TrustHLT/LaCour huggingface dataset:
TP2 (ThirdParty): Sa vie familiale n'avait été interrompue qu'en raison de sa fuite, par crainte sérieuse de persécution en France de la Convention de Genève, et cela ne lui était donc pas imputable.
TP2 (ThirdParty): Enfin et surtout, c'est bien le temps excessif pris par les autorités pour accorder les visas d'entrée à sa famille qui était en jeu.
TP2 (ThirdParty): Il serait dès lors erroné de vouloir tirer de cet arrêt une quelconque conclusion sur la durée généralement admissible d'un délai de carence figurant dans la loi.
TP2 (ThirdParty): Pour conclure, permettez-moi encore, M. le Président,
TP2 (ThirdParty): d'ajouter quelques remarques sur la question de l'admissibilité des conditions légales, encadrant le droit au regroupement familial.
TP2 (ThirdParty): Ces conditions sont assez variées.
TP2 (ThirdParty): Il s'agisse de délais de carence, de délais maximum, de critères d'intégration, ou encore d'exigences relatives à un revenu minimum ou à une absence de dépendance à l'aide sociale, par exemple.
TP2 (ThirdParty): Votre Cour a déjà eu l'occasion d'examiner de telles conditions.
TP2 (ThirdParty): Elle ne les a, à juste titre, pas considérées comme irréconciliables avec la Convention, voire par exemple l'arrêt Konstantinov contre Pays-Bas par agrafe 50, ou encore l'arrêt Kazanbansic contre Suisse par agrafe 59.
TP2 (ThirdParty): Lorsque de telles conditions sont inscrites dans la loi, il est important que le législateur ménage la possibilité d'admettre des exceptions.
TP2 (ThirdParty): En d'autres termes, l'autorité doit pouvoir garder un pouvoir d'appréciation pour tenir compte des situations individuelles particulières, en prévoyant expressément la possibilité de prendre en compte des raisons spéciales, notamment au titre de la nécessité de maintenir l'unité de la famille.
TP2 (ThirdParty): Le législateur danois a précisément ménagé un tel pouvoir d'appréciation.
TP2 (ThirdParty): Or, nous l'avons vu, en pratique, de nombreuses exceptions ont été accordées, comme nous l'ont indiqué les représentants danois, aux demandeurs d'une autorisation de regroupement familial.
TP2 (ThirdParty): De la même manière, le droit suisse préserve expressément le pouvoir d'appréciation des autorités compétentes, qui doivent tenir compte des intérêts publics, de la situation personnelle de l'intéressé, ainsi que de son intégration.
TP2 (ThirdParty): Ce pouvoir d'appréciation des autorités, à condition qu'il soit prévu dans la loi et que les autorités en fassent bon usage, permet de garantir une application du droit national qui se concilie avec les exigences de la Convention, en particulier celle de l'article 8, paragraphe 2.
TP2 (ThirdParty): Voilà, Monsieur le Président, Mesdames et Messieurs les juges, les raisons pour lesquelles le gouvernement suisse invite la Grande Chambre à rejeter la requête dont elle est saisie dans l'affaire M1 contre Danemark.
TP2 (ThirdParty): Je vous remercie de votre attention.
Robert Spano (JudgeP): Merci, Merci beaucoup Mr. Chablais, votre audio et video etaient clair.
Robert Spano (JudgeP): Okey, now we turn to, and I invite the Judges who wish to pose questions to raise their hands, Judge Serghides.
Georgios A. Serghides (Judge): Thank you very much, Mr. President.
Georgios A. Serghides (Judge): My question is addressed to both parties.
Georgios A. Serghides (Judge): As it appears from your pleadings, it is a common ground that originally a request for family reunification was made on 4th November 2015, which was refused first by the Danish Immigration Office and finally by the Immigration Appeals Board in September 2016.
Georgios A. Serghides (Judge): As it appears also from your pleadings, it is a common ground that family reunification was granted on 24th June 2019.
Georgios A. Serghides (Judge): The applicant argues that he applied again for family reunification on 26th April 2018, that the government rejected his application on 22 October 2018 and requested additional information in particular pertaining to the authenticity of his marriage, which the applicant subsequently provided and the family reunification was granted on 24th June 2019.
Georgios A. Serghides (Judge): On the other hand, the government argues at paragraph 12 of their memorial that the applicant applied for family reunification on 12 February 2019 and that on 24 June 2019 the request was approved.
Georgios A. Serghides (Judge): My question is how many times the applicant applied for family reunification, in particular when the applicant's second request was rejected and was requested to provide additional information pertaining to the authenticity of his marriage, as the applicant argues.
Georgios A. Serghides (Judge): Was this submission of additional information made in the context of a third request or as a part of the second request?
Georgios A. Serghides (Judge): Another question to both parties.
Georgios A. Serghides (Judge): What was the reason of the delay for examining the last request for reunification and why eventually the applicant had to stay four years and a half in Denmark from January 2015 up to 24 June 2019 to be permitted to have family reunification?
Georgios A. Serghides (Judge): Thank you very much.
Robert Spano (JudgeP): Judge Schukking.
Jolien Schukking (Judge): First of all, I would like to thank the parties and all the interveners for their very clear statements.
Jolien Schukking (Judge): I have a question to the representative of the government, but of course also the representative of the applicant is invited to reply.
Jolien Schukking (Judge): The question relates to the application of section 9c paragraph 1 of the Danish Aliens Act, the provision that provides for granting residence permits to family members within the three years waiting period in exceptional situations.
Jolien Schukking (Judge): From the explanatory report to the law that introduced this waiting period, I got the impression that such an exceptional situation would only be accepted in a very few circumstances.
Jolien Schukking (Judge): However, in your introductory remarks, you mentioned that in a substantial number of cases, this provision has been applied.
Jolien Schukking (Judge): My question is, could you please, in the second round, repeat the numbers you mentioned, and could you please provide us with a number of concrete situations in which this exceptional situation has been accepted? Thank you.
Robert Spano (JudgeP): Le juge Pastor Vilanova, he will ask in French.
Pere Pastor Vilanova (Judge): Merci beaucoup, M. le président.
Pere Pastor Vilanova (Judge): J'ai une question, donc, deux questions qui sont adressées au requérant, mais rien n'empêche, bien entendu, le gouvernement d'apporter des éléments si nécessaires.
Pere Pastor Vilanova (Judge): La première question est la suivante.
Pere Pastor Vilanova (Judge): Pourquoi l'épouse du requérant, c'est-à-dire Mme Jen, n'a jamais demandé l'asile au Danemark?
Pere Pastor Vilanova (Judge): Et ma deuxième question est la suivante.
Pere Pastor Vilanova (Judge): Quelle était la situation, donc, de cette dame, de Mme Jen?
Pere Pastor Vilanova (Judge): Donc, quelle était sa situation en Syrie pendant que son mari résidait seul au Danemark?
Pere Pastor Vilanova (Judge): Elle avait un travail stable, par exemple?
Pere Pastor Vilanova (Judge): Par exemple? Je vous remercie, M. le président.
Robert Spano (JudgeP): Thank you very much. Judge Elósegui.
Robert Spano (JudgeP): A minute.
Robert Spano (JudgeP): Microphone for Judge Elósegui, please.
María Elósegui (Judge): Perfect.
María Elósegui (Judge): Well, thank you to both parties.
María Elósegui (Judge): I have two questions, one for the government and another for the applicant.
María Elósegui (Judge): For the government, a very concrete one related to the differences between the application of the Article Section 7.3, 7.2, or 7.1.
María Elósegui (Judge): And then, could you explain the differences in the procedure dealing with a request for protection in order to substantiate in the interviews the real and personal risk of a treatment contrary to Article 3 due to the individual circumstances that upon return she or he can suffer?
María Elósegui (Judge): Then my question is about these interviews and the assessment to classify these asylum seekers in one of these three situations.
María Elósegui (Judge): My other question for the applicant is very short.
María Elósegui (Judge): You have said in your observations, well, then I want to ask in which arguments do you support your statement that in your case to say that the need for protection was only temporary was a pure speculation?
María Elósegui (Judge): Why you say that it was a pure speculation?
María Elósegui (Judge): And nothing else.
Robert Spano (JudgeP): Judge Lemmens
Paul Lemmens (Judge): I would like to ask a question relating to Article 14, and it is a little bit prompted by what Mr. Chablais said at the end.
Paul Lemmens (Judge): Assuming that there are here comparable situations, assuming that there is a legitimate aim for the difference in treatment, the question arises whether the means to create this difference in treatment are relevant for the aims pursued.
Paul Lemmens (Judge): Mr. Braad said that the reasons for the 2015 amendments
Paul Lemmens (Judge): were, on the one hand, to offer protection as long as needed, and on the other hand, to ensure that the return is possible when there is no longer a need for protection.
Paul Lemmens (Judge): So then my question comes, to what extent is this specific difference in treatment based on the waiting period for the right to family reunification?
Paul Lemmens (Judge): To what extent is it relevant for the aims pursued?
Robert Spano (JudgeP): Thank you very much, Judge Kjølbro.
Jon Fridrik Kjølbro (Judge): I have one question, and it is directed to the government, and it concerns the choice for the duration of the waiting period.
Jon Fridrik Kjølbro (Judge): I understand the pleadings of the applicant to be that the applicant is not, as such, calling into question the legitimacy of introducing a waiting period.
Jon Fridrik Kjølbro (Judge): And in his observations, a waiting period of one year would have been reasonable, but he's challenging the three-year waiting period.
Jon Fridrik Kjølbro (Judge): My question is, when it was introduced in 2015, it was one year.
Jon Fridrik Kjølbro (Judge): When it was amended in 2016, it became three years.
Jon Fridrik Kjølbro (Judge): I assume that the government has been must have reflected on whether it should be one year, two years, three years, or four years.
Jon Fridrik Kjølbro (Judge): And therefore, my question is, why did the government opt for three years?
Jon Fridrik Kjølbro (Judge): One year would have been the recommendation of the Commissioner of Human Rights.
Jon Fridrik Kjølbro (Judge): Two years would have been the EU Family Reunification Directive from 2003.
Jon Fridrik Kjølbro (Judge): Three years seems to be the legislation in Sweden and other places.
Jon Fridrik Kjølbro (Judge): But could you shed some light on why the government opted for three years, or to ask in a more direct way, was it to have as long a period as possible, which was still compatible with international obligations?
Robert Spano (JudgeP): Judge Turković.
Ksenija Turković (Judge): Just two questions.
Ksenija Turković (Judge): I don't know whether I understood properly, but now apparently there is the law that applies three years to all the groups.
Ksenija Turković (Judge): So could you explain what was the reason to extend to all the groups?
Ksenija Turković (Judge): And the second question, am I wrong?
Ksenija Turković (Judge): I don't know.
Ksenija Turković (Judge): Maybe I'm wrong.
Ksenija Turković (Judge): And then the second question is, we heard today a couple of times that different groups are affected differently.
Ksenija Turković (Judge): I would be interested whether you have data whether such legislation affects women comparatively much more than men.
Robert Spano (JudgeP): I do not see any other requests for posing questions.
Robert Spano (JudgeP): Now the court will withdraw until 10 minutes past 12, 25 minutes.
Robert Spano (JudgeP): The hearing will resume, again, I say, 10 minutes past 12, upon which the parties can reply to the judges' questions.
Robert Spano (JudgeP): I call Mr. Braad for the government.
GR1 (Government): Mr. President, thank you to you and the distinguished members of the court for the many pertinent questions asked.
GR1 (Government): I will try to respond to them in the manner they were or in the order they were presented to us.
GR1 (Government): First, I will try and respond to Judge Saki's question about the different applications and about the yes, the processing times.
GR1 (Government): And I admit it is a bit confusing, I think, to all of us.
GR1 (Government): But I will try to see if I can clarify. Perhaps I should start out by referring to the case law, the McKenzie v. France and Santa Mocinga v. France cases,
GR1 (Government): where the court found that processing times of respectively five years and three and a half years were excessive, as we have also heard today.
GR1 (Government): The French cases concerned the processing time from the point in time where when the applicants had the right to family reunification, recognized in principle under French law.
GR1 (Government): And the government and the applicant in this case, I think, differentiate on the question as to what point in time from which the processing time in the family reunification case should be counted.
GR1 (Government): So I think the question is, should it be counted from the application back in April 2018 for reopening of the previously submitted application?
GR1 (Government): Or should it be counted from the submission in February 19 of the new application to the first instance after expiry of the three year period?
GR1 (Government): And I have to say the procedure in this case, specific case, has been somewhat unfortunate and unusual.
GR1 (Government): I think it's fair to say that misunderstandings have been have been on both sides of this.
GR1 (Government): But what I what I will say, I think, be that as it may, leaving all that aside, I think that in the applicant's case, the three year waiting period expired in June 2018.
GR1 (Government): And I think that's a key point. So it is from this point in time that the processing time should be counted at its earliest, in our opinion.
GR1 (Government): So and even counting from this earliest possible point in time, the processing took approximately one year and two weeks before the family reunification was granted.
GR1 (Government): In the opinion of the government, that is not excessive and it's not a violation of the procedural aspects of Article eight of the convention.
GR1 (Government): Let me also add that the average Danish processing time is approximately three months and in 2018 and six months in 2019.
GR1 (Government): Yes, I hope that answers the question from Mr. Sarkis, and I will now turn to to judge Shikins Shukins questions.
GR1 (Government): There was a question about the the number of exemptions made and also a question about some examples of the exceptions made to the to this three year waiting period.
GR1 (Government): So let me try and respond to that. I can repeat as what I said in the the initial submission that in every case,
GR1 (Government): the authorities assess whether family reunification must be granted before the expiry of the waiting period of three years.
GR1 (Government): Reunification is always granted when so required by Denmark's international obligations.
GR1 (Government): And as an example of this, if the family member in Denmark has been taking care of a disabled spouse in the home country or if the family member, for example, has severely ill minor children in the home country, this is something that will be taken into consideration.
GR1 (Government): Another example could be if the family member in Denmark is a minor child and the best interest of the child would be to to grant its its its parents family reunification in in Denmark.
GR1 (Government): So it is actually a significant number of of cases where this exemption is made.
GR1 (Government): I think I mentioned the number 25, approximately 25 percent.
GR1 (Government): And that is and that is a valid that's a valid number. Turning then to the the question from Judge Losekey,
GR1 (Government): on the legal differences between the the the categories in Section seven, paragraph one to three.
GR1 (Government): And also there was a question about the practices concerning how to distinguish between the different categories.
GR1 (Government): What kind of practices concerning interviews do we have and so on?
GR1 (Government): I'll try to respond to that as as well, perhaps first clarifying the different the different scopes of the of the different paragraphs of Section seven in the Danish law.
GR1 (Government): So if I start by Section seven, one of the Danish Aliens Act, I'll say that refugees covered by the 51 Refugee Convention are granted residence pursuant to this paragraph.
GR1 (Government): This is when a person, obviously, is is found to have well-founded fear of being persecuted for reasons of, for example, race, religion, nationality, membership of a particular social group or political union opinion.
GR1 (Government): So these refugees are given convention status according to Section seven, one of the Aliens Act.
GR1 (Government): If we then move on to Section seven, paragraph two, this is referring to persons in risk of treatment contrary to Article three of the convention due to personal grounds.
GR1 (Government): They are granted residence pursuant to Section seven, paragraph two of our Aliens Act.
GR1 (Government): And that includes, for example, risk of death penalty, being subjected to torture or inhuman or degrading treatment or punishment, as I mentioned.
GR1 (Government): So the person must face individual persecution, for instance, because of a specific conflict with the persons or with the persons in their home country.
GR1 (Government): So these persons are given subsidiary protection status.
GR1 (Government): Yes, so I hope that clarifies at least to some extent the the Section seven, paragraph one and paragraph two.
GR1 (Government): I think I already dealt with the new the new category in the in Section seven, paragraph three.
GR1 (Government): Then to the question of of the of the interview practices, how how do we how do we go about to make the distinctions when applying for for asylum in Denmark?
GR1 (Government): The person is requested to fill out a form and afterwards the subject to take part in an interview.
GR1 (Government): It's held with the Danish Immigration Service with an interpreter.
GR1 (Government): The length of the interview can vary quite a quite a bit.
GR1 (Government): Some will take a few hours.
GR1 (Government): Others will will take up to a couple of days and also further further interviews may be held if needed.
GR1 (Government): If the person disagrees with the asylum status that is granted, the person may appeal to the Refugee Appeals Board in Denmark and the person will then be afforded legal service without charge.
GR1 (Government): So the protection status of the person in question will be determined after what we consider a very careful assessment examination of of the person's background in this in the way that I have in the way that I have described.
GR1 (Government): I hope that responds to George Lusiky's question and I now turn then to to the questions posed by George Lemons concerning Article 14.
GR1 (Government): So assuming that there is a legitimate ground to differentiate persons under Section 7.3 compared to the persons under Section 7.2 and 7.1.
GR1 (Government): I say I'd argue that it has been the view of the Danish Parliament, the Danish governments that the the waiting period in the in case here was needed and was a proportionate means to to meet the number of legitimate aims.
GR1 (Government): It has to do with the number of new arrivals that has great significance as I as I as I explained during my initial submission has significance for the social cohesion of Denmark.
GR1 (Government): So the view has been that this is a measure that would help us accomplish this aim of maintaining social cohesion of our society.
GR1 (Government): I should also mention in this regard as I alluded to in my initial statement that Denmark has a very elaborate welfare system is a very high degree of redistribution of wealth in the Danish society.
GR1 (Government): So also that is is is is part of the the background.
GR1 (Government): So the the conditions for foreigners with a recognized need of protection are in most aspects the same as for other people residing in in Denmark.
GR1 (Government): There's access to free public health care access to permanent residents housing language training as I mentioned.
GR1 (Government): So all of this is is included. It was in what is being offered to to to persons recognized who has a recognized need for protection.
GR1 (Government): Yes, I hope that responded to just limits questions.
GR1 (Government): Otherwise, you are free to to to to to return to judge Kupfer who posed a question about the choice that the legislature in Denmark made between the one year postponement or three year postponement.
GR1 (Government): What what was the what was the deliberations behind this choice?
GR1 (Government): What was the reflections? And and I think Judge Kirby already himself indicated this when he posed the answer.
GR1 (Government): It was a it was an attempt to try to balance two things at one time to try to find a balancing point between a political desire in Denmark to to respond to the situation and urgent call to try to respond to the extraordinary situation on the one hand.
GR1 (Government): And on the other hand, a wish to to to stay within the framework of the convention to to to to to identify a way forward that would be in compliance with the convention.
GR1 (Government): So those two factors were the determining in in identifying this this rule. And and as just Cuba indicated, some countries have had a more extensive period of waiting.
GR1 (Government): Others have resorted to to to to other more minimalistic approaches. The Danish government tried to find a middle way in this and try to find a proportionate and a measured response.
GR1 (Government): And the three waiting period was the result of these deliberations.
GR1 (Government): Perhaps in this context, I could just briefly take a moment to to comment on the on the on the the indication from from applicants council that that that maybe in some way the court has already taken a position on this issue.
GR1 (Government): And I would I would like to to counter argue that that comment.
GR1 (Government): I think it's correct that that that in the Danish travel, perhaps one or I know it's correct that there is a mentioning that there's a certain risk of process if one extends the waiting period from one year to three years.
GR1 (Government): And that is due to the to the fact, of course, that that neither this court nor the European Court in Luxembourg has had an opportunity to to take specific position on this question.
GR1 (Government): So just to make that point, just to make that point clear, this is, in our opinion, the first time the court has had an opportunity to take a position on this on this question.
GR1 (Government): And then finally to judge took of it.
GR1 (Government): A question about. Yeah, the the also also a question about the different categories, I think the Danish section paragraph one to two to three, I hope also in the light of time is now expiring.
GR1 (Government): I hope I have I did respond to that earlier on in some of the other questions, so maybe I do not need to go into too much detail.
GR1 (Government): I'll just in closing. Say a few words, very brief words on the potential consequences of the court's decision in this case, as mentioned also in what I said earlier this morning.
GR1 (Government): This case does have quite far reaching consequences for many European countries. And if the courts should conclude the beneficiaries of subsidiary protection,