TrustHLT/LaCour huggingface dataset:
GR1 (Government): This is also further elaborated in our memorial in pages 27 to 29.
GR1 (Government): At the same time, it's important to note that a number of European countries have introduced various restrictions on the access to family reunification for refugees who are not covered by the 1951 Convention.
GR1 (Government): And let me give you a few examples.
GR1 (Government): In Sweden, a new temporary statute entered into force in July 2016, which suspended the right to family reunification for subsidiary protection beneficiaries for a period of three years altogether.
GR1 (Government): The statute applies to those who have applied for asylum after 24 November 2015 and remained in force until July 2019.
GR1 (Government): In June 19, the suspension was extended until July 21, so it entails altogether a period of five years.
GR1 (Government): In Germany, the right to family reunification for persons granted subsidiary protection was postponed by two years in March 2016.
GR1 (Government): As of 1 August 2018, the two-year waiting period was replaced by new legislation under which family reunification to beneficiaries of subsidiary protection was made possible again, albeit with a quantitative limitation to a quota of up to 1,000 persons per month.
GR1 (Government): The authorities will decide on humanitarian grounds whom to grant a residence permit.
GR1 (Government): In Switzerland, individuals with a status similar to subsidiary protection are subject to a waiting period of three years as from recognition to reunification.
GR1 (Government): Besides the countries that I have mentioned, also Austria, Latvia, Finland, Czech Republic, Hungary, Slovakia, Cyprus, Malta and Greece have introduced restrictions on the access to family reunification or other distinctions for refugees not covered by the 51 Convention.
GR1 (Government): And again, I refer you to our memorial.
GR1 (Government): So a number of countries have introduced legislation granting different family reunification rights to refugees under the 51 Convention and to beneficiaries of subsidiary protection.
GR1 (Government): In all of these countries, this has been considered a necessary response to the overwhelming increase in the number of asylum seekers from 2012 and onwards.
GR1 (Government): let me now focus on the specific case.
GR1 (Government): In June 15, the applicant, at that time 55 years old, was found entitled to international protection due to the general situation in Syria at the time.
GR1 (Government): He was therefore granted temporary protection status.
GR1 (Government): The subsequent application for family reunification with his wife was rejected in July 16 with reference to the three-year postponement and also with reference to the fact that the authorities, after a careful individual examination, found no grounds for exempting the applicant from the three-year rule.
GR1 (Government): The government submits that a fair balance was struck when the authorities back in 2016 refused family reunification between the applicant and his wife.
GR1 (Government): The essence is that the nature of the applicant's stay in Denmark was uncertain and expected to be of a limited duration, as his protection need was the result of a general situation in his home country.
GR1 (Government): And the situation could change rather quickly.
GR1 (Government): Should an improvement in Syria occur within the three-year period, he would be able to return to his wife in Syria.
GR1 (Government): And if no improvements, he would be eligible for family reunification in Denmark after the three-year period.
GR1 (Government): Under these circumstances, the Danish society's interest in managing the immigration pressure and thereby securing the capacity to integrate the large number of newly arrived persons outweighed, in the opinion of the Danish authorities, the applicant's interest in family reunification.
GR1 (Government): Let me recall paragraph 22 of the government's memorial.
GR1 (Government): It states that in mid-2019, approximately three and a half years after the three-year waiting period came into force, the Danish Refugee Appeals Board found that the situation in the Damascus area in Syria had improved in such a way that a person originating from that area is no longer entitled to temporary protection, that is, by default.
GR1 (Government): It's correct that the applicant has stated in his subsequent letter to the court from 11 March this year that at the moment, there are no forced returns to Syria due to foreign policy reasons.
GR1 (Government): This is based on an analysis and a policy which we share with our close allies in Europe and the USA.
GR1 (Government): Among other things, Denmark, along with some of the most important allies, including France, Germany, and UK, maintains that countries should refrain from actions that may be interpreted as normalization relations with the Syrian regime.
GR1 (Government): In light of all the aspects just mentioned, it is the view of the Danish government that a fair balance was struck between competing interests and within the state's margin of appreciation in the applicant's case.
GR1 (Government): Consequently, the government of Denmark respectfully submits to the court that no violation of Article 8 of the Convention has taken place in the present case.
GR1 (Government): And now, finally, a few brief remarks on Article 14.
GR1 (Government): First of all, the government's opinion is that the alleged violation of Article 14 should be rejected for the very reason that the applicant is neither in an unlawful nor a relevantly similar situation to refugees under the 1951 Convention or beneficiaries of subsidiary protection due to personal grounds granted residence permits pursuant to Section 7, Paragraph 1, or Paragraph 2 of the Aliens Act.
GR1 (Government): As mentioned earlier, those granted temporary protection status under Section 7, Paragraph 3, have been found to face no individual persecution but have fled the general conditions in their country of origin.
GR1 (Government): As has already been said, the situation in the home country is volatile and may change rather quickly and become more peaceful.
GR1 (Government): In general, this group, therefore, is expected to have a different and more temporary need of protection than those subjected to individual persecution.
GR1 (Government): So for this reason, the government submits that the applicant was neither in an unlawful nor a relevantly similar situation with persons granted protection due to individual persecution.
GR1 (Government): Mr. President, should the Court conclude otherwise
GR1 (Government): and find a difference in treatment, it is the government's opinion that such a difference is not discriminatory as it has an objective and reasonable justification.
GR1 (Government): As mentioned before, the difference is based on the fact that the applicant is not individually perpetrated but has fled the general situation in the home country and that the general situation in the home country may change rather quickly.
GR1 (Government): As a consequence, the applicant's separation from his wife was likewise expected to be of a temporary duration.
GR1 (Government): The assumptions find some support in the fact that Syrians, like the applicant, are now beginning to return to Syria voluntarily.
GR1 (Government): As mentioned, the Danish Refugee Appeals Board has found that an improvement over a longer period in the Damascus area has taken place.
GR1 (Government): For instance, the UNHCR has reported that the numbers of voluntary repenise to Syria from the region have doubled from 16 to 18, and I refer the Court to paragraph 70 of our memorial.
GR1 (Government): The government submits that the postponement of the access to family reunification for three years pursues a legitimate aim of protecting the economic well-being of the Danish society, as it is a fact that an extraordinarily large number of new arrivals may significantly affect and challenge the successful integration and social cohesion in Denmark.
GR1 (Government): On this basis, the government of Denmark respectfully submits that the Court should find that there has been no violation of Article 14 in conjunction with Article 8 of the Convention of the present case.
GR1 (Government): Mr. President, in closing, I would just like to say
GR1 (Government): that at the end of 2015, the European migrant crisis was at its peak.
GR1 (Government): The tragic flow of new asylum seekers reaching European shores was relentless.
GR1 (Government): It showed no prospect of weakening.
GR1 (Government): At that time, Denmark was among the top five EU member states who received the largest number of asylum seekers per capita.
GR1 (Government): This is the backdrop against which the Danish legislature decided to postpone family reunification for beneficiaries of subsidiary protection, having fled the general situation in the home country, a situation foreseen to be of a more temporary nature than for those having fled to individual circumstances.
GR1 (Government): In the view of my government, this measure, which corresponds to similar measures in a number of other European countries, was justified under the Convention.
GR1 (Government): It was a necessary step to protect fundamental interests of the Danish society.
GR1 (Government): It was a carefully considered step, and it struck a fair balance between the competing interests and within states' margin of appreciation.
Robert Spano (JudgeP): Just to confirm, both your audio and video was clear throughout.
Robert Spano (JudgeP): I now turn to the applicant, Mr. Dahlager.
AP1 (Applicant): Thank you Mr. President, members of the court.
AP1 (Applicant): The applicant fled Syria in 2014.
AP1 (Applicant): Some months later, in January 2015, he had entered into Denmark and was granted protection in June based on the war and violence in Syria.
AP1 (Applicant): In November 2015, he and his wife applied for family reunification in Denmark.
AP1 (Applicant): This application was denied ten months later, in September 2016, by the Immigration Board with reference to the discussed three-year waiting periods here today.
AP1 (Applicant): That waiting period had come into force some three months after he applied.
AP1 (Applicant): Today the government's argument is that the Immigration Board's decision was necessary and justified in particular in light of the high number of refugees facing Europe in 2015.
AP1 (Applicant): I would like to say here at the outset that the applicant and myself of course appreciate the challenges that Denmark and other European countries, in particular Germany and Sweden, was facing in 2015, but I would also like to stress a few facts regarding the particular situation in Denmark.
AP1 (Applicant): The first, as also today indicated by the government, is that when the Immigration Board made its decision in September 2016, Denmark was not facing the same number of refugees that the government thought initially could justify the waiting period when it was adopted in February 2016.
AP1 (Applicant): Indeed, the number had fallen to a very manageable figure of about 300 asylum seekers in September, which was a number that is pretty close to what was the normal situation before the perceived refugee crisis in 2015.
AP1 (Applicant): In this connection, the Court will also recall that several other measures were put in place in 2015 on a national and international level to deal with the refugee matter.
AP1 (Applicant): By far, the most significant was that the European Council and Turkey already in November 2015 entered into an agreement to allocate refugees in Turkey.
AP1 (Applicant): As a matter of fact, very few Syrians have entered into the European Union after that agreement and that they are now placed primarily in Turkey and in Lebanon.
AP1 (Applicant): The second point is that the three-year waiting period came into force in the wake of the general election in Denmark in 2015.
AP1 (Applicant): During the election process, there was a very strong call from the majority to limit the rights of foreign nationals, especially the protection standards for refugees.
AP1 (Applicant): This was a concern for several European bodies dealing with human rights.
AP1 (Applicant): This is also explained in the submissions by the Commissioner on Human Rights and the UN Refugee Agency.
AP1 (Applicant): It came actually that far that written recommendations were made to the new government to revise the proposed restrictions and limitations, and a particular recommendation was made to the government to reduce the proposed three-year waiting period to conform with international law.
AP1 (Applicant): But not only was international bodies concerned, also the government in Denmark had its concern on whether the waiting period was legally consistent with Article 8 of the Convention.
AP1 (Applicant): Of course, it was a delicate matter, considering the political environment and the government's political base, and this also appears from the preparatory work, because this concern is phrased rather carefully in that preparatory work.
AP1 (Applicant): I will quote a relevant part from it.
AP1 (Applicant): What the government says is, there is a certain risk when reviewing a specific case that the European Court may decide that Denmark cannot generally make it a condition for family reunification that aliens have resided for three years in Denmark.
AP1 (Applicant): Nevertheless, the Act was adopted, and my point is that I believe it is important for the court to recall in this case that there has been a substantial influence when adopting the Act from political consideration.
AP1 (Applicant): The justification of that three-year waiting period has primarily been rooted in political consideration rather than a careful assessment of international law and a careful assessment of relevant facts.
AP1 (Applicant): I will revert to the significance of this later in my submission.
AP1 (Applicant): The final point regarding the facts is that the immigration authorities' processing time is in addition to the three-year waiting period.
AP1 (Applicant): The de facto separation is therefore considerable longer.
AP1 (Applicant): In the present matter, it meant that my client was separated from his wife for more than four and a half years.
AP1 (Applicant): I would also like to clarify a new point that came up in the government's submission, the latest submission in January 2020 this year, that the government is alleging that it took my client eight months to apply in the second round.
AP1 (Applicant): That is definitely not true.
AP1 (Applicant): He applied on April 26, 2015, and I have the application here in front of me if the government is still in doubt regarding this.
AP1 (Applicant): So turning to the legal issues, my submission is that the Immigration Board's decision was unjustified when considering the particular circumstances in my client's case.
AP1 (Applicant): Secondly, I submit that a three-year waiting period for some in need of protection and not applying for others in need of protection is at any rate excessive and a different treatment that violates Article 8 and Article 14 of the Convention on Human Rights.
AP1 (Applicant): Regarding this, the starting point should be that the court has stated in its rulings in Tanda-Muxinka v. France and in Tanda v. France that there is a consensus at international
AP1 (Applicant): and European level on the need for refugees to benefit from a unification procedure that is more favorable than for other aliens.
AP1 (Applicant): Precisely the same is expressed in the submissions by the UN Refugee Agency and the Commissioner on Human Rights to this court.
AP1 (Applicant): There are several reasons behind this overriding principle.
AP1 (Applicant): The first or the most important are two, actually.
AP1 (Applicant): The first is that family reunification in cases of refugees is a result of their flight and the second is that they are not able to resume family life in the home country because of the risk of serious ill-treatment in that country.
AP1 (Applicant): So the clear consensus, the firm consensus in international law is that the only way to resume family life is in the host country that has granted protection to the individual.
AP1 (Applicant): And I also think this was indicated by the government today.
AP1 (Applicant): It is a fact that this basic principle still is recognized under Danish law.
AP1 (Applicant): The waiting period is not intended to cause the right to family reunification or to cancel the right to family reunification.
AP1 (Applicant): What it does is it seeks to suspend reunification rights for a period of three years in a general manner for all individuals who are in need of general protection.
AP1 (Applicant): So the first trouble with this waiting period is that it does not leave the authorities sufficient room to consider the particular circumstances in each case.
AP1 (Applicant): This was exactly the same concern that the government had when the law was adopted.
AP1 (Applicant): And I would say rightfully so because it is a fundamental right also in Danish law that a thorough individual assessment of a matter must be afforded to the individual.
AP1 (Applicant): This court has also ruled on this in Kulcin versus Russia and has especially stated that it is an aggravating circumstance if national law does not make room for individual assessments.
AP1 (Applicant): In spite of these very clear red flags, no thorough assessment has been made in my client's case.
AP1 (Applicant): And this has, as a matter of fact, adversely affected the protection of my client's rights because, when considering the court's extensive case law on family reunification, he was actually – or there were actually – several factors in favor of my client.
AP1 (Applicant): First, the Immigration Board did not consider what is otherwise a decisive factor that marriage was entered into before flight.
AP1 (Applicant): Secondly, did they consider that there were particular strong bounds between the couple based on more than 25 years of marriage and the couple's two adult children.
AP1 (Applicant): Also of critical importance in favor of my client is that the number of refugees has decreased to a very manageable number at the material time.
AP1 (Applicant): And finally, no thoughts were given to the fact that the applicant – or when the applicant arrived in Denmark, the three-year waiting period was not enforced, nor was it enforced when he applied in November 2015.
AP1 (Applicant): And therefore, it could have been reasonable to weigh in that he had actually legitimate legal expectations that a timely reunification would be granted to him.
AP1 (Applicant): Against all of this, the government has afforded only one single argument.
AP1 (Applicant): It is that in September 2016, it could be rightfully assumed by the Immigration Board that the violence in Syria would cease rather quickly.
AP1 (Applicant): Therefore there was no need for a thorough assessment of my client's case, nor was it necessary to grant him reunification at that time, because it could safely be assumed that he soon would be able to return to Syria and enjoy family life there.
AP1 (Applicant): Now Mr. President, the Court has held in Bayer v. Denmark that limitations and restrictions
AP1 (Applicant): on human rights cannot be deemed sufficiently justified if they are not based on a careful and objective assessment of facts by the contracting state.
AP1 (Applicant): In this present matter, likewise, the Danish government has refrained from the same as they did in the Bayer case.
AP1 (Applicant): The government has not in its remission put forward any facts nor evidence to support the Immigration Board's assumption that my client would be able to return to Syria, implying that the violence in Syria would cease within a short time.
AP1 (Applicant): And in addition to this, I would submit respectfully that the government most likely will find it very difficult to establish such convincing facts, because the waiting period was first and foremost justified by political considerations rather than a proper and objective assessment of relevant facts.
AP1 (Applicant): So in conclusion to this part of my submission, I will respectfully submit that the lack of evidence, the lack of a sufficient assessment of my client's case, must lead to that any doubts on the merits of this case should be resolved in favor of my client rather than in favor of the government.
AP1 (Applicant): I will hereafter address the other part of my submission, namely that a minimum three-year waiting period is inconsistent with Article 8.
AP1 (Applicant): Beyond this, the Commissioner has made it crystal clear in her submission to the Court that waiting periods of more than one year should be considered inappropriate.
AP1 (Applicant): Secondly, in Tandem with Senga versus France, this Court has ruled that the fact it took France almost three years, three and a half years, to process an application for family reunification submitted by a refugee was clearly excessive, and the Court found a violation of Article 8.
AP1 (Applicant): So I think it's fair to say at this point that there is really nothing to support the government's assumptions.
AP1 (Applicant): There's nothing in expert recommendations nor in the Court's case law that supports that a three-year waiting period is consistent with Article 8.
AP1 (Applicant): Another route to address this, and I think perhaps the most critical, is to consider whether it is fair that one class of individuals in need of protection is treated differently and with considerably lower protection standards than other individuals in need of protection.
AP1 (Applicant): The UN Refugee Agency has in particular addressed this issue in its submission to the Court and has stated that there is no objective reason to distinguish between refugees who seek individual protection and those who seek protection due to war and general violence in their home country.
AP1 (Applicant): Precisely the same is also set forth by the Commissioner in her submission to the Court.
AP1 (Applicant): This Court has also, in two rulings, said I would submit rather the same.
AP1 (Applicant): The first is in Tukwabe-Czechly v. Netherlands, where the Court said it was questionable to
AP1 (Applicant): maintain as the Dutch government did, that the applicant could be said to have left her family at free will, bearing in mind that she had fled her home country in the course of a civil war.
AP1 (Applicant): I submit that this rather clearly indicates that she was entitled to be treated in the same preferential manner as refugees.
AP1 (Applicant): In the next case, and this is the Court's leading decision in Hode and Abdi v. the United
AP1 (Applicant): Kingdom, the Court ruled that the applicant, Mr. Hode, who was granted protection in the
AP1 (Applicant): United Kingdom, was not only in the same position as other refugees, but the Court went actually a step further and said that he could compare himself to immigrant workers and exchange students for the purpose of family reunification.
AP1 (Applicant): The overriding decisive factor for the Court was that the individuals in question equally only were granted a limited period of residence in the United Kingdom.
AP1 (Applicant): So I respectfully say that if Mr. Hode could compare himself to not only refugees, but
AP1 (Applicant): also to migrant workers and students, then the Court must surely also say that my client may compare himself to those individuals in need of protection for individual reasons because they are in the same similar situation.
AP1 (Applicant): And the particular reasons for this is that likewise in the Hode and Abdi ruling, all individuals in need of protection, whether for general or individual reasons, equally are subject to a limited residence permit in Denmark.
AP1 (Applicant): And secondly of importance is that individuals in need of protection basically have the same protection needs and probably most important, none of them are able to resume family life at their home country.
AP1 (Applicant): I will also submit that this is not a controversial standpoint because it falls in line with essential European values of equal rights and equal protections.