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Supreme Court of Denmark

Rejection of a residence permit on humanitarian grounds not invalid 

Case no. 136/2009
Judgment 30 March 2011
 

A
and
B
vs.
The Ministry of Refugees, Immigration and Integration Affairs

Rejection of a residence permit on humanitarian grounds not invalid

A and B and their children, who are all citizens from Kosovo, entered Denmark on 10 January 2002 and applied for asylum. When this application was rejected, A and B applied for a residence permit on humanitarian grounds. On 31 March 2003, the Ministry of Integration Affairs rejected the application for a residence permit on humanitarian grounds. On 15 March 2006, A and B and their children were granted a one-year residence permit on humanitarian grounds, because A suffered from a very serious heart disease requiring medical treatment which was not available in their country of residence. On 22 June 2007, the permit was extended by one year to 15 March 2008. On 7 July 2008, the Ministry of Integration Affairs rejected an application for extension of the residence permit on the grounds that while A still suffered from the very serious heart disease, the required treatment was now available in the country of residence. According to the Ministry’s information, the monthly costs for medicine and check-ups would be DKK 552, which amount A and B, in the Ministry’s opinion, would be able to cover. The Ministry’s decision was referred to the courts of law by A and B.

The Supreme Court noted that pursuant to s. 9b(1) of the Danish Aliens (Consolidation) Act on residence permits on humanitarian grounds, the granting of such permit is left to the authorities’ discretion, and that the Ministry of Integration Affairs’ discretion may be disregarded in some cases, for example in the event of inadequate evidence in the case. The Supreme Court agreed that regard could be had to the required treatment not being available in the country of residence based on Ministry’s examination of A’s need for treatment and the range of treatments available in the country of residence. In this connection, it was decisive that the treatment was available in the country of residence and not whether it was available in A’s local area. Furthermore, the Supreme Court held that the Ministry’s calculation of the costs for medicine and check-ups was based on a sound examination of the costs. With regard to A’s ability to cover the costs for medicine and check-ups, the Supreme Court noted that it was in accordance with the practice of the Ministry that the scope of the concrete examination of the relevant person’s financial abilities depended on the amount of the required treatment costs. The Ministry’s decision was based on an assessment of A’s financial and social situation. Supporting the Ministry’s decision was information on the living conditions of the population in Kosovo and on A’s situation and his family network. As the self-payment was only DKK 552 a month, the Supreme Court did not find that there was basis for criticising the Ministry for not having carried out more detailed examinations of A’s situation in terms of work and income etc. Although the Ministry could have provided a more detailed description of the actual basis for the assessment of A’s financial abilities, the Supreme Court did not find that the Ministry had made its decision on an inadequate factual basis. (Dissenting opinion)

The High Court had reached the same conclusion.

 

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