A and B
The Ministry of Refugees, Immigration and Integration Affairs
A refusal of family reunification with reference to the 28-year rule and the affiliation requirement was not invalid, and neither the European Human Rights Convention nor the European Convention on Nationality had been violated
A, a Danish citizen, married the Ghanian citizen, B, in 2003. A was born in Togo in 1971, but came to Denmark in 1993. After nine years in this country, he became a Danish citizen in 2002. Immediately after being married in Ghana, A and B applied for spouse reunification in Denmark, but in August 2004, they received a final refusal on the grounds that their aggregate ties with Denmark were not stronger than their aggregate ties with Ghana, cf. S. 9(7) of the Danish Aliens (Consolidation) Act. In its decision, the Ministry of Integration gave importance to the facts that B had always lived in Ghana and had family there, that A had some ties with Ghana where he had attended school for 10 years, and that the family could legally settle in Ghana provided that A obtained employment there.
After having received the refusal, A and B instituted legal proceedings claiming that the refusal was invalid because it was in contravention of Article 8 of the European Human Rights Convention. In the alternative, if the refusal was not in contravention of Article 8, they claimed that it was in contravention of the prohibition against discrimination in Article 14, cf. Article 8, and that they should, thus, be granted family reunification in Denmark without having to fulfil the affiliation requirement in S. 9(7) of the Act. In this connection, A and B also stated that, under the rules of the Aliens Act, expatriate Danes were not required to have actual ties with Denmark, and that a comparison between expatriate Danes and Danish citizens who acquired Danish citizenship at a later point in life showed that the 28-year rule resulted in unmotivated discrimination. Thus, the 28-year rule meant that A would only be exempted from the affiliation requirement in 2030 after having attained the age of 59.
The Supreme Court found that the Ministry's refusal of granting a residence permit to A was not in contravention of Article 8 of the European Human Rights Convention, referring to the fact that Article 8 does not impose any general obligation on the contracting parties to respect an alien's choice of country of residence in connection with marriage or otherwise to grant permission to family reunification and to the fact that there was no basis for setting aside the Ministry of Integration's decision that the couple's aggregate ties with Ghana were stronger than their ties with Denmark. Also, the Supreme Court found that the Ministry of Integration's decision could not be deemed to be in contravention of Article 14, cf. Article 8, of the Human Rights Convention, as the case law of the European Court of Human Rights, including its decision in Abdulaziz, Cabales and Balkandali vs United Kingdom of 28 May 1985, showed that there was no basis for concluding that the 28-year rule had led to discrimination in contravention of the Convention vis-à-vis A, cf. Article 14 of the Convention on legitimate aim and proportionality. In addition, the Supreme Court found that there was no basis in the European Convention on Nationality of 6 November 1997 (Article 5(2)) to widen the scope of the prohibition against discrimination in Article 14, cf. Article 8, of the European Convention on Human Rights relative to the above-mentioned decision. (Dissenting opinion).
The High Court had reached the same conclusion.