ECtHR - M.A. v. Denmark, Application no. 6697/18, 2021

Facts:

The applicant, a Syrian national, was granted ‘temporary protection status’ on 8 June 2015 by the Danish Immigration Service. In November 2015, he requested family reunification with his wife, but it was rejected in July 2016 on the grounds that the applicant was not in possession of a residence permit for at least three years, and there were no exceptional reasons enabling the applicant to apply for family reunification within the waiting period of three years. The latter decision was upheld by the Immigration Appeals Board in December 2016.

The applicant complained before the European Court of Human Rights (ECtHR) that he had been discriminated against compared to persons who had been granted ‘convention status’ (refugees) or ‘temporary protection status’, as these two categories weren’t subjected to a waiting period. He thus alleges that the proceedings before the Danish courts were in breach of Article 8 (right to respect for family life) read alone and in conjunction with Article 14 (prohibition of discrimination).

Decision & reasoning:

Article 8

It is the first time the European Court of Human Rights assesses the existence of a statutory waiting period for family reunification of beneficiaries of temporary protection. However, some principles and substantive requirements developed by the Court’s case law are of importance to the reasoning and decision of the Court in this case.

The Court first considers that the Convention and existing case law are in favour of a wide margin of appreciation to be accorded to the Member State. However, a balance should be struck between immigration control and favourable procedures for refugees.. Taking into account the concerns of the United Nations Human Rights Committee, the Commissioner for Human Rights and the United Nations High Commissioner for Refugees on the specific practice of Denmark, the  Court concludes that the margin of appreciation cannot be unlimited, and that measures taken should be proportional. The Court does not question the rationale of the waiting period.

Regarding the waiting period as such, the Court considers if the Danish authorities struck a fair balance between the interests of the applicant and the interests of the community/state.. The Court decides that three years is by any standard a long time to be separated from one’s family when the family member left behind remains in a country characterised by arbitrary violent attacks and ill-treatment of civilians and when there are insurmountable obstacles to reunification in the country of origin. Moreover, the Court takes into account that the actual period of separation would inevitably exceed three years in practice, disrupting the mutual enjoyment of matrimonial cohabitation, the essence of marriage.

As to the personal circumstances of the case, the Court considered that family life was already created when the sponsor achieved settled status in the host country, as the couple had been married for 25 years. Regarding the situation in Syria, the country of origin of the applicant, the Court decides that there are insurmountable obstacles to the spouses enjoying family life there. On the argument of the Danish Supreme Court that the latter obstacle is only temporary and that the applicant could return when the general situation in Syria improves, the Court finds that the Danish authorities did not provide for a review of the situation in Syria in order to determine the actual prospect of returning.

The Court also considered that the national legislation did not allow for an individualised assessment of the applicant’s situation and the interest of family unity. Beyond very limited exceptions, the statutory waiting period is considered as a strict requirement for the applicant who endures a long separation from his wife, irrespective of considerations of family unity and the duration of the obstacles to enjoy family life. An individualised assessment that considered a shorter waiting period in regard to family unity was not offered to the applicant. Based on the lack of individualised assessment, the Court is not satisfied with the balance exercise between the competing interests of the state and of the applicant. The Court thus finds a violation of Article 8 of the Convention.

Article 14

On the allegation of the applicant that the refusal of granting him family reunification was in breach of Article 14, the Court concludes that there is no need to examine this complaint separately.

Outcome:

Violation of Article 8 of the Convention.

Observations/comments:

The Court leaves open the issue of discrimination between subsidary protection status holders and refugee status holders. On this, it should be kept in mind that The Commissioner for Human Rights calls on member states of the Council of Europe to ensure that ‘beneficiaries of subsidiary protection status ’ enjoy the same family reunification rights as ‘refugees’ [105]. In line with this, the United Nations High Commissioner for Refugees holds that there is no reason to distinguish between refugees and subsidiary protection beneficiaries in regard to family reunification, underlying that a distinction is often not necessary nor objectively justified in terms of protection needs. The UNHCR also states that there is often no evidence that protection needs of subsidiary protection beneficiaries are of a shorter duration and a different nature.[112-113] Similarly, the Parliamentary Assembly of the Council Europe adopted a resolution emphasising that subsidiary protection status must not be considered as an ‘alternative refugee status with fewer rights’[114]. It is thus a missed opportunity that the Court again dismissed the applicant’s claim that he has been discriminated against compared to persons with refugee status, although they all ‘flee persecution to resume a normal life’ [82].

Other sources:

United Nations Human Rights Committee - ‘Concluding observations on the sixth periodic report of Denmark’, CCPR/C/DNK/CO/6, 2016

Council of Europe: Commissioner for Human Rights - ‘Realising the right to family reunification of refugees in Europe’, 2017

Council of Europe: Parliamentary Assembly, Family reunification of refugees and migrants in the Council of Europe member states, Resolution 2243, 2018

United Nations High Commissioner for Refugees - ‘Summary Conclusion on the Right to Family Life and Family Unity in the Context of Family Reunification of Refugees and Other Persons In Need Of International Protection’, 2017