TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Among a lot of international critiques, the Swedish government, the Danish rules have also been attacked by the United States and Thai Commission for Refugees and the Council of Europe Human Rights Commissioner.
AP1 (Applicant): One thing is crucial in this thing.
AP1 (Applicant): The Act 1204 of 27th of June 2003, which amended the 28-year rule as of 1st of January, it lacks for a special group of Danish natives this attachment requirement.
AP1 (Applicant): The reason, well, we can't see any proof or evidence, but if you look in the preparatory work, you can see that one assumed that the Danish living abroad, say in Brazil, in Ghana, in Togo, in China, in Taiwan, et cetera, he probably spoke Danish with his foreign wife.
AP1 (Applicant): He probably read Danish books, saw Danish television, and everything else.
AP1 (Applicant): So I ask this court, why was Mr. Biaudjustment not given the
AP1 (Applicant): same opportunity?
AP1 (Applicant): Mr. Biaudjustment fulfilled the Danish conditions to be a
AP1 (Applicant): Danish citizen.
AP1 (Applicant): I refer to the file, circular number 90 of 6th of June, 1999, very tough rules, after residing in Denmark for nine years.
AP1 (Applicant): Why wasn't he given the same opportunity if a Dane with Danish extraction was assumed to speak and talk and read English with his foreign spouse and then return in his third age with the foreign spouse without fulfilling the attachment requirement?
AP1 (Applicant): We can see nothing about that.
AP1 (Applicant): It is assumed that that's what you do.
AP1 (Applicant): I refer to the file where I produced a resume of the website Danish Worldwide.
AP1 (Applicant): The court can see in this that there's about 250,000 Danish abroad.
AP1 (Applicant): And you can see from the file, too, that they are very keen on commenting on the 28 years rule.
AP1 (Applicant): And the reason why the rule was amended was, in fact, by enormous political pressure from this group and others abroad to the Danish Minister of Refugees, Mr. Bertel Horda.
AP1 (Applicant): The applicants do not have the same possibilities to make such a pressure.
AP1 (Applicant): I think also it's important to emphasize that before 1st of January, 2004, before the introduction of the 28 years rule, there was no possibility for discriminating between Danish citizens.
AP1 (Applicant): The attachment requirement as before 1st of January would apply to all Danish nationals, whether or not the date was a foreign extraction.
AP1 (Applicant): So the trouble and why we are standing here today is you exempt a special group.
AP1 (Applicant): And I think even if you exempt a special group because you say you assume they have long and strong ties to Denmark, it has not been proven.
AP1 (Applicant): We have no statistics.
AP1 (Applicant): We have no answers to how many Danish people of Danish extraction benefited from this rule and how many people, Danish citizens of foreign extraction, benefited from this rule.
AP1 (Applicant): We don't know.
AP1 (Applicant): The contemporary European standards and the US prudence of this court is extremely concerned about indirect discrimination based on the ground of race and or ethnic origin.
AP1 (Applicant): See the judgment last year, paragraph 23.
AP1 (Applicant): However, the three dissenting judges did not claim that the 28 year rule resulted in the kind of racist or ethnic discrimination that we saw in Abdullah's case.
AP1 (Applicant): I urge the court not to turn the blind eye to the obvious discriminatory character of the 28 year rule of Danish alien legislation, thus applied would not contribute to implementing justice under the convention.
AP1 (Applicant): I refer to the dissenting opinion, paragraph 24.
AP1 (Applicant): I think that the convention was not meant to deprive the applicants and their soon 11 year old son the right to pursue happiness.
AP1 (Applicant): The dissenting opinion, paragraph 33.
AP1 (Applicant): One can see from the protocol 12 to the convention that out of 47 member states, 18 states have ratified as per 2011, this protocol.
AP1 (Applicant): It may indicate a new and growing consensus in Europe concerning a general prohibition on discrimination.
AP1 (Applicant): The European Commission against Racism and Intolerance recommended in its monitoring report on Denmark, 22nd of May 2012, that the 28 year rule risk disproportionately affecting non-ethnic Danes.
AP1 (Applicant): And the committee urged the Danish authorities to carry out a wide ranging reform of the spousal reunification rules in order to remove any elements which amount to direct or indirect discrimination and or which are disproportionate to their stated aim, they say.
AP1 (Applicant): This was not the first time they said it, because on page 36 in the same report, you can see in a survey report from 2006, they urged the Danish authorities not to adopt laws which in effect indirectly discriminate against minority groups.
AP1 (Applicant): And I think that's a case for the applicants.
AP1 (Applicant): They are from Africa, from non-Western countries.
AP1 (Applicant): And even if Mr. Biau has fulfilled all requirements to
AP1 (Applicant): being a Danish citizen, and he should be equal with all other Danes, he is treated differently.
AP1 (Applicant): How should he integrate his wife?
AP1 (Applicant): They are living in Sweden.
AP1 (Applicant): They were forced to move to Sweden when the refusal came in 2003.
AP1 (Applicant): But from that moment, Mrs. Biau was not allowed to stay or work
AP1 (Applicant): in Denmark.
AP1 (Applicant): She is staying and working in Denmark every day, pays his tax, security and everything.
AP1 (Applicant): But how should he integrate his wife when he's staying in Denmark, traveling between Malmö and Copenhagen every day?
AP1 (Applicant): And compared to the Danish native expatriate abroad, he's supposed to talk and walk Danish, read and everything.
AP1 (Applicant): And then he can return when he wants in his third age without fulfilling the requirement.
AP1 (Applicant): This is, in practice, a very severe effect.
AP1 (Applicant): And I think it's not justifiable.
AP1 (Applicant): It is not proportionate.
AP1 (Applicant): And I think that the Alien Act has another unintended consequence apart from the 28-year rule.
AP1 (Applicant): And that is the case we're standing with here today.
AP1 (Applicant): Family reunion is a very important aspect of family life in the context of one's citizenship.
AP1 (Applicant): I refer to the judgment of Biau, paragraph 7.
AP1 (Applicant): So the applicants dispute the steps this court took last year to dismiss their claim on indirect ethnic discrimination.
AP1 (Applicant): It's very unclear how the court, without saying explicitly, come to the conclusion that this is a case of direct difference in treatment, the discrimination being other status, namely links of citizenship.
AP1 (Applicant): The reasoning is hardly motivated and thus difficult to follow.
AP1 (Applicant): See paragraph 90 of the court's judgment.
AP1 (Applicant): The court's mentioning of the Abdulaziz case is not sufficient to describe what is racial discrimination and what is not.
AP1 (Applicant): And that's exactly one of the points where Abdulaziz is outdated.
AP1 (Applicant): The 30-year-old Abdulaziz judgment provides no guidance anymore what should count as racial discrimination.
AP1 (Applicant): Therefore, it's very disturbing in a general context that both the majority in the Danish Supreme Court and the majority last year pay so much attention to this interpretation.
AP1 (Applicant): And I think it's not an interpretation.
AP1 (Applicant): You can call a convention a living instrument which has to be interpreted in the present day conditions.
AP1 (Applicant): Furthermore, I think that the result last year goes against the purpose of the conventions, Article 1, and the contemporary jurisprudence of this court.
AP1 (Applicant): The court must never lose sight of the general context.
AP1 (Applicant): Never.
AP1 (Applicant): So now is the time for a more authoritative and clarifying judgment in the grand chamber.
AP1 (Applicant): The court has, for the first time, in the Nakova versus Bulgaria 2004, held a state accountable for racial discrimination in a chamber judgment.
AP1 (Applicant): So the majority in this court's judgment, as well as the 10 national Danish judges in the applicant's opinion, failed to apply indirect discrimination principles in the applicant's case and failed to recognize the context of the treatment which reinforced negative stereotypes regarding integration.
AP1 (Applicant): They should have applied the principles in the court's judgment of DH versus Czech Republic as such.
AP1 (Applicant): In this judgment, DH, paragraph 175, the court states, a general policy or measure that has disproportionately critical effects on a particular group may be considered discriminatory notwithstanding that it's not specifically aimed at that group.
AP1 (Applicant): And that discrimination, potentially contrary to the convention, may result from a de facto situation.
AP1 (Applicant): Further, the court states, indeed, in certain circumstances, a failure to attempt to correct inequality through different treatment may, in itself, give rise to a breach of the article.
AP1 (Applicant): I think that is very important.
AP1 (Applicant): In this case, we know that the Danish government intended to single out, as per 1st of January 2004, Danish expatriates like a class of first citizens, resulting in that the applicants, in fact, became a class of second class.
AP1 (Applicant): In this respect, I could refer to the old case, East African Asians versus United Kingdom from ages three, where you had the same problem.
AP1 (Applicant): The arguments for exempting the first class Danish expats is not very convincing.
AP1 (Applicant): The proof is missing.
AP1 (Applicant): And I think that the government has not provided any objective justification for this disparate, disadvantageous treatment of a minor group of Danish citizens, naturalized citizens, the applicants.
AP1 (Applicant): There should have been far more weighty reasons, especially given the rather narrow margin of appreciation states have in family reunion matters.
AP1 (Applicant): I refer to the Biao case dissenting opinion, paragraphs 15 and 33.
AP1 (Applicant): The majority last year surprisingly agreed with the European Commission for Human Rights, saying that this exemption places undue restrictions on naturalized Danish citizens and places them in a considerable disadvantageous in comparison to Danish native citizens.
AP1 (Applicant): And that's a bit surprising last year, because you see in the majority that you go a bit of the way.
AP1 (Applicant): You conclude that it's not for the court to evaluate the legislation in abstracto, but you criticize this rule as excessively strict.
AP1 (Applicant): You state that the applicants are placed in a significant poor situation.
AP1 (Applicant): And you go the third step and say, well, in fact, it's almost illusory.
AP1 (Applicant): How can we imagine to get a family reunion in Denmark if you are a third country wife coming from non-African countries?
AP1 (Applicant): So I think the court has taken some steps.
AP1 (Applicant): But then they, of course, stop up and say, well, we can't go further, but why then raise the critique in the majority?
AP1 (Applicant): I ask the court to look into that, too.
AP1 (Applicant): I dispute the government's arguments in the written statement of 15 of January, especially the pages 7 to 8, 12, 13 to 14, and 16, as to the possibilities for the applicants to obtain family reunion earlier than 28 years.
AP1 (Applicant): There's no proof of that.
AP1 (Applicant): And I think I've had the case since the high court in Denmark in 2007.
AP1 (Applicant): And this is the first time I hear about that in the arguments.
AP1 (Applicant): The arguments we hear for this court, I think, they haven't been argued in the court cases in the high court and the Danish Supreme Court.
AP1 (Applicant): And where is the proof?
AP1 (Applicant): Another aspect, they say, well, if you have been in Denmark for about 12 years, you normally could reunite successfully or at an earlier stage.
Dean Spielmann (JudgeP): Mr. Petersen, may I ask you to conclude?
AP1 (Applicant): Yes, of course, I was just doing that.
AP1 (Applicant): My concluding remarks is that, as I started out with the headlines I started with, that there is a violation of Article 14, taken in conjunction with Article 8, and the Convention on Nationality.
AP1 (Applicant): There's no justifiable reasons for treating a naturalized Danish citizens the way we have seen in this case.
AP1 (Applicant): And I also think that the Alien Act, well, indirectly have some racial or ethnic motives, because all that are hampered or barred from having family reunion is, of course, the people from non-Western countries.
AP1 (Applicant): So I ask this court to look very thoroughly into the appearance of this Alien Act, because the applicants is a particular one in a situation.
AP1 (Applicant): They are still facing the risk of remaining in Sweden as a divided family, or risk another refusal of family reunion.
AP1 (Applicant): And in fact, at latest in 2030, perhaps after 28 years, they have perhaps a success, a possibility to get family reunion.
AP1 (Applicant): I think that is not worthy in a member state of Europe.
AP1 (Applicant): So this case is about substance, not form.
Dean Spielmann (JudgeP): Thank you very much, Mr. Petersen.
Dean Spielmann (JudgeP): I Call Mr. Bering Liisberg.
GR1 (Government): it's an honor to appear before you on behalf of the Danish government.
GR1 (Government): A rare honor, I might add.
GR1 (Government): It has been almost 10 years since the government of Denmark last time appeared before the court at a hearing.
GR1 (Government): In the case before you today, your honors, let me underline from the outset that the Danish legislature, the Danish government, as well as the Danish courts, including the Supreme Court, have all been extremely diligent in assessing both the legislative measure in the abstract and the specific circumstances of the applicant's case from the perspective of the European Convention on Human Rights.
GR1 (Government): And they have done so on the basis of the case law of the court, more specifically the seminal decision from 1985 by the plenary in the Abdulaziz, Cabales, and Balkandali case.
GR1 (Government): The Supreme Court of Denmark relied on this important president and wrote a very precise analysis of why both the facts of the case of Mrs. Balkandali
GR1 (Government): and the domestic immigration legislation of the UK were similar to the case before it in Denmark, not only in the abstract, but also in the concrete circumstances of Mr. and Mrs. Bial.
GR1 (Government): Like the majority of the Danish Supreme Court, we believe the relevant parts of the Abdulaziz decision are still good law and are applicable in the case before you.
GR1 (Government): If the court should disagree contrary to what we expect, we respectfully encourage the court to explicitly state so in its decision and explain why present day conditions require the court to revise its own case law on this point.
GR1 (Government): Immigration control measures and conditions for spousal reunification with third country nationals vary a lot from country to country within Europe, even within the European Union, depending on national circumstances, tradition, and political choice.
GR1 (Government): In the 30 years since the Abdulaziz decision, national rules and standards on immigration from third countries, including through spousal reunification with third country nationals, have hardly, on average, become less strict, less selective, or less competitive in European countries.
GR1 (Government): We don't see any evolving standards, or as the applicants' counsel referred to, emerging consensus in the direction of a more relaxed, more liberal, or immigration-friendly policies across Europe.
GR1 (Government): On the contrary, we submit, at least on average, a revision of the Abdulaziz decision, the president would, in our opinion, not be warranted by present day conditions.
GR1 (Government): And it would involve a significant and undesirable curtailment of the margin of appreciation in immigration and citizenship matters of the contracting parties.
GR1 (Government): Mr. President, the government has set out its position in law
GR1 (Government): in detail in its written observation of 15 January 2015.
GR1 (Government): I shall not repeat our comprehensive line of argumentation here.
GR1 (Government): My oral submission will fall in two parts.
GR1 (Government): Firstly, I will try to explain in a nutshell why the government, like the majorities of the Supreme Court and the chamber of this court, believes there has been no violation of Article 14 in conjunction with Article 8 of the convention.
GR1 (Government): Secondly, I will address the two questions on the facts of the case and domestic law put forward by the court in their letter to the government of 6 March 2015.
GR1 (Government): Before moving on to the first part of my oral submission, allow me briefly to draw attention of the court to a section of our written observations where we comment on elements of the chamber judgment of 25 March 14.
GR1 (Government): I refer to section 3.2 on pages 13 to 16 in our observations.
GR1 (Government): Here, the government tries to clarify some points on the relevant Danish rules in light of apparent misunderstandings, both in the majority and the minority opinions of the chamber judgment.
GR1 (Government): The misunderstandings relate to the practical consequences of the attachment requirement and the 28-year exception rule.
GR1 (Government): As a footnote, I would remark that this case is about the 28-year exception rule.
GR1 (Government): It is not about the attachment requirement, as some of the comments made by my colleague just now seem to assume.
GR1 (Government): In our written submissions, we explain why the 28-year exception rule introduced in 2003 did not and does not restrict the possibility for naturalized Danes, such as Mr. Biao,
GR1 (Government): to obtain spousal reunification with a foreign national spouse, such as Mrs. Biao.
GR1 (Government): The rule is an exception, not a requirement or a condition.
GR1 (Government): A naturalized Dane is not required to have been a Danish national for 28 years in order to obtain spousal reunification in Denmark, contrary to what especially the dissenting minority of the chamber seems to assume.
GR1 (Government): Mr. President, I now turn to the first part of my submission,
GR1 (Government): the law and the question of whether there's been a violation of the European Convention on Human Rights.
GR1 (Government): I will not devote time to the question of the alleged violation of Article 8 of the Convention, which the chamber was unanimous in rejecting.
GR1 (Government): Instead, I focus on the issue of the alleged violation of Article 14 in conjunction with Article 8 of the Convention.
GR1 (Government): To begin with, allow me to address the question of whether a review in abstracto by the court of relevant Danish legislation is warranted.
GR1 (Government): The government agrees with the observations in paragraph 103 of the chamber judgment and in paragraph 3 of the concurring opinion of judges Raimondi and Spano.
GR1 (Government): In these paragraphs, the majority of the chamber emphasize, with reference to relevant case law, that where national legislation is an issue, it is not the task of the court to review the relevant legislation in the abstract.
GR1 (Government): Instead, it must confine itself, as far as possible, to examining the issues raised by the case before it.
GR1 (Government): This principle seems indeed relevant in the present case, also keeping in mind that the Supreme Court of Denmark has, in fact, explicitly carried out a review of the domestic legislation, not only in its application to Mr. and Mrs. Biao,
GR1 (Government): but also in the abstract held up against the convention and the case law of the court.
GR1 (Government): If the court, contrary to what we expect and contrary to the approach of the majority of the chamber, chooses to engage in a review in abstracto, we respectfully submit that the reasoning of the Danish Supreme Court is compelling and that its conclusion should be upheld.
GR1 (Government): At this point, I will only add one additional element to the Supreme Court's analysis.
GR1 (Government): It relates to the relevance of the Abdulaziz decision with respect to Mrs. Balkandali.
GR1 (Government): As the court will recall, Mrs. Balkandali
GR1 (Government): was a naturalized British national of Egyptian extraction seeking spousal reunion in the UK with her husband, a Turkish national, on the basis of British immigration rules enacted in 1980.
GR1 (Government): She complained that she did not benefit from a British immigration rule according to which a citizen of the United Kingdom and the colonies, quote, who or one whose parents had been born in the United Kingdom, end of quote, could more easily be granted a spousal reunion residence permit.
GR1 (Government): It's important to note that at the time in the UK and until 1983, rules on the acquisition of British citizenship were based primarily on the Lex Solei principle rather than the Lex Sanguinis principle.
GR1 (Government): That is, children born on United Kingdom soil became British nationals irrespective of the status and origin of the parents.
GR1 (Government): This is, we believe, relevant to understand why the UK 1980 immigration rules gave preferential treatment to UK citizens born in the UK and not to a naturalized UK citizen such as Mrs. Balkandali
GR1 (Government): born elsewhere.
GR1 (Government): The distinction based on the place of birth could, in the UK context at the time, just as well have been formulated as a distinction between naturalized citizens and citizens by birth.
GR1 (Government): Mr. President, I now turn to the application of Article 14
GR1 (Government): in conjunction with Article 8 to the specific facts of the matter before you.
GR1 (Government): There are basically, as we see it, two themes of disagreement between the applicants and the government.
GR1 (Government): One, the nature of and grounds for the difference of treatment.
GR1 (Government): And two, the legitimacy and proportionality of the 28-year exception rule as applied in the case of the applicants.
GR1 (Government): The two themes overlap to some extent, but I will try to address them one by one.
GR1 (Government): First, as to the nature of and grounds for the difference of treatment.
GR1 (Government): The government agrees that there has been a difference in treatment of persons in similar situations.
GR1 (Government): But we strongly disagree that this difference of treatment is based directly or indirectly on ethnic or racial grounds.
GR1 (Government): The difference in treatment follows from the fact that Mr. Biao, having been a Danish citizen for less than two
GR1 (Government): years, was not able in 2004 to benefit from the special 28-year exception rule introduced for the benefit of nationals with particularly long and lasting ties to Denmark.
GR1 (Government): He was thus treated differently on the ground of the length of his period of Danish nationality.
GR1 (Government): And in this sense, he enjoyed other status in the words of Article 14.
GR1 (Government): The government disputes the applicant's allegation that they have been subjected to an indirect difference in treatment relative to other persons in analogous or relevantly similar situations in the terminology of the court based on the ground of the first applicant's non-Danish ethnic origin.
GR1 (Government): The applicants have submitted that persons born in Denmark as Danish nationals will, in general, benefit more from the 28-year exception rule than persons acquiring Danish nationality later in life.
GR1 (Government): The applicants have also stated that the vast majority of persons born in Denmark as Danish nationals would be of Danish ethnic origin, while persons acquiring Danish nationality later in life would generally be of other ethnic origin.