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OSMAN v. DENMARK - 38058/09 [2011] ECHR 926 (14 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/926.html
Cite as:
[2012] INLR 71,
61 EHRR 10,
[2011] Imm AR 682,
(2015) 61 EHRR 10,
[2011] ECHR 926
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FIRST
SECTION
CASE OF OSMAN v. DENMARK
(Application
no. 38058/09)
JUDGMENT
STRASBOURG
14 June
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Osman v.
Denmark,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
George
Nicolaou,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 24 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 38058/09) against the Kingdom
of Denmark lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Somali national, Mrs Sahro Osman (“the
applicant”), on 19 July 2009.
The
applicant was represented by the Aire Centre, an NGO situated in
London. The Danish Government (“the Government”) were
represented by their Agent, Mr Thomas Winkler, from the Ministry of
Foreign Affairs, and their Co-Agent, Mrs Nina Holst-Christensen, from
the Ministry of Justice.
The
applicant alleged, in particular, that the Danish authorities'
refusal to reinstate her residence permit in Denmark was in breach of
Articles 3 and 8 of the Convention.
On
25 November 2009 the acting President of the Fifth Section decided to
give notice of the application to the Government. It was also decided
to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
On
1 February 2011 the Court changed the composition of its Sections
(Rule 25 § 1 of the Rules of Court) and the above application
was assigned to the newly composed First Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in Somalia on 1 November 1987 as the youngest of
five siblings. Currently she lives in Esbjerg.
From
1991 to 1995 the applicant lived with her family in Kenya.
In
April 1994 the applicant's father and a sister were granted asylum in
Denmark.
Having
been granted a residence permit in November 1994, on 11 February
1995 the applicant, who at the relevant time was seven years old, her
mother and three siblings joined them. A few years later, the
applicant's parents divorced. The parents maintained joint custody of
the applicant, who lived with her mother. From 1995 until August
2002, the applicant attended various schools, some of which expelled
her due to disciplinary problems.
The
applicant also had difficulties with her parents, who disapproved of
certain aspects of her behaviour. Consequently, in May 2003, when the
applicant was fifteen years old, her father decided to take her to
Kenya to take care of her paternal grandmother, who was living at the
Hagadera refugee camp in north eastern Kenya. It appears that
the applicant's mother did not want her to go but reluctantly agreed
on the understanding that it would be a short trip. It also appears
that the applicant believed that she was going on a short trip to
visit her grandmother.
When
the applicant's father returned to Denmark, he was summoned for an
interview with the Immigration Service on 10 November 2003
because the latter had been informed that he, who had been recognised
as a refugee, had visited his country of origin. On 17 December 2003
the Immigration Service (Udlændingeservice) took the
stand that the applicant's father's residence permit had not lapsed.
In that connection, the applicant's father was advised on the
regulation regarding lapse of residence permits.
On
9 August 2005, three months before the applicant turned eighteen
years old, she contacted the Danish Embassy in Nairobi with a view to
returning to live with her mother and siblings in Denmark. Her father
had joined her in Nairobi to help her submit the application for
family reunification. He also remarried in Nairobi at the relevant
time. An interview was conducted with the help of an English/Somali
interpreter although it was stated that the applicant spoke Danish.
The applicant explained that she had taken care of her grandmother,
who had fallen seriously ill, until some of the grandmother's
children had arrived from Somalia to take over the care of their
mother.
In
a letter of 24 November 2005 to the Immigration Service the
applicant's mother stated, inter alia, that at the relevant
time it had been decided temporarily to send the applicant to Kenya
where the family had a network so that she could attend school and
that the applicant had been living with her father's friends.
On
21 December 2006 the Immigration Service found that the applicant's
residence permit had lapsed pursuant to section 17 of the Aliens Act
because she had been absent from Denmark for more than twelve
consecutive months; because she had not contacted the Immigration
Service until August 2005; and because there was no information
indicating that she could not have contacted the authorities in due
time. They also considered that the applicant was not entitled to a
new residence permit under section 9, subsection 1 (ii), of
the Aliens Act, in force at the relevant time, since the applicant
was 17 years old and the said provision only extended a right to
family reunification to children below the age of 15. Finally, it
found that no special circumstances existed to grant her a residence
permit under section 9 c, subsection 1, of the Aliens Act.
It noted in that connection that the applicant had not seen her
mother for four years; that it had been the latter's voluntary
decision to send the applicant to Kenya; that she could still enjoy
family life with her mother to the same extent as before; that she
had stayed with the grandmother; and that except for the
grandmother's age, there was no information that the applicant could
not continue to live with her or the grandmother's children.
On
11 April 2007 the applicant appealed against the decision and
maintained that it had not been her decision to leave the country;
that from the refugee camp where she lived with her grandmother she
was not able herself to go to Nairobi; and that during her stay
outside Denmark she had not stayed in her country of origin.
According
to the applicant, in June 2007 she re-entered Denmark clandestinely
to live with her mother. It is disputed whether the Danish
authorities were aware of this.
On
13 July 2007 the Immigration Service received a questionnaire from
the applicant dated 12 July 2007 used for requests for exemption from
the authorities revoking a residence permit despite a stay outside
Denmark for a certain period. It was partly filled out and stated,
inter alia, that it had been the applicant's parents' decision
that she should leave Denmark at the relevant time; that the
applicant spoke Danish, but could not read or write the language;
that she spoke the language of the country in which she was currently
residing, but that she could not read or write that language either;
and that she was very afraid and could not reside in her country of
origin as there was unrest. The applicant did not specify that she
had actually returned to Denmark, but her signature was dated as set
out above in Esbjerg, Denmark. It was also stated that her sister had
assisted her in answering the questionnaire.
On
1 October 2007 the Ministry of Refugee, Immigration and Integration
Affairs (Ministeriet for flygtninge, indvandrere og integration)
upheld the decision by the Migration Service of 21 December 2006. It
stated among other things:
“... The Ministry emphasises that there is no
information available of any circumstances that would lead to [the
applicant's] residence permit being deemed not to have lapsed ...
[the applicant's] parents did not apply for retention of [her]
residence permit before she left, and neither she nor her parents
contacted the immigration authorities during her stay abroad, and it
has not been substantiated that illness or other unforeseen events
prevented such contact. Thus, the Ministry finds that the illness of
[the applicant's] grandmother did not prevent [the applicant] or her
parents from contacting the immigration authorities.
Although the distance from Hagadera to Nairobi is
significant [485 km] and it can be assumed that [the applicant] did
not have the means to travel to Nairobi, the Ministry finds that
these circumstances did not prevent [the applicant's] parents from
contacting the immigration authorities before [the applicant's]
departure, which was planned.
The fact that [the applicant] stayed in Kenya and not in
Somalia does not change the fact that [she] has resided abroad for
more than twelve consecutive months.
It is stated for the record that it was not [the
applicant's] decision to leave Denmark and stay away so long. The
ministry finds that this will not lead to a different outcome of the
case as [the applicant's] parents had custody over her at the time of
her departure ... they could thus lawfully make decisions about [her]
personal circumstances...”
Upon
request from the applicant, who was represented by counsel, on
11 December 2007 the Immigration Service brought the case
concerning section 17 and section 9, subsection 1 (ii), of
the Aliens Act before the City Court of Copenhagen (Københavns
Byret), before which the case was decided on the documents
submitted, without any parties being summoned. On 25 April 2008 it
found against the applicant. It added that section 9,
subsection 1 (ii), of the Aliens Act had been amended, limiting
the right to family re-unification to children under 15 years instead
of under 18 years in order to discourage the practice of some parents
of sending their children on “re-upbringing trips” for
extended periods of time to be “re-educated” in a manner
their parents consider more consistent with their ethnic origins. It
was preferable in the legislator's view for foreign minors living in
Denmark to arrive as early as possible and spend as many of their
formative years as possible in Denmark. It found that such decision
did not contravene Article 8 of the Convention as invoked by the
applicant.
The
decision was appealed against to the High Court of Eastern Denmark
(Østre Landsret), henceforth the High Court, before
which the applicant's representative in his written submissions
stated that the applicant remained in Kenya. On 30 October 2008
the High Court upheld the City Court's decision. By way of
introduction, it stated that according to section 52 of the Aliens
Act, it could not review a final administrative decision of refusal
of a residence permit under section 9c, subsection 1, of the Aliens
Act. As to section 9, subsection 1 (ii) it confirmed that the
applicant failed to fulfil the conditions. It took into account that
the applicant's parents had sent her voluntarily to Kenya to live
with family for an indefinite period; that the applicant was
seventeen years and nine months old, when in August 2005 she applied
to re-enter Denmark; that her father visited her during her stay in
Kenya; and that her mother would also be able to visit the applicant
in Kenya to enjoy family life there.
Leave
to appeal to the Supreme Court (Højesteret) was refused
on 19 January 2008.
By
letter of 27 January 2010 the Ministry of Refugee, Immigration and
Integration Affairs advised the applicant of her duty to leave
Denmark pursuant to section 30 of the Alien's Act and the possibility
of submitting an application for asylum under section 7 of the Aliens
Act. The applicant was also advised that an application should be
submitted in person to the Immigration Service or the police.
So
far the applicant has not applied for asylum.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article
63 of the Constitution read as follows:
The courts have authority to adjudge on any matter
concerning the limits to the competence of a public authority.
However, anyone wishing to raise such matters cannot avoid
temporarily complying with orders issued by the public authorities by
bringing them before the courts.
25. Applications
for asylum are determined in the first instance by the Immigration
Service and in the second instance by the Refugee Appeals Board under
the Aliens Act (Udlændingeloven),
the relevant provisions of which at the relevant time read as
follows
Section 7
1. Upon application, a residence permit will be issued
to an alien if the alien falls within the provisions of the
Convention relating to the Status of Refugees (28 July 1951).
2. Upon application, a residence permit will be issued
to an alien if the alien risks the death penalty or being subjected
to torture or inhuman or degrading treatment or punishment in case of
return to his country of origin. An application as referred to in the
first sentence hereof is also considered an application for a
residence permit under subsection 1.
3. A residence permit under subsections 1 and 2 can be
refused if the alien has already obtained protection in another
country, or if the alien has close ties with another country where
the alien must be deemed to be able to obtain protection.
Section 8
1. Upon application, a residence permit will be issued
to an alien who arrives in Denmark under an agreement made with the
United Nations High Commissioner for Refugees or similar
international agreement, and who falls within the provisions of the
Convention relating to the Status of Refugees (28 July 1951), see
section 7(1).
2. In addition to the cases
mentioned in subsection 1, a residence permit will be issued, upon
application, to an alien who arrives in Denmark under an agreement as
mentioned in subsection 1, and who risks the death penalty or being
subjected to torture or inhuman or degrading treatment or punishment
in case of return to his country of origin, see section 7 subsection
2.
3. In addition to the cases
mentioned in subsections 1 and 2, a residence permit will be issued,
upon application, to an alien who arrives in Denmark under an
agreement as mentioned in subsection 1, and who would presumably have
satisfied the fundamental conditions for obtaining a residence permit
under one of the provisions of the Aliens Act if he had entered
Denmark as an asylum-seeker.
4. In the selection of aliens
issued with a residence permit under subsections 1 to 3, the aliens'
possibilities of establishing roots in Denmark and benefiting from
the residence permit, including their language qualifications,
education and training, work experience, family situation, network,
age and motivation, must be emphasised unless particular reasons make
it inappropriate.
5. Unless particular reasons make
it inappropriate, it must be made a condition for a residence permit
under subsections 1 to 3 that the alien assists in a special health
examination and consents to the health information being transmitted
to the Danish Immigration Service and the local council of the
municipality to which the alien is allocated, and signs a declaration
concerning the conditions for resettlement in Denmark.
6. The Minister of Refugee,
Immigration and Integration Affairs decides the overall distribution
of the aliens to be issued with a residence permit under subsections
1 to 3.
26. Before
1 July 2004 section 9, subsection 1 (ii) had the following wording:
Section 9
1. Upon application, a residence permit may be issued
to: -
(i) ....
(ii) an
unmarried child of a person permanently resident in Denmark or of
that person's spouse, provided that the child lives with the person
having custody of him or her and has not started his or her own
family through regular cohabitation, and provided that the person is
permanently resident in Denmark;
As from 1 July 2004 section 9
had the following wording:
Section 9
1. Upon application, a residence permit may be issued
to: -
(i) ....
(ii) an unmarried child under the age of 15 of a person
permanently resident in Denmark or of that person's spouse, provided
that the child lives with the person having custody of him or her and
has not started his or her own family through regular cohabitation,
and provided that the person is permanently resident in Denmark:
a. is a Danish national;
b. is a national of one of the other Nordic countries;
c. is issued with a residence permit under section 7 or
8; or
d. is issued with a permanent residence permit or a
residence permit with a possibility of permanent residence.
(iii) ...
The
age limit referred to in section 9, subsection (ii) was reduced from
18 to 15 years old by Act no. 427 of 9 June 2004. The amendment
entered into force on 1 July 2004. The following appears from the
explanatory notes:
“It has turned out that some parents living in
Denmark send their children back to the parents' country of origin or
a neighbouring country on so-called “re-education journeys”
to allow them to be brought up there and be influenced by the values
and norms of that county. This particularly occurs in situations
where the child has social problems in Denmark. Moreover, there are
examples of parents who consciously choose to let a child remain in
his or her country of origin, either together with one of the parents
or with other family members, until the child is nearly grown up,
although the child could have had a residence permit in Denmark
earlier. The result of this is that the child grows up in accordance
with the culture and customs of its country of origin and is not
influenced by Danish norms and values during its childhood. In the
Government's view, under-age aliens who will live in Denmark should
come to Denmark as early as possible and spend the longest period of
their childhood in Denmark in consideration of the child and for
integration reasons. Similarly, children and young aliens who already
live in Denmark should grow up here, to the extent possible, and not
in their parents' country of origin. Against that background, the
Government finds that the age limit for under-age children's
entitlement to family reunification should be reduced from 18 to 15
years. The purpose of such reduction of the age limit for family
reunification of children is to counteract both re-education journeys
and the cases in which the parents consciously choose to let a child
remain in its country of origin until the child is nearly grown up.
However, a residence permit will still have to be issued
to children over 15 years of age based on an application for family
reunification if a refusal would be contrary to article 8 of the
Convention... In cases where refusal of family reunification will be
contrary to Denmark's treaty obligations, and where section 9,
subsection 1 (ii), of the Aliens Act does not allow for family
reunification, a residence permit will thus have to be issued under
section 9c, subsection 1, of the Aliens Act...
In cases where the child has spent by far the largest
part of his or her childhood in Denmark, and where the ties with the
parents' country of origin are very poor, including where the child
has attended school in Denmark only, or where the child speaks
Danish, but not the language spoken in the parents' country of
origin, regard for the best interest of the child might also imply,
in these circumstances, that family reunification in Denmark must be
granted. Circumstances may also exist in other situations which make
it cogently appropriate to grant a residence permit in consideration
of the best interest of the child even though the child is 15 years
old or more at the time of the application.
Furthermore,
the Aliens Act set out:
Section 9c
1. Upon application, a residence permit may be issued to
an alien if exceptional reasons make it appropriate, including regard
for family unity...
Section 17
1. A residence permit lapses when the alien gives up his
residence in Denmark. The permit also lapses when the alien has
stayed outside Denmark for more than 6 consecutive months. Where the
alien has been issued with a residence permit with a possibility of
permanent residence and has lived lawfully for more than 2 years in
Denmark, the residence permit lapses only when the alien has stayed
outside Denmark for more than 12 consecutive months. The periods here
referred to do not include absence owing to compulsory military
service or any service substituted for that.
2. Upon application, it may be decided that a residence
permit must be deemed not to have lapsed for the reasons given in
subsection 1.
3. ...
Section 30
1. An alien who is not, under the rules of Parts I and
III to Va, entitled to stay in Denmark, must leave Denmark.
2. If the alien does not leave Denmark voluntarily, the
police must make arrangements for his departure. The Minister of
Refugee, Immigration and Integration Affairs lays down more detailed
rules in this respect.
3. ...
Section 31
1. An alien may not be returned to a country where he
will be at risk of the death penalty or of being subjected to torture
or inhuman or degrading treatment or punishment, or where the alien
will not be protected against being sent on to such country.
2. An alien falling within section 7(1) may not be
returned to a country where he will risk persecution on the grounds
set out in Article 1 A of the Convention relating to the Status of
Refugees (28 July 1951), or where the alien will not be protected
against being sent on to such country. This does not apply if the
alien must reasonably be deemed a danger to national security or if,
after final judgment in respect of a particularly dangerous crime,
the alien must be deemed a danger to society, but see subsection 1.
Section 46
1. Decisions pursuant to this Act are made by the
Immigration Service, except as provided by sections 9(19) and (20),
46a to 49, 50, 50a, 51(2), second sentence, 56a, (1) to (4), 58i and
58j, but see section 58d, second sentence.
2. Apart from the decisions mentioned in sections 9g(1),
11d, 32a, 33, 34a, 42a(7), first sentence, 42a (8), first sentence,
42b(1), (3) and (7) to (9), 42d(2), 46e, 53a and 53b, the decisions
of the Immigration Service can be appealed to the Minister of
Refugee, Immigration and Integration Affairs ...
Section 52
1. An alien who has been notified of a final
administrative decision made under section 46 may request, within 14
days after the decision has been notified to the alien, that the
decision is submitted for review by the competent court of the
judicial district in which the alien is resident or, if the alien is
not resident anywhere in the Kingdom of Denmark, by the Copenhagen
City Court, provided that the subject matter of the decision is:
(i) refusal of an application for a residence permit
with a possibility of permanent residence under section 9, subsection
1 (ii);
(ii) lapse, revocation, or refusal of renewal of such
permit;
...
2. The case must be brought before the court by the
Danish Immigration Service, which shall transmit the case to the
court, stating the decision appealed against and briefly the
circumstances relied on, and the exhibits of the case.
3. The court shall see that all facts of the case are
brought out and shall itself decide on examination of the alien and
witnesses; procuring of other evidence; and whether proceedings are
to be heard orally. If the alien fails without due cause to appear in
court, the court shall decide whether the administrative decision
appealed against is to be reviewed without the alien being present or
the matter is to be dismissed or proceedings stayed.
4. If found necessary by the court, and provided that
the alien satisfies the financial conditions under section 325 of the
Administration of Justice Act, counsel must be assigned to the alien,
except where he himself has retained counsel.
...
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that the refusal to reinstate her residence
permit in Denmark was in breach of Articles 3 of the Convention,
which reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Admissibility
The
applicant pointed out that she had raised her fear of being returned
to Somalia in the questionnaire of 12 July 2007. It had thus been
open to the immigration authorities to consider the said
questionnaire as an application for asylum. In any event she
maintained that an asylum application was inappropriate and
irrelevant to the substance of her claim which was centred on the
refusal to re instate her residence permit.
The
Government contended that this complaint should be declared
inadmissible due to non-exhaustion of domestic remedies because the
applicant had failed to raise before the relevant Danish authorities,
either in form or substance, the complaint made to the Court.
They
pointed out that a deportation was always subject to the conditions
in section 31, subsection 1, of the Aliens Act according to which an
alien may not be returned to a country where he will be at risk of
the death penalty or of ill treatment.
The
judicial review that took place in the present case under section 52
of the Aliens Act as to the lapse of residence permit and on family
reunification did not include an assessment of the possible risk upon
return to Somalia.
Moreover,
when the decisions in dispute were issued, the authorities were not
aware that the applicant had re entered Denmark illegally. They
assumed that she was still in Kenya and therefore did not go further
into the question of deportation. Accordingly, it was only later that
the applicant was advised of the possibility of submitting an
application for asylum under section 7 of the Aliens Act, of which
she did not avail herself.
Finally,
for the sake of completeness, the Government submitted that if the
applicant wished to return to Kenya, she would have to apply to enter
that country herself; the immigration authorities were not in a
position to apply for her.
The Court reiterates that the purpose of the rule on
exhaustion of
domestic remedies is to afford the Contracting States the opportunity
to prevent or put right the violations alleged against them before
those allegations are submitted to the Court (see, among many other
authorities, Selmouni v. France [GC], no. 25803/94, § 74,
ECHR 1999-V).
Under
Danish law the question of whether an alien risks the death penalty
or being subjected to torture or inhuman or degrading treatment or
punishment in case of return to his country of origin is examined by
the Immigration Service and, on appeal, by the Refugee Appeals Board.
During
her stay in Denmark, the applicant has not applied for asylum, even
though the Ministry of Refugee, Immigration and Integration Affairs,
in their letter of 27 January 2010, in addition to advising the
applicant of her duty to leave Denmark, also advised her of the
possibility of submitting an application for asylum under section 7
of the Aliens Act. It was specified that an application should be
submitted in person to the Immigration Service or to the police. The
applicant did not avail herself of that possibility.
Accordingly,
the Danish authorities have not had the opportunity to consider
whether the applicant would risk being subjected to treatment
contrary to Article 3 upon return to Somalia.
It
follows that this part of the application is inadmissible for
non exhaustion of domestic remedies within the meaning of
Article 35 § 1 of the Convention and must be rejected
pursuant to Article 35 § 4.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant further complained that the refusal to reinstate her
residence permit in Denmark was in breach of Articles 8 of the
Convention, which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
The
Government contested that argument.
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3(a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
The
applicant maintained that the Danish authorities' decision to refuse
to reinstate her residence permit had been disproportionate to the
aim pursued. She grew up in Denmark, spoke the language, went to
school there and had her close family there. Accordingly, Denmark was
the only place where she could develop aspects of her personality and
relationships with others that were vital to private life.
In
the applicant's view, the Danish authorities had completely
disregarded the manner in which she had been removed as a minor from
Denmark by her father and subsequently exploited by being forced to
take care of her paternal grandmother. The applicant thus alleged
that she had been a victim of human trafficking as defined in
Article 4(a) and 4(c) of the Council of Europe Convention on
Action against Trafficking in Human Being. In such a case, where her
father's actions amounted to a criminal offence and were clearly not
in her best interests, the State had a duty to look past the exercise
of parental authority in order to protect her interest. Accordingly,
when in August 2005, the applicant, who was still a minor, applied to
re enter Denmark and the Danish authorities became aware of her
situation, they had an obligation to protect her best interest,
namely to reinstate her residence permit, allow her to resume her
education, and reunite her with her mother and siblings in Denmark.
Finally,
she maintained that in the light of the conditions in Somalia and the
considerable expense of travelling elsewhere, it could not be
expected that the applicant's future family life should take place
outside Denmark.
The
Government maintained that a fair balance had been struck between the
applicant's interest on the one hand and the State's interest in
controlling immigration on the other hand. It had been noted that the
applicant lived lawfully in Denmark from the age of seven to the age
of fifteen and thus spent a large part of her childhood there. She
had some Danish skills, and from 1995 until August 2002 she attended
various schools, from some of which she was expelled. However, it had
also been noted that the applicant had strong ties with Kenya and
Somalia. She had family there and spoke Somali fluently. The
applicant stayed in Kenya from 1991 to 1995 and from 2003 to 2005.
The applicant's father escorted her there in 2003 and visited her in
2005; there were thus no obstacles for him to enter that country.
Likewise, the applicant's mother had resided in Somalia and Kenya and
there were no obstacles for her to enter any of those countries to
exercise family life with the applicant there. The applicant's
siblings had all attained the age of majority.
In
addition, the interruption of the applicant's stay in Denmark and her
separation from her family there was caused by a conscious decision
by her parents because the applicant had problems in school and
difficulties with her parents, who disapproved of certain aspects of
her behaviour. Accordingly, apart from the applicant's own statement,
there was no evidence establishing that she was sent to Kenya for the
purpose of exploitation and that she had been a victim of human
trafficking.
As
to the applicant's allegation that she was prevented from resuming
her education, the Government pointed out that the applicant was
expelled from various schools in Denmark due to discipline problems.
Moreover, according to the applicant's mother's letter of
24 November 2005 the purpose of sending the applicant to
Kenya had been for her to attend school there, although this never
happened. The Government thus contend that the applicant's
educational problems could not be attributed to others than herself
and her parents.
In
these circumstances they found that it had not been disproportionate
to refuse to reinstate the applicant's residence permit when she
applied at the age of seventeen years and nine months, after more
than two years of absence.
Finally,
the Government noted that the applicant could submit a new
application for a residence permit based on family unification under
section 9c of the Aliens Act.
2. The Court's assessment
By way of introduction, the Court notes that the
essential object of Article 8 is to
protect the individual against arbitrary action by the public
authorities. There may in addition be positive obligation inherent in
effective “respect” for private and family life. However,
the boundaries between the State's positive and negative obligations
under this provision do not lend themselves to precise definition.
The applicable principles are, nonetheless, similar. The Court does
not find it necessary to determine whether in the present case the
impugned decision, to refuse to reinstate the applicant's residence
permit, constitutes an interference with her exercise of the right to
respect for her private and family life or is to be seen as one
involving an allegation of failure on the part of the respondent
State to comply with a positive obligation. In the context of both
positive and negative obligations the State must strike a fair
balance between the competing interests of the individual and of the
community as a whole.
However, in both contexts the State enjoys a certain
margin of appreciation. Moreover, Article 8
does not entail a general obligation for a State to respect
immigrants' choice of the country of their residence and to authorise
family reunion in its territory. Nevertheless, in a case which
concerns family life as well as immigration, the extent of a State's
obligations to admit to its territory relatives of persons residing
there will vary according to the particular circumstances of the
persons involved and the general interest (see inter alia
Abdulaziz, Cabales and Balkandali v. the United Kingdom,
judgment of 28 May 1985, Series A no. 94, §§
67 and 68; Gül v. Switzerland, judgment of
19 February 1996, Reports of Judgments and Decisions
1996-I, § 38; Ahmut v. the Netherlands,
judgment of 28 November 1996, Reports of Judgments and
Decisions 1996-VI, § 63 and no. 13594/03, and
Priya v. Denmark (dec.), 6 July 2006.
The
applicant was still a minor when, on 9 August 2005, she applied to be
reunited with her family in Denmark. She had reached the age of
majority when the refusal to reinstate her residence permit became
final on 19 January 2008, when leave to appeal to the Supreme
Court was refused. The Court has accepted in a number of cases
concerning young adults who had not yet founded a family of their own
that their relationship with their parents and other close family
members also constituted “family life”. Furthermore,
Article 8 also protects the right to establish and develop
relationships with other human beings and the outside world and can
sometimes embrace aspects of an individual's social identity, it must
be accepted that the totality of social ties between settled migrants
and the community in which they are living constitutes part of the
concept of “private life” within the meaning of Article
8. Regardless of the existence or otherwise of a “family life”,
the expulsion of a settled migrant therefore constitutes an
interference with his or her right to respect for private life. It
will depend on the circumstances of the particular case whether it is
appropriate for the Court to focus on the “family life”
rather than the “private life” aspect (Maslov v.
Austria [GC], no. 1638/03, §§ 62-63, 23 June 2008.
Accordingly,
the measures complained of interfered with both the applicant's
“private life” and her “family life”.
Such
interference will be in breach of Article 8 of the Convention unless
it can be justified under paragraph 2 of Article 8 as being “in
accordance with the law”, as pursuing one or more of the
legitimate aims listed therein, and as being “necessary in a
democratic society” in order to achieve the aim or aims
concerned.
It
is not in dispute that the impugned measure had a basis in domestic
law, namely sections 17 and 9 subsection 1 (ii), and pursued the
legitimate aim of immigration control.
The
main issue to be determined is whether the interference was
“necessary in a democratic society” or more concretely
whether the Danish authorities were under a duty to reinstate the
applicant's residence permit after she had been in Kenya for more
than two years.
The
Court observes that the applicant spent the formative years of her
childhood and youth in Denmark, namely from the age of seven to
fifteen years old. She speaks Danish and received schooling in
Denmark until August 2002. Her divorced parents and older siblings
live in Denmark. The applicant therefore had social, cultural and
family ties in Denmark.
The
applicant also had social, cultural and family ties in Kenya and
Somalia. She was born in Somalia and lived there from 1987 to 1991.
She resided in Kenya from 1991 to 1995. The applicant spoke Somali.
It was unclear whether the applicant had family in Somalia but
certain that she had family in Kenya. The applicant returned to Kenya
in 2003 and took care of her parental grandmother. Her application in
August 2005 to re-enter Denmark was refused but she re-entered
the country illegally, apparently in June 2007. The applicant's
father was a recognised refugee from Somalia. He visited Kenya at
least twice, namely in 2003 and 2005. The second time he remarried
there. There was no indication that the applicant's mother could not
enter Somalia and Kenya.
The
applicant alleged that she had been a victim of human trafficking and
that this fact was ignored by the Danish authorities in their
decision to refuse to reinstate her residence permit. The Court
notes, however, that the applicant never reported being a victim of
human trafficking to the police or to any other Danish authority,
including the Danish Embassy in Nairobi, or to the lawyer
representing her before the courts in Denmark. Moreover, although the
applicant's mother, who shared custody with the applicant's father
may not have agreed to the length of the applicant's stay in Kenya or
to the fact that the applicant did not receive any schooling there,
there are no elements indicating that she did not agree to the
applicant being accompanied by her father to Kenya in August 2003
with a view to residing there temporarily. Nor did the applicant's
mother at any time subsequently express openly that the applicant had
been a victim of human trafficking. The Danish authorities had thus
no reason to take this allegation into account.
The
applicant also maintained that the Danish authorities had a duty to
look past the exercise of parental authority in order to protect her
interest and that it was obvious that her father's decision to send
her to Kenya was not in her best interest.
The
Court reiterates in this connection that the exercise of parental
rights constitutes a fundamental element of family life, and that the
care and upbringing of children normally and necessarily require that
the parents decide where the child must reside and also impose, or
authorise others to impose, various restrictions on the child's
liberty (see, for example Nielsen v. Denmark, 28 November
1988, § 61, Series A no. 144).
It
also reiterates that for a settled migrant who has lawfully spent all
or the major part of his or her childhood and youth in a host
country, very serious reasons are required to justify expulsion (see,
Maslov v. Austria [GC], quoted above, § 75). In the
present case the applicant was refused restoration of her lapsed
residence permit, as opposed to being expelled due to having
committed a crime. Nevertheless, it is undisputed that she spent the
formative years of her childhood and youth in Denmark, namely from
the age of seven to fifteen years old, that she spoke Danish, that
she had received schooling in Denmark until August 2002, and that all
her close family remained in Denmark. In these circumstances, the
Court also considers that very serious reasons were required to
justify the authorities' refusal to restore the applicant's residence
permit, when she applied from Kenya in August 2005.
The
Government pointed out that the 12 months time-limit for stay abroad
set out in section 17, subsection 1, of the Aliens Act had not
changed since the applicant's first entry into Denmark in 1995.
Moreover, with effect from 1 July 2004, section 9, subsection (ii),
of the Aliens Act was amended, limiting the right to family
re-unification to children under 15 years instead of under 18 years,
specifically to discourage the practice of some parents of sending
their children on “re-upbringing trips” for extended
periods of time to be “re-educated” in a manner their
parents consider more consistent with their ethnic origins, as it was
preferable in the legislator's view for foreign minors living in
Denmark to arrive as early as possible and spend as many of their
formative years as possible in Denmark.
The
Court does not question that the said legislation was accessible and
foreseeable and pursued a legitimate aim. The crucial issue remains
though whether, in the circumstances of the present case, the refusal
to reinstate the applicant's residence permit was proportionate to
the aim pursued.
The
Court notes in particular that the
applicant was granted a residence permit in Denmark in November 1994
and subsequently entered the country in February 1995, when she was
seven year old. Moreover, at
the relevant time the applicant had already legally spent
more than eight formative years of her childhood and youth in Denmark
before, at the age of fifteen, she was sent to Kenya, which was not
her native country. The case thus differs significantly from Ebrahim
and Ebrahim v. the Netherlands
(dec.) of 18 March 2003, in which the first applicant entered the
Netherlands with his family when he was ten years old and applied for
asylum or a residence permit. When the boy was thirteen years old,
serious tensions had developed between him and his stepfather who
disapproved of the boy's behaviour in the Netherlands. Therefore, the
boy was returned to Lebanon to stay with his maternal grandmother in
a refugee camp to become acquainted with his native country. Neither
the boy nor any members of his family had at that time been granted a
residence permit in the Netherlands. After three years in Lebanon,
having reached the age of sixteen, the boy applied in vain to return
to the Netherlands. The Court stated specifically in that case that “
that due consideration
should be given to cases where a parent has achieved settled status
in a country and wants to be reunited with her child who, for the
time being, finds himself in the country of origin, and that it may
be unreasonable to force the parent to choose between giving up the
position which she has acquired in the country of settlement or to
renounce the mutual enjoyment by parent and child of each other's
company, which constitutes a fundamental element of family life (see
Abdulaziz, Cabales and Balkandali v.
the United Kingdom, judgment of 28
May 1985, Series A no. 94, § 68). The issue must therefore
be examined not only from the point of view of immigration and
residence, but also with regard to the mutual interests of the
applicants”.
The
Court also notes that although the legislation at issue aimed
at discouraging parents from sending their children to their
countries of origin to be “re educated” in a manner
their parents consider more consistent with their ethnic origins, the
children's right to respect for private and family life cannot be
ignored.
In
the present case, the applicant maintained that she had been obliged
to leave Denmark to take care of her grandmother at the Hagadera
refugee camp for more than two years; that her stay there was
involuntary; that she had no means to leave the camp; and that her
father's decision to send her to Kenya had not been in her best
interest.
The
Ministry of Refugee, Immigration and Integration Affairs addressed
some of these issues in its decision of 1 October 2007. It stated,
among other things, “neither [the applicant] nor her parents
contacted the immigration authorities during her stay abroad, and it
has not been substantiated that illness or other unforeseen events
prevented such contact. Although the distance from Hagadera to
Nairobi is significant [485 km] and it can be assumed that [the
applicant] did not have the means to travel to Nairobi, the Ministry
finds that these circumstances did not prevent [the applicant's]
parents from contacting the immigration authorities before [the
applicant's'] departure, which was planned. ...It is stated for the
record that it was not [the applicant's] decision to leave Denmark
and stay away so long. The ministry finds that this will not lead to
a different outcome of the case as [the applicant's] parents had
custody over her at the time of her departure ... they could thus
lawfully make decisions about [her] personal circumstances...”.
The Court notes in this respect that the
immigration authorities had discretionary powers by virtue of section
9 c to issue a residence permit to the
applicant if exceptional reasons made it appropriate, including
regard for family unity and by virtue of
section 17, subsection 2 of the Aliens Act to decide that
a residence permit must have been deemed not to have lapsed for the
reasons given in subsection 1. However, under both provisions the
immigration authorities found against the applicant.
The
immigration authorities have submitted that they were not aware at
the relevant time that the applicant had re entered Denmark. The
same applied to the applicant's appointed lawyer, the City Court and
the High Court. Accordingly, the applicant was only heard in
person at the Danish Embassy in Nairobi in August 2005, when she was
seventeen years and nine months old.
73.
Moreover, the applicant's view that her father's decision to send her
to Kenya for so long had been against her will and not in her best
interest, was disregarded by the authorities with reference to the
fact that her parents had custody of her at the relevant time. The
Court agrees that the exercise of parental rights constitutes a
fundamental element of family life, and that the care and upbringing
of children normally and necessarily require that the parents decide
where the child must reside and also impose, or authorise others to
impose, various restrictions on the child's liberty (see, for example
Nielsen v. Denmark,
28 November 1988, § 61, Series A no. 144). Nevertheless, in
respecting parental rights, the authorities cannot ignore the child's
interest including its own right to
respect for private and family life.
The
applicant's view on her right to respect for family life was also
disregarded by, for example, the Migration Service with reference to
the fact that she had not seen her mother for four years; that it had
been her mother's voluntary decision to send the applicant to Kenya;
and that the applicant could still enjoy family life with her mother
to the same extent as before. In the Court's
view, however, the fact that the applicant's mother did not visit the
applicant in Kenya, or that mother and child apparently had very
limited contact for four years, can be explained by various factors,
including practical and economical restraints, and can hardly lead to
the conclusion that the applicant and her mother did not wish to
maintain or intensify their family life together.
Finally,
in May 2003, when the applicant was fifteen years old and sent to
Kenya, even if section 17 of the Aliens Act set out that the
applicant's residence permit may lapse after twelve consecutive
months abroad, the applicant could still apply for a residence permit
in Denmark by virtue of Section 9, subsection 1(ii) of the Aliens Act
in force at the relevant time. The latter provision was amended,
however, as from 1 July 2004, when the applicant was still in
Kenya, reducing the right to family reunification to children under
fifteen years old instead of eighteen years old.
The Court does not question the amended
legislation as such but notes that the applicant and her parents
could not have foreseen this amendment when they decided to sent the
applicant to Kenya or at the time when the twelve month lime-limit
expired.
Having
regard to all the above circumstances, it cannot be said that
the applicant's interests have sufficiently been taken into account
in the authorities' refusal to reinstate her residence permit in
Denmark or that a fair balance was struck between the applicants'
interests on the one hand and the State's interest in controlling
immigration on the other.
There
has accordingly been a violation of Article 8 of the Convention.
III. ALLEGED VIOLATION OF ARTICLES 4, 13 AND 14 OF THE
CONVENTION AND OF ARTICLE 2 OF PROTOCOL NO.1 TO THE CONVENTION.
The
applicant has also contended that the refusal to reinstate her
residence permit in Denmark contravened Article 4, 13 and 14 of
the Convention and of Article 2 of Protocol No. 1 to the Convention.
The
Court notes that under the notion of Article 35 § 1 of the
Convention, it may only deal with a matter after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law. This condition is not met by the mere
fact that an applicant has submitted his or her case to the various
competent courts. It is also necessary for the complaint brought
before the Court to have been raised by the applicant, at least in
substance, during the proceedings in question. On this point the
Court refers to its established case-law. In the present case, the
applicants failed to raise either in form or in substance the above
complaints that are made to the Court.
The
Court notes that the applicant failed to raise, either in form or
substance, before the domestic courts the complaint made to it under
Article 4, 13 and 14 of the Convention and of Article 2 of
Protocol No. 1 to the Convention.
It
follows that this part of the application is inadmissible for
non-exhaustion of domestic remedies within the meaning of
Article 35 § 1 of the Convention and must be
rejected pursuant to Article 35 § 4.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 15,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government found the amount excessive and submitted that finding a
violation would in itself constitute adequate just satisfaction.
The
Court awards the applicant EUR 15,000 in respect of non-pecuniary
damage.
B. Costs and expenses
The
applicant also claimed 8,625 GBP pounds (equivalent to EUR 10,435)
for the costs and expenses incurred before the Court.
The
Government found the amount excessive and noted that the applicant
had failed to apply for legal aid under the Danish Legal Aid Act (Lov
1999-12-20 nr. 940 om retshjælp til indgivelse og førelse
af klagesager for internationale klageorganer i henhold til
menneskerettigheds-konventioner) according to which applicants
may be granted free legal aid for their lodging of complaints and the
procedure before international institutions under human rights
conventions.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession, the above criteria, and awards made
in comparable cases against Denmark (see, among others,
Hasslund v. Denmark, no. 36244/06, § 63, 11 December
2008 and Christensen v. Denmark, no. 247/07, § 114,
22 January 2009), the Court considers it reasonable to award the
sum of EUR 6,000 covering costs for the proceedings before the
Court.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning Article 8
admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
8 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
EUR 15,000
(fifteen thousand euros) in respect of non-pecuniary damage;
EUR 6,000 (six
thousand euros), in respect of costs and expenses;
any tax that may be
chargeable to the applicant on the above amounts;
(b) that
these sums are to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 14 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
