Judgment delivered on 22 December 2016
The Immigration Appeals Board
Intervener for A and B:
The Danish Institute for Human Rights
Refusal of application for family reunification on the grounds that the spouse living in Denmark had received cash benefits within the last three years did not amount to discrimination
Foreign citizen A who was married to Danish citizen B had applied for family reunification in accordance with section 9(1)(1) of the Danish Aliens Act. According to section 9(5) of the Aliens Act, unless exceptional reasons conclusively make it inappropriate, including regard for family unity, it must be made a condition for family reunification that the person living in Denmark has not received social security benefits, including cash benefits, within the last three years. The Immigration Appeals Board refused A and B’s application for family reunification on the grounds that B, who was disabled after a car accident, received cash benefits.
The case concerned whether the Board's refusal to grant a residence permit was in breach of the prohibition against discrimination in article 14 of the European Human Rights Convention, cf. article 8, or the UN Disability Convention.
The Supreme Court found that, at the time of the Board’s decision, B’s situation was comparable to the situation of people who are not disabled and who have received cash benefits within the past three years. The Supreme Court gave importance to the fact that B had the option of finding a ‘flexible job’ and thus had a reasonable prospect of meeting the self-support requirement in section 9(5) of the Aliens Act, although his disability probably barred him from finding employment on normal terms.
As B was thus in the same position as people without a disability who had received cash benefits, B had not been discriminated against in violation of article 14 of the European Human Rights Convention, cf. article 8, or the UN Disability Convention.
Accordingly, the Supreme Court gave judgment in favour of the Immigration Appeals Board.
The High Court had reached a different conclusion.