reunification. For the purposes of the Covenant, the term "family" should be interpreted broadly and include all those who are part of the family as it is understood in the relevant society. The right to protection of family life is not necessarily lost due to the geographical division of the family, adultery or lack of marital relations (See: Ngambi and Nebol v. France (CCPR/C/81/D/1179/2003), paragraph 6.4.). Nevertheless, initially there must be a subject of protection in the form of family ties (paragraph 10.4 of the Considerations).
The Committee draws attention to the fact that, as a rule, it is for the authorities of the States parties to assess the facts and evidence in the case in question in order to decide on the application of domestic legislation (in the present case, the provisions of article 9 (paragraph 8) of the Aliens Act), unless it can be established that such an assessment was manifestly arbitrary of a nature or amounted to a clear error or denial of justice (paragraph 10.5 of the Considerations).
[C] The single residence of a husband, wife and child should be considered as a normal family situation (paragraph 10.8 of the Considerations) (See: Omeruddi-Ziffra et al. v. Mauritius (CCPR/C/12/D/35/1978), paragraph 9.2, which states that, in principle, article 17 (paragraph 1) also applies when one of the spouses is a foreigner.).
The Committee's assessment of the factual circumstances of the case: it took note of the authors' claim that the rejection of their application for family reunification due to the presumption contained in paragraph 8 of article 9 of the Aliens Act, which amounts to shifting the burden of proof, constituted an unlawful interference by the State party with their right to family life, protected by articles 17 and 23 of the Covenant (paragraph 10.2 of the Views).
The Committee noted that the marriage of the authors in Kenya was not disputed, but questioned (mainly how the authors could prove that their relationship was not a forced marriage and they entered into a marital relationship on the basis of their free and full consent). The Committee took into account the conclusion of the Immigration Appeals Board, according to which the authors were unable to prove that there were substantial grounds to believe so, as a result of which the authors were unable to effectively challenge and refute the presumption of forced marriage in accordance with article 9 (paragraph 8) of the Aliens Act. The Committee noted: The Council based its decision on the fact that the authors are cousins and did not live together before and after marriage, and that the Council concluded that they could not prove that they had family ties that were subject to protection. However, the Committee recalled the following: This decision was taken without giving Ms. Aden the opportunity to make an oral statement and without calling other witnesses to the Council. Consequently, the Danish immigration authorities did not assess the marital relationship of the authors based on the direct testimony of Ms. Aden. The Committee also stressed - The criteria applied by the State party to assess how the authors can prove their marital relationship (other than cohabitation) are unclear, since the authors have repeatedly informed the Danish authorities that their marriage was consensual, that they have a child and that they often communicated both by phone and during the visit.- Hassan to his wife, all this suggested that their relationship, which has been going on for the last seven years, falls under the definition of "family" in accordance with articles 17 and 23 (paragraph 10.6 of the Considerations).
The Committee has noted the State party's contention that the presumption rule contained in article 9 (paragraph 8) of the Aliens Act was designed to protect a marriage entered into with free and full consent. However, in view of the above, the Committee considered that in assessing the marital relations of the authors, the immigration authorities did not properly take into account the marital relations of the authors in the context of their personal situation and the culture of their country of origin (paragraph 10.7 of the Considerations).
With regard to the authors' allegations regarding articles 17 and 23, the Committee noted that the State party's actions could be qualified as preventing family reunification in Denmark.... Consequently, the refusal of a spouse to issue a visa to the country where the other spouse and their child live together can be equated to interference within the meaning of article 17. Thus, the Committee concluded that the State party had failed to comply with its obligation under articles 17 and 23 to respect the family unit (paragraph 10.8 of the Views).
The Committee's conclusions: The facts presented reveal unjustified interference with family life and a violation by the State party of articles 17 and 23 of the Covenant in respect of Mr. Hassan (paragraph 11 of the Views).