TrustHLT/LaCour huggingface dataset:
GR1 (Government): It is hard to disagree with these general assertions and assumptions.
GR1 (Government): They seem self-evident, even in the absence, and I regret that, of accurate and detailed statistics.
GR1 (Government): Because it is in the nature of things that immigration controls, and in particular, preferential measures for nationals with long and lasting ties with the country, on average, work less to the benefit of people of foreign extraction compared to people born nationals of the host country.
GR1 (Government): On average, that is, not completely or exclusively.
GR1 (Government): This fact does not mean that the applicants have been directly or indirectly discriminated against on the basis of the ethnic origin.
GR1 (Government): The 28-year exception rule is aimed at persons who, seen from a general perspective, can be assumed to have ties with Denmark that are so strong that, in view of the integration considerations on which the attachment requirement was based, it would be unreasonable to enforce the attachment requirement.
GR1 (Government): My colleague seems to imply that only if statistical proof at the time of the legislature's decision was available could the legislature have aimed by political measures to benefit this group of Danish nationals.
GR1 (Government): We disagree.
GR1 (Government): Political decisions do not necessarily have to be based on statistical surveys.
GR1 (Government): The government agrees with the Danish Supreme Court that a 28-year-old person who acquired Danish nationality by birth will generally have stronger and more genuine ties with Denmark and greater insight into Danish society than a 28-year-old or older person who, like the first applicant, only came to Denmark as a young person or an adult.
GR1 (Government): Again, the government refers to the Abdulaziz decision where British exception rules were alleged to amount to discrimination based on race or ethnic origin.
GR1 (Government): The court replied in paragraph 85 that it regarded the provisions as being exceptions, quote, designed for the benefit of persons having a close link with the United Kingdom, which do not affect the general tenor of the rules, unquote.
GR1 (Government): And this reasoning was followed by the chamber in this case.
GR1 (Government): Mr. President, I now move on to the second theme
GR1 (Government): of disagreement between the applicants and the government.
GR1 (Government): The legitimacy and proportionality of the 28-year exception rule as applied to the facts of the present case.
GR1 (Government): The 28-year exception rule, which was changed to a 26-year exception rule in 2012 for political reasons after a change of government, pursues a legitimate aim.
GR1 (Government): It was introduced in 2003 and took effect from January 2004 to exempt from the attachment requirement a group of nationals who, seen from a general perspective, had strong and lasting ties with Denmark.
GR1 (Government): It is clearly motivated in the preparatory acts from 2003 reproduced on page 11 in our written observations.
GR1 (Government): And I quote, the aim is to ensure that Danish expatriates with strong and lasting ties with Denmark in the form of at least 28 years of Danish nationality will be able to obtain spousal reunification in Denmark, unquote.
GR1 (Government): And to give, quote, Danish expatriates a real opportunity of returning to Denmark with a foreign spouse or cohabitant, end quote, and giving young Danes wishing to go abroad, quote, the certainty of not being barred from returning to Denmark with a foreign spouse or cohabitant as a consequence of the attachment requirement, end quote.
GR1 (Government): Politically, it was felt in 2003 that this group of actual or potential Danish expatriate nationals had been unintentionally and unfairly disadvantaged by the tightening of the attachment requirement introduced one year earlier in 2002.
GR1 (Government): The original attachment requirement was introduced by a previous government in 2000 and accepted to begin with all Danish nationals, regardless of how long they had been Danish nationals.
GR1 (Government): Now, does this measure, this exception rule of 20 years of nationality, amount to an illegitimate or disproportionate or discriminatory preferential treatment of certain Danish nationals?
GR1 (Government): Many countries in Europe have various provisions in their immigration and citizenship legislation for the preferential treatment of expatriates and the diaspora of their nation.
GR1 (Government): Keeping the door open for expatriates is far from unusual and seen in many countries as a contribution to preserving a national identity, a completely legitimate societal aim.
GR1 (Government): In fact, it was explicitly recognized by the court in Abdullah's paragraph 88 that there are, quote, in general, persuasive social reasons for giving special treatment to those whose link with a country stems from birth within it.
GR1 (Government): This exact paragraph from Abdullah's was not only relied on by the Danish legislature and courts.
GR1 (Government): It has also been relied on recently by the European Court of Human Rights.
GR1 (Government): In the Pono Marijof case, the court in 2007, citing paragraph 88 of Abdullah's, dismissed as manifestly ill-founded a complaint under Article 14 about a considerably lower residence permit fee for expatriate Bulgarians as compared to fees charged ordinary aliens in Bulgaria.
GR1 (Government): Now, does the measure at issue in today's case disadvantage other groups, such as other Danish nationals, whether younger than 28 years or persons having become Danish nationals later in life, as compared to the status quo ex ante?
GR1 (Government): No one would be better off if the exception rule had not been in place in 2004 or were to be repealed as a result of this case, neither Mr. and Mrs.
GR1 (Government): Biao nor other persons in similar situations in the future.
GR1 (Government): Mr. President, let me briefly comment
GR1 (Government): on the issue of Article 5, paragraph 2 of the European Convention on Nationality.
GR1 (Government): We agree with the Danish Supreme Court and the majority of the chamber that the provision has no importance for the interpretation of Article 14 of the convention in the present case.
GR1 (Government): I refer to paragraph 95 of the chamber judgment.
GR1 (Government): We have set out our arguments and interpretation in our written observations.
GR1 (Government): Even if there might be conceivable competing interpretations of this convention's Article 5, paragraph 2, we fail to see how a non-binding, somewhat ambiguous provision in an instrument ratified by only 20 members of the Council of Europe could inform the interpretation of Article 14 in a judgment which will set an important precedent with de facto effect for all contracting parties on matters relating to immigration law.
GR1 (Government): Mr. President, before I end the first part
GR1 (Government): of my oral submission, let me briefly address the issue of proportionality in the specific circumstances of the applicant's case.
GR1 (Government): The Danish Supreme Court found that the consequences of the 28-year exception rule could not be considered disproportionate relative to the first applicant, Mr. Biao.
GR1 (Government): He was born in Togo in 1971, came to Denmark in 1993.
GR1 (Government): After nine years of residence, he became a Danish national in 2002.
GR1 (Government): In 2003, he married the second applicant, Mrs. Biao,
GR1 (Government): and they then submitted an application for spousal reunification in Denmark.
GR1 (Government): The application was refused by final administrative decision in 2004.
GR1 (Government): At this point, Mr. Biao had been a Danish national
GR1 (Government): for less than two years.
GR1 (Government): The approximately 10 years that Mr. Biao spent in Denmark
GR1 (Government): prior to the refusal of family reunification did not confer on him a special link to Denmark comparable to the special link held by a person falling within the 28-year exception rule.
GR1 (Government): Mr. President, I will now turn to the second part
GR1 (Government): of my submission on the written questions of the court.
GR1 (Government): First, the court has asked whether it would be correct to assume that if Mr. Biao had remained
GR1 (Government): in Denmark and the applicants had reapplied for family reunification, they would have had prospects of success in fulfilling the attachment requirement in 2005.
GR1 (Government): In short, the answer to this question is, yes, that is correct to assume.
GR1 (Government): Spousal reunification is generally subject to an attachment requirement, meaning that the party's aggregate ties with Denmark must be stronger than their aggregate ties with another country.
GR1 (Government): A resident spouse who has made efforts to become integrated in Danish society will normally be able to fulfill the attachment requirement at the latest after about 12 years of residence in Denmark.
GR1 (Government): This is the case regardless of whether the resident spouse has become a Danish national, as long as the foreign spouse has paid a visit to Denmark, even a short one.
GR1 (Government): Mr. Biao came to Denmark in 1993.
GR1 (Government): And in 1996, he was issued with a residence permit for Denmark on the basis of his marriage with a Danish national.
GR1 (Government): And in 1997, he was granted a permanent residence permit.
GR1 (Government): In April 2002, he became a Danish national.
GR1 (Government): And from 1997 until 2005, Mr. Biao
GR1 (Government): held different jobs and completed different courses.
GR1 (Government): In 2003, Mrs. Biao entered Denmark on a tourist visa.
GR1 (Government): In 2005, thus, Mr. Biao would, if he had stayed in Denmark,
GR1 (Government): have enjoyed 12 years of residence in Denmark and would indeed have had prospects of success in fulfilling the attachment requirement if, at that point, he had reapplied for family reunification.
GR1 (Government): In this regard, I would like to emphasize that Mr. Biao was
GR1 (Government): explicitly informed about the 12 years of residence practice in the final administrative decision of August 2004.
GR1 (Government): As we know, the applicants moved to Sweden in 2003.
GR1 (Government): And they have not submitted a new application for family reunification in Denmark since the initial application was rejected in 2004.
GR1 (Government): They could have done so also after the move to Sweden.
GR1 (Government): Mr. President, the second written question of the court
GR1 (Government): relates to a decision by the EU Court of Justice from July 2008 in the so-called Mittok case and whether it would be correct to assume that in the light of this decision, the applicants and their child would have had prospects of success in applying from Sweden for a residence permit in Denmark.
GR1 (Government): In short, yes, that would be correct to assume.
GR1 (Government): The question of the court seemed related to the third-party comments submitted by the Ayer Center on 6 February 2015.
GR1 (Government): The Ayer Center states that the court, in examining the proportionality of the 28-year exception rule, should take into consideration that the EU Court of Justice, in its ruling in the Mittok case, has held, quote, from the Ayer intervention, that it is not permissible to require the third country national family member of an EU citizen exercising treaty rights to leave the country and return to his or her country of origin in order to regularize his or her status.
GR1 (Government): The government respectfully submits that this is not a correct account or interpretation of the Mittok ruling or EU law as it stands.
GR1 (Government): Allow me, therefore, to dwell on this point of EU law for a moment and in some detail.
GR1 (Government): The Mittok ruling establishes that the EU free movement directive only provides a right of residence for third country nationals who are family members of a union citizen, where that citizen has exercised his or her right of free movement by becoming established in a host member state.
GR1 (Government): According to the ruling, it is furthermore a requirement that the third country family members accompany or join the union citizen in the host member state.
GR1 (Government): The EU Court of Justice recently confirmed this in its grand chamber ruling in case C-456-12, O and B, from March 2014.
GR1 (Government): In accordance with this case law, a third country family member of a Danish national who has exercised his or her right of freedom of movement by becoming established in a host EU member state can enjoy a derived right of residence on the Danish national's return to Denmark, provided that the third country family member was joining or accompanying him or her in the host EU member state.
GR1 (Government): The EU Court of Justice made clear in the recent O and B case that the provisions of the EU free movement directive should be applied by analogy in such a situation.
GR1 (Government): The EU Court emphasized in paragraph 54 of the decision that on the condition that family life is created or strengthened during the genuine residence of an EU citizen in a host EU member state, other than that of his or her nationality, the effectiveness of the rights conferred on the EU citizen by the EU treaties requires that the family life can be continued in the home member state.
GR1 (Government): Based on the information available, Mr. Biao has established himself in Sweden with his family
GR1 (Government): and has thus exercised his EU right of free movement.
GR1 (Government): If Mr. Biao were to return to Denmark with his family,
GR1 (Government): he would be able to continue the family life he has led in Sweden through the grant of a derived right of residence under EU law to the family members concerned.
GR1 (Government): But let me emphasize, an EU citizen cannot benefit from the EU treaties or the EU free movement directive unless he moves to another EU member state.
GR1 (Government): Therefore, EU law cannot have any impact on the proportionality assessment under the European Convention of Human Rights in the applicant's case before the court, which regards the situation as it presented itself back in 2004.
GR1 (Government): I hope I have answered both written questions to the satisfaction of the court, and I now reach my conclusion, Mr. President, in which I would like to stress three points
GR1 (Government): which the Danish government finds particularly important.
GR1 (Government): One, the Abdulaziz President from 1985, including on the points related to the case of Mrs. Balkandali,
GR1 (Government): is still good law, and the reasoning and the holding of the case should be applied to the similar facts and domestic legislation of the present case, like the Supreme Court of Denmark did in its judgment from 2010.
GR1 (Government): Two, the 28-year rule is not a requirement or condition for Danish nationals to be able to enjoy family life in Denmark with a foreign national spouse.
GR1 (Government): It is an exception to the attachment requirement, and it is aimed at helping in a non-discriminatory way a group of disadvantaged Danish nationals, expatriate Danes who are deemed in general to have long and lasting ties with Denmark.
GR1 (Government): Three, the fact that Mr. Biao was not exempted from the
GR1 (Government): attachment requirement based on a period of less than two years of Danish citizenship cannot in any case be considered disproportionate relative to the aim of the 28-year rule.
GR1 (Government): At the time of the final administrative decision in 2004, the applicants were probably just a year away from satisfying the attachment requirement based on what would have been approximately 12 years of residence by Mr. Biao in Denmark.
GR1 (Government): The introduction in 2003 of the 28-year rule did not make the situation of the couple more difficult, and repealing the exception as a result of this case will not help anyone.
GR1 (Government): On this basis, Your Honours, the Court respectfully requests the Court to find that there has been no violation of Article 8 or Article 14 in conjunction with Article 8 of the Convention.
Dean Spielmann (JudgeP): Judge Kjølbro.
Jon Fridrik Kjølbro (Judge): The first one is addressed to the representative of the applicant, and the other two questions are addressed to the government.
Jon Fridrik Kjølbro (Judge): The first question addressed to the representative of the applicants is, in fact, the repetition of a question already raised by the court in writing, but in my view, not sufficiently answered.
Jon Fridrik Kjølbro (Judge): Why did the applicants never lodge a request for family reunification after the final administrative decision in 2004, as they were entitled to, according to domestic legislation, either invoking the Aliens Act or the relevant applicable EU legislation?
Jon Fridrik Kjølbro (Judge): Is the explanation that in the assessment of the applicants, it was in any event bound to fail?
Jon Fridrik Kjølbro (Judge): Or in the alternative, is the explanation that for personal reasons, the applicants no longer were interested in family reunification in Denmark?
Jon Fridrik Kjølbro (Judge): My second question is addressed to the government.
Jon Fridrik Kjølbro (Judge): It concerns access to relevant information about administrative practice.
Jon Fridrik Kjølbro (Judge): The government relies on administrative practice as it is described in the memorandum of 1 December 2005, replacing an earlier memorandum of 29 September 2003.
Jon Fridrik Kjølbro (Judge): The applicants, however, argue that information on the application of the attachment requirement were not at all accessible.
Jon Fridrik Kjølbro (Judge): And they are invoking that they did not have access to information about this 12-year practice.
Jon Fridrik Kjølbro (Judge): And they also refer to criticism voiced by the parliamentary ombudsman, albeit it concerns other provisions.
Jon Fridrik Kjølbro (Judge): And therefore, my question is, how is information on administrative practice made public to persons affected by the legislation and to lawyers assisting such applicants?
Jon Fridrik Kjølbro (Judge): Have the two memorandums been published?
Jon Fridrik Kjølbro (Judge): Are they, for example, made available on the website of the relevant authority?
Jon Fridrik Kjølbro (Judge): My third question is somewhat hypothetical.
Jon Fridrik Kjølbro (Judge): And therefore, I do accept if it's not possible to answer the question.
Jon Fridrik Kjølbro (Judge): But nevertheless, I'll try.
Jon Fridrik Kjølbro (Judge): In case the court were to find that a 28-year rule, and thus the exception to the generally applicable attachment requirement, amounted to discrimination in violation of Article 14 read in conjunction with Article 8, what would be the likely consequences of such a judgment?
Jon Fridrik Kjølbro (Judge): If I listened attentively, seemingly it has already been hinted, at least when the government agent said if it were to be repealed as a consequence of this case.
Jon Fridrik Kjølbro (Judge): But nevertheless, I would like to, if it is possible, to give at least some kind of assessment of what would be the likely consequence of a ruling against the government.
Dean Spielmann (JudgeP): Thank you very much, Judge Paulo Pinto de Albuquerque.
Paulo Pinto de Albuquerque (Judge): Of course, the applicant may also take the opportunity to express his views on this point.
Paulo Pinto de Albuquerque (Judge): Now, the government has said repeatedly in various international fora that one of the purposes or one of the reasons why this legislation was enacted was the fact that, and I'm quoting from a reply that the government gave to the Committee on the Elimination of All Forms of Racial Discrimination, but this quotation may be found in many other places, that among foreigners and Danish nationals of foreign extraction who live in Denmark, there is a widespread tendency to marry a person from one's own country of origin, among other reasons due to parental pressure, end of quote.
Paulo Pinto de Albuquerque (Judge): My question is, is this still today the position of the Danish government that this is the reason why this measure was taken?
Paulo Pinto de Albuquerque (Judge): And if not, why does the Danish government keep an annual statistical report concerning foreigners published by the Ministry of Refugee, Immigration, and Integration Affairs with the purpose of assessing the marriage patterns among immigrants and descendants from non-Western countries?
Dean Spielmann (JudgeP): Thank you, Judge Motoc.
Iulia Antoanella Motoc (Judge): Ma première question concerne, s'adresse au gouvernement, et ma première question concerne comment est-ce que le gouvernement danois réagit par rapport aux critiques qui ont été formulées à l'égard de cette loi par les instances du Conseil de l'Europe, ça veut dire le commissariat des droits de l'homme, aussi par le Haut commissariat pour les réfugiés et aussi par les organes des traités où on avait cité ici tout à l'heure le comité pour l'élimination de toute forme de discrimination.
Iulia Antoanella Motoc (Judge): On a aussi des autres comités des Nations unies, le comité pour l'élimination des droits de la femme.
Iulia Antoanella Motoc (Judge): Et bon, ça veut dire que la plus grande totalité de ces comités qui ont dû analyser cette loi ont formulé à juste titre des fortes critiques par rapport à cette loi.
Iulia Antoanella Motoc (Judge): Quelle était la réaction de votre gouvernement par rapport à ces critiques qui ont été formulées et comment est-ce que vous avez jugé de les mettre en place?
Iulia Antoanella Motoc (Judge): Ma deuxième question est d'une certaine manière liée à la question qui a été posée par mon collègue tout à l'heure.
Iulia Antoanella Motoc (Judge): Et il s'agit d'une partie de notre jugement même, du jugement d'Abdulaziz, que les deux parties ont cité, qui, ce jugement, fait des références à cette pratique de mariage traditionnel entre les personnes qui viennent des autres continents que l'Europe.
Iulia Antoanella Motoc (Judge): Et le jugement aussi fait référence à la possibilité d'avoir des mariages blancs pour justifier leur...
Iulia Antoanella Motoc (Judge): leur effus d'accepter ce type de mariage.
Iulia Antoanella Motoc (Judge): Donc, quelle est votre position par rapport à cette sorte d'affirmation aujourd'hui?
Iulia Antoanella Motoc (Judge): Cela veut dire que 30 ans après ce jugement d'Abdulaziz.
Dean Spielmann (JudgeP): The court will now... sorry, Judge Turković, please.
Ksenija Turković (Judge): Just when you are responding to the question of Judge Kjølbro, I would just like to clarify, if you could clarify two points.
Ksenija Turković (Judge): The applicant is living in Sweden, but he's working in Denmark.
Ksenija Turković (Judge): So for the purposes of the 12 years rule, whether he would be considered living in Sweden or in Denmark, and for the purposes of free movement, whether he would be considered free moving since he's still working in Denmark.
Dean Spielmann (JudgeP): Thank you. No other questions.
Dean Spielmann (JudgeP): And the court will now rise for 20 minutes, following which the parties will return for a second round of short pleadings to respond to the submissions in the first round and to the judges' questions.
AP1 (Applicant): Mr. President, Distinguished Member of the Court,
AP1 (Applicant): I shall address the question from the Danish judge, Mr. John Kjellboe.
AP1 (Applicant): I want to go a bit back because, as opposed to what the government has claimed, the family did not voluntarily move to Sweden when they got the refusal in November 2003.
AP1 (Applicant): From the moment they got the refusal, Mrs. Bjau was no longer allowed to stay in Denmark
AP1 (Applicant): or to work in Denmark.
AP1 (Applicant): So they were forced to move there.
AP1 (Applicant): And now I heard my colleague say that, at the refusal, they were explicitly advised about this so-called 12-year rule mentioned by you.
AP1 (Applicant): And so if that's not correct, I refer to the file, the High Court's judgment.
AP1 (Applicant): And on page 9 on this, there is a long, long list.
AP1 (Applicant): In fact, a note, a memo.