The European Court’s Grand Chamber decision in Biao v. Denmark: A case of indirect discrimination against nationals of non-Danish ethnic origins

Introduction

Within the context of the on-going EU migration crisis, Denmark has been subjected to huge criticisms with regard to a recent bill that is considered to violate asylum seekers’ fundamental rights. More recently, on 24 May 2016 the Grand Chamber of the European Court of Human Rights (ECtHR) issued its decision in the case Biao v. Denmark, regarding matters of family reunification and held that Denmark had unjustifiably violated the prohibition of non-discrimination towards some of its nationals.[1] The Court found, by twelve votes to five, that there has been a violation of Article 14 of the European Convention of Human Rights (ECHR) read in conjunction with Article 8 of the Convention.^[2] The Government had indeed failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discrimination to which the applicants had been subjected arising from the relevant national legislation.[3] Notably, this decision came after the Chamber, in 2014, had found that the Danish authorities had struck ‘a fair balance between the public interest in ensuring effective immigration control and the applicants’ need to be granted family reunion in Denmark and concluded that there had been no violation of Article 8 taken alone.^[4]

In order to reach its conclusions, and consistently with its practice, the Grand Chamber considered ‘instructive’ to interpret the Danish legislation on family reunification in the light of the relevant EU law, including the Court of Justice of the European Union’s case law in the matter.[5] This post aims at examining the Grand Chamber’s decision in light of the recent developments in the relationship between the Courts of Strasbourg and Luxembourg. It will be concluded that the decision in Biao v. Denmark is perfectly consistent with the ECtHR’s practice of not only making reference to EU law and the case law of the Court of Luxembourg, but also verifying the compatibility of national legislations or practice with the ECHR, trying to look at the former through the lens of the relevant EU law or case law. Some comments on the political value of this decision when it comes to Denmark and migration issues are also included among the conclusions.

 

The facts

 

The case of Biao v. Denmark concerns the applicants’ complaint about the Danish authorities’ refusal to grant them family reunification in Denmark. Mr Biao is a Danish national of Togolese origin who is married to Asia Adamo Biao, a Ghanaian national. They live in Sweden and have a son who got Danish citizenship due to his father’s nationality. Their application for residence permit in Denmark and, therefore, their family reunification got refused in 2003 and 2004. The Danish Supreme Court upheld such a refusal in January 2010.

Before the ECtHR the applicants claimed to have been subjected to indirect discrimination in the application of the attachment requirement provided by the Danish Aliens Act as amended in December 2003, which introduced the so-called 28-year rule.[6] Pursuant to such a rule, in order for a Danish national, who has not acquired his/her nationality from the moment he/she was born and that is married to a third country national, to enjoy the privileges associated to citizenship in matters regarding family reunification, he/she needs to prove that he/she has got stronger ties with Denmark than with any other country by residing in Denmark for at least 28 consecutive years. The 28-year rule thus resulted in a differential treatment between Danish-born citizens and other nationals, as Danish nationals who had acquired nationality from the moment they were born were exempted from such a requirement.[7] This treatment was also an indirect discrimination on the basis of race or ethnic origin because persons acquiring Danish nationality later in life ‘would overwhelmingly be of different ethnic origins, that is other than Danish’.[8]

The conclusions of the Court

Having recalled that ‘a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group’,[9] and that indirect discrimination does not necessarily require a discriminatory intent,[10] the Grand Chamber considered it to be a reasonable assumption that people, who have acquired a Danish nationality later in life, would be more likely to be of non-Danish ethnic origins and that, to the contrary, Danish-born people were more likely to belong to the Danish ethnic group.[11]

According to the Court, the burden of proof was then on the Government to show that the difference in the impact of the legislation pursued a legitimate aim and was the result of objective factors unrelated to ethnic origin. Indeed,

‘no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society and a difference in treatment based exclusively on the ground of nationality is allowed only on the basis of compelling or very weighty reasons.’[12]

Although the Court noted that Article 8 ECHR when taken alone ‘cannot 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’,[13] it also held that it could apply to the present case what had been concluded in Konstantin Markin v. Russia with regard to difference in treatment on the ground of sex. That is, that ‘general biased assumptions or prevailing social prejudice in a particular country do not provide sufficient justification’.[14] The Court found that similar reasoning should apply to discrimination against naturalised nationals and therefore excluded that the problems relating to integration could be sufficient justification for the 28-year rule.

The Court also affirmed that thanks to Article 5 (2) of the European Convention on Nationality, which has been ratified by 20 states, including Denmark, there was a trend towards a European standard aiming to eliminate the discriminatory application of rules in matters of nationality between nationals from birth and other nationals.[15]

Hence, it concluded that, ‘having regard to the very narrow margin of appreciation in the present case’,[16] the Government had ‘failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discriminatory effect of the 28-year rule’.[17]This rule indeed has ‘a disproportionately prejudicial effect on persons who acquired Danish nationality later in life and who were of ethnic origins other than Danish.’[18]

EU Law and the ECtHR

It is well known that the two legal regimes pertaining to the EU and the ECHR are quite different when it comes to the principle of non-discrimination.[19] Moreover, although the Treaty of Lisbon, under article 6 (2), provides for the possibility for the EU to accede to the ECHR, in December 2014 the Court of Justice of the European Union (CJEU) issued a negative opinion in this respect. Furthermore, in its recent practice the Court of Luxembourg has increasingly avoided making explicit reference to the ECtHR’s case law.[20] As for the European Convention, according to the CJEU,

‘[i]t must be borne in mind that, in accordance with Article 6(3) TEU, fundamental rights, as guaranteed by the ECHR, constitute general principles of the EU’s law. However, as the EU has not acceded to the ECHR, the latter does not constitute a legal instrument which has been formally incorporated into the legal order of the EU.’[21]

The Strasbourg Court, on its side, has been constantly referring to both EU law and the case law of the CJEU. For instance, in its recent case Arlewin v. Sweden,[22] the Court has pronounced itself on the compatibility of the Swedish courts’ practice in application of Brussels I Regulation (44/2001) with the ECHR. In this respect, it has been observed that:

‘[t]he Court of Strasbourg relies upon the findings of the Luxembourg Court and reaffirms the existence of a direct dialogue between the two jurisdictions, with the first affirming the findings of the second in a noteworthy manifestation of its endeavour to choose –whenever possible- an interpretation of the ECHR that facilitates the proper application of EU law by national authorities.’

Consistently with this view, in Biao v. Denmark the Grand Chamber also took into consideration the relevant EU law and CJEU’s case law. Indeed, although, ‘[t]he rules for family reunification under EU law did not apply to the applicants’ case in August 2004’, the ECtHR noted that:

‘it is instructive to view the contested Danish legislation in the light of relevant EU law. Given that the first applicant has moved to Sweden, by virtue of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member States, and in the light of the CJEU’s judgment of 25 July 2008 in Metock v. Minister for Justice, Equality and Law Reform (…), the applicants and their child now have a prospect of success in applying from Sweden for a residence permit in Denmark.’[23]

Conclusions

Different legal issues arise from migration, as it is a multifaceted and complex phenomenon. Apart from the current EU migration crisis, which mostly relates to non-EU nationals, some national policies regulating issues concerning migrants can have an impact on the rights of EU nationals. If it is true that the non-discrimination prohibition contained in Article 14 ECHR has not acquired a perfectly overlapping application with the EU non-discrimination legislation, it is also worth noticing that the Strasbourg Court has examined the relevant Danish legislation in the light of the relevant EU law and affirmed that the applicants’ new applications could now possibly have ‘a prospect of success in applying from Sweden for a residence permit in Denmark’.

This decision will probably lead Danish authorities to amend their Aliens Act and abolish the 28-year rule. It is however striking that at a time when ‘no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society’, a national legislation of both an EU member and CoE state has been considered to have indirect discriminatory effects on the sole ground of race/ethnicity.

[1]Case of Biao v. DenmarkApp no. 38590/10 (ECHR, 24 May 2016).

[2]Ibid. at 154.

[3]Ibid. at 138 [emphasis added].

[4]Ibid. at 64.

[5]Ibid. at 135.

[6]Ibid. at 35.

[7]Case of Biao v. DenmarkApp no. 38590/10 (ECHR, 24 May 2016) at 25.

[8]Ibid. at 102.

[9]Ibid. at 103.

[10]Ibid.

[11]Ibid. at 112.

[12]Ibid. at 114 [emphasis added].

[13]Ibid. at 117.

[14]Ibid. at 126.

[15]Ibid. at 132.

[16]Ibid. at 138.

[17]Ibid.

[18]Ibid.

[19] See, e.g., See also European Union Agency for Fundamental Rights, Handbook on European non-discrimination law (Publication Office of the European Union 2011).

[20]OddnýMjöllArnardóttir and Antoine Buyse, Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations Between the ECHR, EU, and National Legal Orders(Routledge 2016) 19-24.

[21] Opinion 2/13, Delivered on 18 December 2014 (full court), at 179.

[22]Case of Arlewin v. Sweden App no 22302/10 (ECHR, 1 March 2016).

[23]Ibid. at 135 [emphasis added]. See also European Union Agency for Fundamental Rights, Handbook on European non-discrimination law (Publication Office of the European Union 2011) 58-59.