TrustHLT/LaCour huggingface dataset:
Robert Spano (JudgeP): I welcome all participants to this first ever public hearing organized by the European Court of Human Rights with the use of video conferencing technology, which has been made necessary due to the COVID-19 health crisis.
Robert Spano (JudgeP): Allow me to begin by thanking the applicant, the respondent government, and the third party intervenors for their cooperation in preparing this hearing on the admissibility and merits in the case of M.A. versus Denmark, which I now declare open.
Robert Spano (JudgeP): It will be available to the public on the court's website tomorrow, Thursday, June 11.
Robert Spano (JudgeP): The application in this case was lodged with the court on 30 January 2018 under Article 34 of the convention by a Syrian national, Mr. M.A.
Robert Spano (JudgeP): It was allocated to the fourth section of the court, pursuant to Rule 52, paragraph 1 of the rules of court.
Robert Spano (JudgeP): It was communicated to the respondent government on 7 September 2018.
Robert Spano (JudgeP): On 19 November 2019, the chamber decided to relinquish jurisdiction in favor of the grand chamber.
Robert Spano (JudgeP): The commissioner for human rights of the Council of Europe has exercised her right under Article 36, paragraph 3 of the convention, to intervene in the proceedings before the grand chamber and submitted written observations.
Robert Spano (JudgeP): Leave to intervene under Article 36, paragraph 2 of the convention, and Rule 44, paragraph 3 of the rules of court was granted to the governments of Norway and Switzerland, the United Nations High Commissioner for Refugees, and the Danish Institute for Human Rights.
Robert Spano (JudgeP): At this hearing, the respondent government are represented by their agent, Mr. Michael Braad,
Robert Spano (JudgeP): and their co-agent, Ms. Nina Holst-Christensen.
Robert Spano (JudgeP): They are assisted by Ms. Lone  Zeuner, Ms. Moya-Louise Lindsay-Poulsen, Ms. Anna-Sophie Saugmann-Jensen, Mr. Øzlem Akar,
Robert Spano (JudgeP): Mr. Christian Wegener, Mr. Niels Rune Brandt, Ms. Sarah Larsen Vaabengaard, and Ms. Sofie Bach Andersen, advisors.
Robert Spano (JudgeP): The applicant is represented by Mr. Christian Dahlager, lawyer,
Robert Spano (JudgeP): and by Ms. Dorthe Kynde Nielsen, counsel.
Robert Spano (JudgeP): The Commissioner for Human Rights of the Council of Europe, Ms. Dunja Mijatović, will also participate in this hearing,
Robert Spano (JudgeP): pursuant to her right to intervene as a third party under Article 36, paragraph 3 of the convention.
Robert Spano (JudgeP): She is assisted by Ms. Anne Weber, advisor.
Robert Spano (JudgeP): In addition, the government of Switzerland were granted leave to participate in this hearing under Article 36, paragraph 2 of the convention.
Robert Spano (JudgeP): They are represented by their agent, Mr. Alain Chablais,
Robert Spano (JudgeP): assisted by Ms. Dominique Steiger Leuba,
Robert Spano (JudgeP): and Ms. Karen Mareike Hamann, advisors.
Robert Spano (JudgeP): Having consulted the agent of the government and the representative of the applicant and the representative of the third parties, I have determined the order of addresses as follows.
Robert Spano (JudgeP): Mr. Braad for the government will speak first,
Robert Spano (JudgeP): and then Mr. Dahlager for the applicant,
Robert Spano (JudgeP): and finally Ms. Mijatović and Mr. Chablais, third parties.
Robert Spano (JudgeP): I call Mr. Braad.
GR1 (Government): Distinguished members of the court, it's an honor to appear before you on behalf of the Danish government, in particular on a day like today, a historic day.
GR1 (Government): And despite the initial difficulties here, I hope that things will be working well.
GR1 (Government): We have had indications that, yeah, the technical side of things will be working well.
GR1 (Government): So I hope that will be the case.
GR1 (Government): Otherwise, please mark.
GR1 (Government): The case today concerns Article 8 of the European Convention on Human Rights, as well as Article 14, taken in conjunction with Article 8.
GR1 (Government): The issue at hand is the postponement of family reunification for persons granted temporary subsidiary protection based on the general situation in the home country.
GR1 (Government): In the government's opinion, the heart of the matter, when assessing the compatibility of the convention with the contested Danish rules, is the following question.
GR1 (Government): Do beneficiaries of subsidiary protection who have fled a general situation in their home country, do they enjoy the same favorable family reunification rights as refugees under the 1951 Refugee Convention?
GR1 (Government): It's a fundamental question, obviously of great importance to the individuals involved.
GR1 (Government): It's also a very important question for countries around Europe and their efforts to manage and to absorb recent years' rising influx from regions of conflict, and to do so in a responsible and balanced way.
GR1 (Government): The answer to that question may have quite far-reaching consequences for the immigration policies of a number of European countries, including my own.
GR1 (Government): I will begin my intervention with a few words on the facts of the case, and I will then turn to the specific Danish three-year rule, including an outline of its background, and I will address the question of its compatibility with Article 8 of the convention.
GR1 (Government): I will then conclude with a question of Article 14, taken in conjunction with Article 8.
GR1 (Government): Mr. President, the present case concerns a refusal
GR1 (Government): to grant family reunification to the applicant's wife on the grounds that the applicant had not held his residence permit under Section 7, Paragraph 3 of the Danish Aliens Act for the preceding three years, and because no exceptional circumstances warranted reunification.
GR1 (Government): Now, this refusal has been upheld by the Independent Immigration Appeals Board in Denmark, by the High Court in Denmark, and also by the Supreme Court of Denmark.
GR1 (Government): I should mention that the applicant and the applicant's wife have since then been reunited in Denmark in September 2019.
GR1 (Government): Mr. President, I will now focus on Article 8 of the convention
GR1 (Government): and the statutory postponement of the access to family reunification for three years under Danish law.
GR1 (Government): This three-year rule, or waiting period, as it has been referred to, reflects how the Danish legislature has interpreted the positive obligations flowing from Article 8 of the convention in cases concerning family reunification with beneficiaries of temporary protection status who have fled a general situation in their home country.
GR1 (Government): The rule reflects the basic view that this group does not generally have a right to family reunification under Article 8 within the first three years of a stay in Denmark.
GR1 (Government): Now, this is due to the generally more uncertain and temporary nature of this group's need for protection.
GR1 (Government): However, if exceptional circumstances apply, within the first three years of stay in Denmark, also persons in this group are entitled to family reunification.
GR1 (Government): Perhaps I should add here that in the period from mid-February 2015 to the end of July 2017, exemptions were made in 79 cases concerning spouses and children out of a total of 309 decided applications.
GR1 (Government): So that equals exemptions in approximately 25% of the cases.
GR1 (Government): Mr. President, the court has not yet dealt with the question
GR1 (Government): whether beneficiaries of subsidiary protection enjoy a similarly favorable family reunification right as refugees covered by the 1951 convention.
GR1 (Government): The existing case law on refugees' right to family reunification, including, for instance, the court's rulings in Tandem-O-Sinka v. France case,
GR1 (Government): concerns refugees covered by the 1951 convention and not other groups of beneficiaries of international protection.
GR1 (Government): So for the first time, the court has now presented with the question a person who is not a refugee under the 1951 refugee convention but who is a beneficiary of subsidiary protection and who has fled a general situation in the home country.
GR1 (Government): Does this person have a right to the same favorable family reunification procedure as refugees covered by the 1951 convention?
GR1 (Government): My government's answer to that question is no.
GR1 (Government): Before I elaborate on the reasons why we find that the Danish three-year rule is compatible with the convention, I will briefly outline the specific Danish asylum and family reunification legislation and its background.
GR1 (Government): Traditionally, and until the 2015 amendment to the Aliens Act, Danish asylum law operated with only two categories of persons granted international protection.
GR1 (Government): The first category being persons granted so-called convention status, referring to persons covered by the 1951 refugee convention and given residence permit pursuant to section 7, paragraph 1 of the Danish Aliens Act.
GR1 (Government): The second category being persons granted subsidiary protection status and given residence permit due to personal grounds pursuant to section 7, paragraph 2.
GR1 (Government): This is granted when the person due to personal grounds and not due to the general situation in a country risks the death penalty, torture, inhumane or degrading treatment in the country of origin.
GR1 (Government): In essence, no distinction was made between these two categories, access to family reunification.
GR1 (Government): Both categories were and still are eligible for family reunification from the time they are granted asylum in Denmark.
GR1 (Government): So, Mr. President, why did Denmark amend its legislation
GR1 (Government): and introduce a new temporary protection status for persons fleeing from the general situation in their country?
GR1 (Government): And why did Denmark generally postpone the right to family reunification for this new group, initially for one year and later for three years?
GR1 (Government): I think to better understand this, it's necessary to take a look at the factual developments in Denmark from 2012 and onwards.
GR1 (Government): From 2012 and onwards, Denmark saw a very significant increase in the number of asylum applicants and a subsequent increase in recognised asylum claims, in particular stemming from the conflict in Syria.
GR1 (Government): Numbers more than doubled over the course of a few years.
GR1 (Government): I can refer you to Table 1 and 2 of the statistics in Annex 6 to our memorial of 27 January this year.
GR1 (Government): In the spring of 2015, Denmark was per capita the fifth largest EU destination for asylum seekers.
GR1 (Government): Also in the period from 2013 to 2017, Syrian nationals represented the highest number of asylum applicants in Denmark, and in 2014 alone amounted to half of all asylum applications.
GR1 (Government): The percentage of successful asylum claims from Syrian nationals decided by the Danish Immigration Service has been at a steady level, between 96 and 99 per cent from 2013 and on.
GR1 (Government): Mr President, also another development should be mentioned as part of the overall background, the court's judgement in June 2011 in the Sufi and Elmi case, applying for the first time the principle for Somali nationals that everyone present in Mogadishu City would be considered at a real risk of treatment prohibited by Article 3 of the Convention.
GR1 (Government): This led to a sudden spike in the percentage of successful asylum claims from Somali nationals decided by the Danish Immigration Service, rising from 22 per cent in 2011 to 93 per cent in 2012.
GR1 (Government): Many of the Somali nationals were granted subsidiary protection pursuant to Section 7, Paragraph 2 of the Danish Aliens Act.
GR1 (Government): Not because they, due to individual circumstances, risked treatment prohibited by Article 3 of the Convention, but rather they were found to be covered by the principles set out in the Sufi and Elmi case due to the general situation in South and Central Somalia.
GR1 (Government): However, after two years, the court took to a re-evaluation of the situation in the case of KAB v. Sweden in September 2013.
GR1 (Government): Here the court concluded that the situation in Mogadishu was no longer of such a nature as to place everyone present in the city at a real risk of treatment contrary to Article 3.
GR1 (Government): Reading those two rulings from the court in conjunction made one thing very clear.
GR1 (Government): When a situation in a country or a specific area is so severe that one's life and human dignity is at risk solely from the very presence in that area, the situation is often very volatile.
GR1 (Government): It may change rather quickly.
GR1 (Government): So, Mr. President, it's on this overall background
GR1 (Government): that the introduction in 2015 of Section 7, Paragraph 3 of the Danish Aliens Act, the temporary protection status should be considered.
GR1 (Government): In 2015, given the sheer number of incoming asylum applicants, it became clear at political level that something had to be done to maintain control of the influx and to safeguard and maintain the cohesion of the Danish society.
GR1 (Government): And this is a point that I wish to emphasize because we believe it's a crucial element in this case.
GR1 (Government): Faced with an extraordinary and potentially overwhelming influx, governments across Europe found themselves compelled to react.
GR1 (Government): They did so not for short political gain.
GR1 (Government): They did so to maintain control and to safeguard cohesion of their societies.
GR1 (Government): Again, something clearly had to be done, a response was called for.
GR1 (Government): So the Danish legislator decided to subdivide the beneficiaries of subsidiary protection into two separate categories based on the type of protection needed.
GR1 (Government): Consequently, a new distinction was introduced.
GR1 (Government): Was protection needed based on individual circumstance or was it called for merely based on the general situation in the home country, a situation foreseen to be of a more temporary nature?
GR1 (Government): So the first category where protection needs were based on individual circumstances was entitled to subsidiary protection status.
GR1 (Government): The second group where protection needs were based on general situation was entitled to the new temporary protection status.
GR1 (Government): And to illustrate those distinctions, it may be helpful with an example.
GR1 (Government): A male Syrian asylum seeker liable for military service who refuses to serve the Syrian government will generally be considered to have a well-founded fear of persecution and will, as a main rule, be granted protection under section 7 paragraph 1 of the Danish Aliens Act.
GR1 (Government): But a male Syrian asylum seeker not liable for military service but who has fled the general situation in Syria will generally be granted protection under section 7 paragraph 3 of the Danish Aliens Act.
GR1 (Government): Now, the reasoning behind the Danish legislator's 2015 amendment was twofold.
GR1 (Government): First, it was to offer protection to asylum seekers for as long as needed.
GR1 (Government): Second, and at the same time, seeking some assurance that when the protection was no longer needed, the persons could be returned to their home country.
GR1 (Government): And allowing this context, perhaps to briefly quote from the preparatory works of the 2015 amending act also contained in annex 3 to our memorial.
GR1 (Government): And I quote, the government takes a humane approach to asylum policy and is fundamentally of the view that Denmark should take a share of the responsibility for the world's refugees.
GR1 (Government): At the same time, it is necessary to acknowledge that Denmark cannot offer residency to all those who need help.
GR1 (Government): And then it goes on to say about the specific new category, and I quote again, this group's need for protection is generally of a more temporary nature as the need for protection is based on a general situation which may change.
GR1 (Government): For example, a particularly serious situation of armed conflict creating a surge in asylum seekers for a period could change and make it possible for a large or small part of such asylum seekers to return to their country of origin.
GR1 (Government): With the bill, it is proposed to introduce a temporary protection status tailored to the need for protection of aliens who obtain asylum because of a particularly serious situation in their country of origin.
GR1 (Government): And it was then further proposed to give this new group with temporary protection status a more limited access to family reunification than beneficiaries of international protection, including refugees under the 51 convention.
GR1 (Government): This was based on the fact that the nature of the stay of persons granted temporary protection is generally more uncertain and foreseen to be of a more limited duration.
GR1 (Government): So it was decided in 2015 that this new category would not generally be eligible for family reunification unless their residence permit was extended after one year.
GR1 (Government): This waiting period was considered necessary in the interest of inter alia and effective immigration control as a continued access to family reunification from day one for this group would add to the immigration pressure and would add to the potential risk to the cohesion of the Danish society.
GR1 (Government): The scheme put into force postponing family reunification for this group for one year was an attempt to find a measured approach to the increasing influx and to try and strike a fair balance between competing interests.
GR1 (Government): So a balance of on the one hand, the individual's interest in family reunification and on the other hand, the state's interest in maintaining an effective immigration control.
GR1 (Government): When balancing these interests, the following factors in particular were taken into account.
GR1 (Government): First, the temporary stay of less than one year.
GR1 (Government): Second, the limited ties with Denmark at this point.
GR1 (Government): Third, the fact that the rules did not exclude but only generally postpone the access to family reunification and that family reunification would be possible even within the first year if special circumstances applied.
GR1 (Government): So Mr. President, turning now to the Danish amendment in 2016
GR1 (Government): whereby the postponement was extended from one year to three years, this was based on similar considerations.
GR1 (Government): So why this further postponement of the access to family reunification, you may ask.
GR1 (Government): Well, between the 2015 amendment and the 2016 amendment, the asylum pressure on Europe rose to an unprecedented and quite overwhelming level.
GR1 (Government): In many ways, it came out of the government's control.
GR1 (Government): I'm sure we all recall the tragic media newscasts showing huge waves of desperate asylum seekers, men, women, and children moving north from Southern Europe to Germany and many of them trying to reach Denmark and Sweden by foot.
GR1 (Government): ID checks and the reintroduction of border control in Sweden led to a serious risk to public order and public security because in the Copenhagen area, within a short period of time, a very large number of illegal migrants in effect became stranded.
GR1 (Government): This development was obviously part of the broader European migration crisis and it made it apparent for Denmark that the measures already taken were not sufficient.
GR1 (Government): The Danish legislature therefore found it necessary to take further steps and one of them was the extension of the waiting period from one to three years.
GR1 (Government): The legislature concluded that a large number of new arrivals could potentially jeopardise the successful integration efforts in Denmark, a country with a high redistribution of wealth.
GR1 (Government): It was considered necessary to further postpone the right to family reunification in order to manage the immigration pressure and to ensure sufficient capacity to integrate the large number of newly arrived individuals and secure the social cohesion of the Danish society.
GR1 (Government): Let me also in this context draw your attention to the fact that the municipalities in Denmark are obligated to offer, for instance, housing, language training, employment initiatives for all persons granted international protection in Denmark.
GR1 (Government): So it's in light of all of this that the extension of the waiting period from one to three years shall be seen.
GR1 (Government): The waiting period remains limited in time with a predictable and near certain path to family reunification after three years.
GR1 (Government): It also includes an individual assessment in all cases of whether extraordinary circumstances apply so that an exemption may be granted and exceptions are in fact granted in a substantial number of cases, as I mentioned.
GR1 (Government): Mr. President, the government obviously recognises that the number
GR1 (Government): of asylum seekers arriving over the past years has decreased.
GR1 (Government): But that does not automatically mean that the logical response is to revert to the legislation of the past.
GR1 (Government): An extraordinary situation with significant potential risks of new overwhelming movements of refugees sadly still remains.
GR1 (Government): The refugee situation in and outside the EU is still complex and it's still volatile.
GR1 (Government): The complexity is characterised by a high degree of uncertainty and interchangeability as a result of inter-alia pressure on the external EU borders, accumulation of refugees and migrants in neighbouring regions and the risk of secondary movements within the EU.
GR1 (Government): The volatility of the situation was once again underlined in the beginning of this year at Greece's external EU borders with Turkey.
GR1 (Government): Statements from the Turkish President and the withdrawal of the Turkish Coast and Border Guard suddenly threatened to send the EU back to 2016 under substantial migratory pressure.
GR1 (Government): It should be recalled that right at the external border of the EU, Turkey still hosts more than 3.5 million Syrians with protection status.
GR1 (Government): 3.5 million Syrians.
GR1 (Government): This unfortunately has not changed.
GR1 (Government): At the same time, we see large secondary movement within the EU and we have a Dublin regulation not functioning or in the case of transfers to Greece, not working at all for the past nine years.
GR1 (Government): So despite the currently reduced numbers, the situation cannot be considered stable and we cannot predict the number of asylum seekers in Denmark or in the EU in the coming weeks, in the coming months or in the coming years.
GR1 (Government): For as we have experienced in this extraordinary situation, developments may very rapidly change.
GR1 (Government): According to UNHCR, at the end of 2018, Syrian nationals still made up the largest forcibly displaced population with 13 million people living in displacement, including 6.7 million refugees,
GR1 (Government): 6.2 million internally displaced
GR1 (Government): and 140,000 asylum seekers.
GR1 (Government): Mr. President, I will just end this part of my argument
GR1 (Government): by just directing the court's attention to the very careful and elaborate considerations regarding the compatibility of the Danish rules with the Convention and the court's case law, both in the travaux préparatoire of the Danish legislation and in the Supreme Court's very carefully reasoned judgment.
GR1 (Government): All of this is annexed to the memorial.
GR1 (Government): Mr. President, there's no consensus at the European level
GR1 (Government): on whether beneficiaries of subsidiary protection should enjoy a similarly favourable family reunification procedure as refugees covered by the 51 Convention.