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Supreme Court of Denmark

The Ministry of Integration Affairs' rejection of family reunification not invalid 

Case no. 253/2010
Judgment 10 August 2011

The Ministry of Refugees, Immigration and Integration Affairs

 A, an Afghan citizen residing in Pakistan, married an Afghan citizen residing in Denmark, B, in December 2005. B had entered Denmark in November 1999 and had the status of convention refugee. On 7 September 2006, A received a final rejection of family reunification with B in Denmark on the grounds that their aggregate ties with Denmark were not stronger than their aggregate ties with Afghanistan. In addition, it was not considered that there were any special personal reasons for why A should still be granted a residence permit, cf. s. 9 of the Danish Aliens Act. The Ministry of Refugees, Immigration and Integration Affairs (the Ministry) gave importance to the fact that it had no information on any personal affairs which could give rise to the conclusion that B and the couple's mutual child could not enter and settle in Afghanistan to live as a family there with A. As basis for this assessment, the Ministry referred to a statement from the Danish Immigration Service, the Asylum and Visa Department, on the current situation in Afghanistan.

After having received the rejection, A filed a lawsuit claiming that the Ministry should recognise that its decision of 7 September 2006 was unlawful and invalid and that the case should, thus, be remitted to the Ministry for a new hearing. The Ministry moved for rejection of the claim.

 The Supreme Court found for the Ministry.

The Supreme Court stated that the present case was heard in accordance with the rules provided in a notice from the Danish Immigration Service, according to which cases where the spouses were married after the resident spouse's entry into Denmark were subject to an assessment of whether, considering the current situation, the resident spouse was (still) at risk of persecution justifying asylum in his home country, and it was a condition that this question returned a negative answer in the circumstances, regardless of whether the conditions for cancelling the resident's refugee status could not be regarded as having been met. The rules in the notice on procedure and assessment criteria could be regarded as having been endorsed by the Danish Parliament in connection with the 2005 amendment of the Aliens Act, and the Supreme Court did not find that there was basis for concluding that the rules were in contravention of Article 8 of the European Human Rights Convention or other provisions contained in international conventions.

Also, the Supreme Court did not consider that there was basis for setting aside the Ministry's conclusion in the assessment of whether the resident spouse would risk persecution or abuse justifying asylum when returning to his home country. 

The High Court had reached the same conclusion.

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