CASE OF OSMAN v. DENMARK
Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen
6. The applicant was born in Somalia on 1 November 1987 as the youngest of five siblings. Currently she lives in Esbjerg. 7. From 1991 to 1995 the applicant lived with her family in Kenya. 8. In April 1994 the applicant’s father and a sister were granted asylum in Denmark. 9. 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. 10. 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 northeastern 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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...” 19. 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. 20. 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. 21. Leave to appeal to the Supreme Court (Højesteret) was refused on 19 January 2008. 22. 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. 23. So far the applicant has not applied for asylum. 24. 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 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. 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: 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; 27. As from 1 July 2004 section 9 had the following wording: 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) ... 28. 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. 29. Furthermore, the Aliens Act set out: 1. Upon application, a residence permit may be issued to an alien if exceptional reasons make it appropriate, including regard for family unity... 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. ... 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. ... 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. 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 ... 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. ...