Biao v. Denmark: “28 Year Rule” – A Bit Inane?



On March 25, 2014, the European Court of Human Rights (ECHR) held by the smallest majority of four votes to three that the refusal of Denmark to grant family reunification to a Danish citizen of Tongolese origin and his Ghanaian wife did not violate Article 8 (right to family life) nor Article 14 (prohibition of discrimination) of the European Convention on Human Rights. In many countries, family reunification is an accepted reason for immigration due to the presence of one or more family members in a certain country. As a result, it enables the rest of the family to immigrate to that country as well. There is a delicate balance that country’s try to find when enforcing family reunification laws. Countries try to balance the right of the family to live together with the country’s own right to control immigration.

For family reunification to be recognized in Denmark, the applicants’ ties to Denmark must be stronger than those to the country of origin. For couples, such as is the case here, the couple’s aggregate ties to Denmark must be stronger than those to the country of origin. In the case at hand, the applicants, Mr. Biao, is a Danish national of Togolese origin, and his wife Mrs. Biao, is a Ghanaian national. Mr. Biao lived in Togo until the age of 6. Then moved to Ghana where he lived until the age of 21. At the age of 22, he entered Denmark and acquired Danish nationality in 2002. By 2003, Mr. and Mrs. Biao were married, which is when Mrs. Biao applied for family reunification. That same year, the couple moved to Sweden and had a child with Danish nationality the following year. The Applicant and his wife were excluded from family reunification due to the wife’s attachment to Ghana. This “attachment” requirement of aggregate ties, however, do not apply to people who have been Danish nationals for 28 years or people who acquired Danish citizenship as young children and have lived in Denmark for more than 28 years. This is called the “28-year rule.” It is meant to cut down the numbers on forced marriages and family reunification immigration.

The couple here argues that this Rule gives differential treatment between born Danish nationals and those that acquire nationality later in life. The couple is essentially arguing that this Rule is creating discrimination among citizens. This differential treatment, the couple argues, constitutes discrimination on the basis of race and/or ethnic origin.

The Court held that it did not see any ethnic or religious discrimination. The Court stated that the language of the Rule does not make a distinction between Danish-born nationals and those who acquire Danish nationality later in life. Furthermore, the Rule does not distinguish between ethnically Danish nationals and ethnically non-Danish nationals. Finally, the Court states that the overall purpose of the Rule is to cut down on forced marriages and family reunification immigrations. The Court stated that marriages between a Danish national and a foreign spouse will last longer if the foreign spouse has experienced citizenship for a long period of time.

This case has been referred to the Grand Chamber and there will be a hearing on April 1, 2015.

How do you think the Court will decide? Is the 28-year rule really just discrimination among citizens? What are your thoughts about this Rule?

Source: ECHR

Image: Yahoo

One comment

  1. Although I do not disagree with the application of the 28-year rule, I disagree with the rule itself, but only insofar as the year requirement. I think that there is nothing wrong with setting exceptions for individuals who are deemed nationals after a certain period of time. One could argue that you have earned that right by participating as a lawfully abiding human being. However, the length requirement – 28 years – seems unreasonable. I think, if anything, the rule discriminates in this respect. If a person moves to Denmark at age 1, he would have to wait until he was 29 years old to bypass the “attachment” requirement (if my interpretation of the law is correct). There is nothing wrong with imposing a requirement based on length of time, but other factors should be taken into consideration to determine whether or not attachment should effect individuals. I think the year requirement should be shortened. In theory, a longer year requirement would speak more at length about a person’s nationality but the problem of reasonableness persists. In summary, Denmark has every right to create exceptions for individuals who have lived within its borders for a long period of time. But maybe a 28 year requirement is not the best method for formulating that exception.

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