The author of the communication is N.E., a national of Morocco born in 1997 and currently residing in Denmark. She claims that the State Party has violated her rights under articles 23 and 24 of the Covenant. The Optional Protocol entered into force for the State Party on 23 March 1976. The author is represented by counsel.
On 20 March 2019, when registering the present communication, the Committee, acting through its Special Rapporteurs on new communications and interim measures, decided not to request interim measures under rule 94 of its rules of procedure.
Facts as submitted by the author
The author was born in 1997 in Morocco. The author’s father, H.M., and mother, H.B., separated shortly after she was born; she lived with her father and her father’s family from the age of one month. After the death of her father, in 2010, she lived with her paternal aunt, T.E. The author did not have contact with her mother until the summer of 2013.
The author’s mother, H.B., married a citizen of Denmark on 8 May 2002 and entered Denmark on 1 October 2002. H.B. was granted a residence permit in Denmark; she had two children with her Danish husband. She visited Morocco regularly, but was prevented, by H.M.’s family, from seeing her daughter4 until the summer of 2013, when H.M.’s sister informed her of the death of H.M. and the sister’s wish to transfer the custody of the author to H.B. Subsequently, H.B. travelled to Morocco to have a passport issued for the author and to submit a visa application for the author to enter Denmark. The author obtained the visa and entered Denmark on 18 November 2014.
- The author submits that, as a child, she was “in every way prevented” from having contact with her mother, owing to both the “traditional position” of the author’s father and his family, and the parents’ divorce. ↩
On 5 December 2014, an application for family reunification was submitted to the Danish Immigration Service. On 18 May 2015, the application was rejected on the basis that no special grounds to grant a residence permit could be established under the Aliens (Consolidation) Act, that denial of residence did not violate the respect for the unity of the family, or the best interests of the author, that the author’s mother did not submit the application without delay, since she had re-established contact with her daughter during the summer of 2013, but had applied for family reunification on 5 December 2014 only, and that there was no special relationship between the mother and the daughter after they had lived apart for more than 16 years, regardless of the alleged fact that the mother had been prohibited by her late husband’s family from having contact with her daughter. The Immigration Service also found that the author had family in Morocco who could take care of her and that, as the author was over the age of 17 at the time of the application, her needs for care and parental love were less than that of a younger child.
On 21 December 2015, the Immigration Appeals Board upheld the decision of the Immigration Service. The decision of the Board was not delivered to the author’s counsel in compliance with the applicable procedural regulations; instead, it was sent to the author herself. Therefore, the author requested that her case be reconsidered, on the basis that the decision had not been delivered to her in compliance with the applicable procedural regulations. In her request, the author also asked the Board to reconsider its decision on the basis of the jurisprudence of the Court of Justice of the European Union,5 the European Court of Human Rights6 and the Human Rights Committee,7 which the author considered relevant to her case.
The Immigration Appeals Board reconsidered the case and, in its decision dated 1 November 2016, held that there was no reason to reconsider the decision of the Board dated 21 December 2015, given that the author had failed to demonstrate new information that would necessitate a change to the Board’s decision, that the author’s case differed from the aforementioned cases before the Court of Justice of the European Union, the European Court of Human Rights and the Human Rights Committee, in particular because N.E. was 17 years and 8 months of age and thereby close to becoming an adult at the time of the application for family reunification, and that she had not had contact with her mother until the summer of 2013, when she was 16 years of age.
Complaint
The author claims that the rejection of her application for a residence permit for the purpose of family reunification and the order for her to leave Denmark constitutes a violation by the State Party of her rights to family life and protection, as set out in articles 23 and 24 of the Covenant. The author also claims that the State Party violated her rights under articles 3 and 9 of the Convention on the Rights of the Child.
The author claims that her case involves extraordinary circumstances because she was separated from her mother after her parents divorced, when she was only one month old, and her mother was prevented from contacting her for many years. The author argues that neither she nor her mother should be blamed for the previous lack of contact, in view of these extraordinary circumstances. The author also argues that her mother’s documented health conditions, such as serious heart problems, which she had experienced for several years, as well as her family responsibilities in relation to her two small children from her marriage in Denmark, had prevented her from initiating a court case or other measures in Morocco to establish contact with her daughter. The author further claims that the State Party did not balance its interests in regulating its immigration policy against its obligation to respect the author’s rights to family life and protection.
The author argues that, while she was 16 years old when she re-established contact with her mother, and 17 years and 8 months when an application for family reunification was submitted, teenagers also need guidance, support and parental love, which cannot be substituted with a possible connection to distant relatives or a national childcare system in the author’s country of origin.
The author submits that all available domestic remedies have been exhausted, as the decision of the Immigration Appeals Board of 1 November 2016 cannot be appealed administratively. The author claims that the judicial review procedure for appeals of decisions of the Immigration Appeals Board is not accessible or effective, given that her application for free legal aid was rejected, and that launching a judicial review before the court does not have the effect of suspending her pending deportation.
State Party’s observations on admissibility and the merits
On 20 September 2019, the State Party submitted its observations on the admissibility and merits of the author’s communication.
The State Party notes that the Immigration Service rejected the author’s application for family reunification by virtue of section 9c (1) of the Aliens (Consolidation) Act. The State Party also notes that the author appealed the decision of the Immigration Service to the Immigration Appeals Board, which informed the author that the appeal did not grant suspensive effect in regard to the deadline for departure, and that the author had to leave Denmark immediately, in compliance with the decision of the Immigration Service. On 21 December 2015, the Board upheld the decision, and on 1 November 2016, it rejected a request to reopen and reconsider the case.
The State Party submits that, pursuant to section 63 of the Constitution of Denmark, decisions of the Immigration Appeals Board by which an application for residence is refused under section 9 (1) (i), with reference to section 9 (8), of the Aliens (Consolidation) Act may be brought before the Danish courts. Therefore, the State Party states that the author has had the opportunity to bring the 21 December 2015 and 1 November 2016 decisions of the Board before the Danish courts. Therefore, the State Party submits that, by having refrained from bringing the decisions of the Board before the courts, the author has failed to exhaust all available domestic remedies and that therefore the communication should be considered inadmissible pursuant to article 5 (2) (b) of the Optional Protocol. The State Party further observes that the fact that the author has been refused free legal aid cannot lead to a different outcome, and invokes the jurisprudence of the Committee that financial considerations and doubts about the effectiveness of domestic remedies do not absolve an author from exhausting domestic remedies.8
- P.S. v. Denmark (CCPR/C/45/D/397/1990), para. 5.4; Faurisson v. France (CCPR/C/58/D/550/1993), para. 6.1; and Warsame v. Canada (CCPR/C/102/D/1959/2010), para. 7.6. ↩
The State Party submits that the Committee is competent only to hear complaints regarding violations of the Covenant, in accordance with articles 2 and 3 of the Optional Protocol. The State Party acknowledges its obligation to take into account the international obligations of Denmark, including those arising from the Convention on the Rights of the Child, when exercising its powers under the Aliens (Consolidation) Act. However, it notes that the Human Rights Committee does not have competence to decide whether a State has violated the Convention on the Rights of the Child.
If the Committee finds no basis for considering the communication inadmissible pursuant to article 5 (2) (b) of the Optional Protocol, the State Party contends that the author has failed to establish a prima facie case for the purpose of admissibility of her communication under articles 23 and 24 of the Covenant, and that the communication should therefore be considered inadmissible as it is manifestly unfounded. In the alternative, the State Party submits that the author’s claims are without merit, as it has not been established that the decisions made by the Immigration Appeals Board on 21 December 2015 or 1 November 2016 are in violation of articles 23 and 24 of the Covenant.
As regards the author’s claims regarding the violation of articles 23 and 24 of the Covenant, the State Party submits that the decisions by the Immigration Appeals Board were made pursuant to section 9c (1) of the Aliens (Consolidation) Act concerning, inter alia, children of Danish residents who fall outside the scope of section 9 (1) (ii) of the Act. The State Party further submits that, pursuant to section 9c (1) of the Aliens (Consolidation) Act, approval of family reunification requires exceptional reasons for persons who are 15 years of age or older. The State Party finds that the Board took all of the facts submitted by the applicant into account in its assessment. It notes that the Board attached importance to, inter alia, the age of the applicant, her attachment to Denmark and Morocco, her situation if returned to Morocco, her contact with her mother and her possibility of remaining in contact with her mother if she were returned to Morocco. The State Party also notes that the author was 17 years of age at the time of the application, that she had turned 18 by the time of the decision, and thus had become legally competent, and that she was born, and had lived her whole life, in Morocco, where she had attended school for 11 years.
The State Party submits that no positive obligation can be derived from articles 23 and 24 of the Covenant for countries other than the country of which the child is a citizen, as regards securing residence and the continued upbringing of the child. Neither do the articles include an independent immigration right for a child for the purpose of obtaining better living conditions in any country, even when the child has some connection to the country as his or her temporary country of residence.
The State Party submits that in general children are not considered to have developed an independent attachment to Denmark until after six to seven years of uninterrupted stay in the country with a residence permit during which he or she has attended a Danish institution or school. The State Party finds that applying the principle of the best interests of the child does not necessarily r entail the issuance of a residence permit, unless the case presents extraordinary circumstances.
The State Party reiterates that the author’s mother, H.B., did not see the author during a period that extended from one month after the birth of the author, in 1997, to 2013, that it was the choice of H.B., solely, to apply for residence in Denmark in 2002 and leave the author in Morocco, and that H.B. did not initiate legal steps to re-establish custody or contact with the author until she found out in 2013 – at which point the author was 16 years of age – that the author’s father had died in 2010. The State Party also notes that H.B. did not apply for reunification with the author until 12 years after she had travelled to Denmark and one and a half years after contact between the two had been re-established.
The State Party finds that H.B.’s illness creates an obligation not for Denmark, but rather for the country of which the author is a national, to ensure the conditions of upbringing. The State Party also notes that it has not been established that H.B.’s health condition was of such a nature that she was unable to initiate legal measures in Morocco to get custody of the author at an earlier point, considering that the surgery took place in 2010 and H.B.’s health condition improved such that she has been able to work ever since.
The State Party submits that the author has never received a residence permit in Denmark, and that she has stayed in Denmark on a visitor’s visa and procedural stays, and illegally The State Party finds that the author is not without a caregiver in her home country, considering that the aunt with whom she had lived before is still living in Morocco and that the author also has other family members. The State Party also notes that the author’s mother, H.B., has visited the author in Morocco on several occasions and submits that nothing prevents the author and her mother from continuing to enjoy family life through visits, as they have since re-establishing contact.
The State Party finds that the present case is not comparable to the other cases referred to by the author in her communication. In regard to the author’s reference to the Views of the Committee in El-Hichou v. Denmark, the State Party notes that the two cases are not comparable, since the author in the case of El-Hichou v. Denmark was 11 and a half years of age at the time of his application for family reunification and had had regular contact with his father, through visits, letters and phone calls. The State Party submits that the allegation that the mother had been prohibited from having contact with her daughter by her late husband’s family does not change this assessment. The State Party notes that the judgments in Genc v. Integrationsministeriet, of the Court of Justice of the European Union, and Biao v. Denmark, of the European Court of Human Rights, are also not comparable to the present case, considering that the former case concerns the approval of resident permits for children under 15 years of age, and the latter concerns the affiliation requirements for family reunification with a spouse. Finally, the State Party notes that the case of Sen v. Netherlands, of the European Court of Human Rights, is not comparable to the present case, considering that the child concerned in that case was 9 years old when the application for family reunification was submitted.
The State Party concludes that the Immigration Appeals Board considered the above factors and concluded that it would not be in violation of the international obligations of Denmark to deny family reunification. The State Party reiterates that the author was 17 years and 8 months of age at the time of the application for family reunification, that she did not have contact with her mother until the age of 16, and that, until that age, she had lived her entire life in Morocco. The State Party submits that the rejection of the author’s application for a residence permit pursuant to section 9c (1) of the Aliens (Consolidation) Act was not in violation of articles 23 and 24 of the Covenant, and that the author and her mother, H.B., can continue to enjoy family life through visits, as they have done previously.
Author’s comments on the State Party’s observations on admissibility and the merits
On 5 February 2020, the author submitted her comments on the State Party’s observations on the admissibility and merits of the communication.
In her comments, the author submits that H.B. travelled to Morocco in July 2011, January and October–November 2012, January and October 2013, January–February, May, July–August and November 2014 and January 2015, noting that the frequency of her visits increased after re-establishing contact with the author in the summer of 2013.
The author submits that she was able to apply for the issuance of her passport only after her custody had been transferred from her aunt to her mother, and after the issuance of her visa to enter Denmark; H.B. visited Morocco in May 2014 and July–August 2014 to follow up on her daughter’s visa application. The author thus claims that it took time to have the necessary documentation issued by the authorities, which delayed her application for a residence permit for the purpose of family reunification.
In relation to the State Party’s observations on the admissibility of the communication, the author reiterates her previous arguments on the admissibility of the case and insists that article 5 (2) (b) of the Optional Protocol has to be assessed in the light of whether the specific domestic remedies that were claimed by a State Party to be available were effective and available to the author in reality.
The author submits that the Immigration Appeals Board is an independent, collegial, quasi-judicial administrative body that considers appeals against immigration-related decisions of administrative authorities, except those relating to asylum-related decisions, which are dealt with by the Refugee Appeals Board. The author notes that the Immigration Appeals Board consists of a judge, a representative from the ministry responsible for immigration and integration, and a representative of the Bar association, and that the Board can be compared to a specialized court, given that it can call in an applicant for an interview in order to obtain information and consider arguments. The author further notes that until 2018, certain cases of family reunification for children could be appealed automatically and that lawyer was appointed free of charge to assist the minor and the parents; in 2018, that system was abandoned and the Immigration Appeals Board took over court cases relating to particular cases of family reunification. The author also submits that decisions of the Immigration Appeals Board can be challenged in the courts only for a limited set of legal reasons, including significant procedural errors, and that the general assessments of the facts and the merits in the case cannot be reviewed by the courts.
The author submits that the cases referred to by the State Party in its observations on the admissibility of the communication are not relevant to the present case, considering that these cases did not concern decisions made by a highly specialized, independent, collegial and quasi-judicial administrative body.9 The author invokes the jurisprudence of the Committee that the requirement of exhaustion of domestic remedies does not render a communication inadmissible if the specific remedy in a case does not have any prospect of offering effective redress, and refers to cases involving decisions of the Danish Refugee Appeals Board.
- The author seems to refer to the cases in footnote 6 above. ↩
With respect to the merits of the case, the author claims that the provisions of the Aliens (Consolidation) Act regarding the issuance of residence permits for the purpose of family reunification are discriminatory; namely, they distinguish between children below 15 years of age, for whom no exceptional reason is required, and children who are 15 years of age or older, for whom an exceptional reason is required. The author also claims that the authorities did not strike a proper balance between the best interests of the child and the requirement of exceptional reasons for family reunification. She therefore claims that the requirement under the Aliens (Consolidation) Act that provides that family reunification can be approved for children who are 15 years of age or older only for exceptional reasons is incompatible with articles 23 and 24 of the Covenant, as such exceptional reasons are not defined in law and set a foundation for disproportionately strict interpretation.
The author reiterates the arguments she raised in her submission of 15 March 2019 and contends that it was not possible to act faster in terms of filing a family reunification request. The author also reiterates that H.B. has a well-established family life in Denmark with her husband and two children from that marriage, who are attending school in Denmark. The author concludes that the decision not to allow her reunification with H.B. in Denmark would constitute an interference with her family life contrary to article 23, and a violation of article 24 in the form of failure to provide the author with the necessary measures of protection of a minor, which is applicable until the age of 18.
The author additionally submits that both she and H.B. are the authors of the communication,10 as they both find that their rights under articles 23 and 24 have been violated by the State Party.
- This is the first time that the author refers to two authors of the present communication. The initial complaint was submitted by one person: N.E. ↩
State Party’s additional observations
On 27 June 2016, the State Party submitted additional observations on the author’s comments.
In relation to her assertion that both N.E. and her mother H.B. should be considered authors of the communication, the State Party observes that this was not reflected in the initial communication from the author, dated 2 June 2017 and submitted on 15 March 2019. The State Party submits that, for this reason, only N.E. was regarded as the author of the communication in the State Party’s observations dated 20 September 2019. The State Party maintains that even if H.B. were to be considered a co-author of the complaint, there has not been a violation of articles 23 and 24 of the Covenant in relation to either N.E. or H.B.
The State Party submits that the Immigration Appeals Board is an independent, collegial, quasi-judicial administrative body, and that its decisions cannot be appealed to any other administrative authority.11 However, they can be brought before the Danish courts, which have the authority to adjudicate any matter concerning the limits of the competence of a public authority and the legitimacy of its decisions.12 The State Party admits that while the case is pending before the courts, the plaintiff must comply with the decision, as the court proceedings do not delay the effect of the decision made by the administrative body unless the court decides otherwise. The State Party notes the difference between the decisions of the Refugee Appeals Board and the Immigration Appeals Board, namely, that decisions of the former cannot be appealed to the Danish courts, whereas decisions of the latter can. Therefore, the State Party maintains that the author could have brought the case before the domestic courts, but has chosen not to.
The State Party submits that the legislative amendments made to the Aliens (Consolidation) Act in 2018 are not relevant to the author’s case, as cases such as the present one have never been subject to the special procedure provided for under previous legislation, which had allowed for exceptionally easy access to court for children. The State Party rejects the author’s claims that in 2018 the Immigration Appeals Board took over appeals concerning children in order to relieve the courts. Although the State Party acknowledges that legislators had taken into account the possibility of having cases decided by the Immigration Appeals Board when they decided to revoke the exceptionally easy access to court for children in cases under the special procedure, it notes that the amendment to the Aliens (Consolidation) Act in 2018 did not preclude bringing the cases before the courts through the regular procedure. The State Party therefore maintains that the author has not exhausted all available domestic remedies.
With regard to the author’s submission concerning the merits of the communication, the State Party submits that the distinction set out under the Aliens (Consolidation) Act regarding family reunification of children under and over the age of 15 is not illegal, unclear or discriminatory, and that it does not contravene articles 23 or 24 of the Covenant. The State Party submits that such an age requirement is a legitimate way to secure the State Party’s interests with regard to ensuring children’s integration into society, considering that their age of arrival in Denmark is a significant factor in their ability to finish their education in Denmark and be able to provide for themselves.13 The State Party notes that when the Immigration Appeals Board makes a decision based on section 9c (1) of the Aliens (Consolidation) Act, it considers all the information submitted in the case, and takes into account the State Party’s legal obligations in both national and international law, including the Covenant and case law, including in relation to family reunification and the best interests of the child. The State Party observes that in some cases where the child is 15 years of age or older, the best interests of the child may lead to the obligation to grant a residence permit to that child.
- The State Party refers to European Court of Human Rights, Tuquabo-Tekle and others v. Netherlands, Application No. 60665/00, Judgment, 1 December 2005, para. 44; and European Court of Human Rights, Berisha v. Switzerland, Application No. 948/12, Judgment, 30 July 2013, para. 51. The State Party also refers to article 4 (1) and (6) of European Council Directive 2003/86/EC of 22 September 2003, under which the member States of the European Union may request that an application concerning family reunification of minor children has to be submitted before the age of 15, and that they may verify whether a child meets a condition for integration if the child is over the age of 12 and arrives independently from the rest of his or her family; the State Party also notes that the directive is not in force in Denmark owing to Danish legal reservations thereto. Finally, the State Party refers to Court of Justice of the European Union, European Parliament v. Council of the European Union, Case No. C‑540/03, Judgment, 27 June 2006, in which the Court held that the age requirement under article 4 (6) of European Council Directive 2003/86/EC did not run counter to the right to family life or the obligation to have regard to the best interests of children or the principle of non-discrimination on the grounds of age. ↩
In relation to the author’s comments that the State Party has not struck a proper balance between the best interests of the child and the requirement of exceptional reasons for family reunification, the State Party submits that the Immigration Appeals Board evaluated the case, attaching importance to all the facts submitted by the author, inter alia, the author’s age, her upbringing, her cultural ties to both Denmark and Morocco, her family ties to her family in both Denmark and Morocco, and her situation if she were to return to Morocco. The State Party also notes that, since reestablishing contact, the author and H.B. have been enjoying family life through visits, as H.B. has visited the author several times in Morocco, and that the author can continue enjoying family life through visits in Denmark and Morocco.
The State Party submits that a child can be considered to have an independent attachment to Denmark if the child has had a legal and uninterrupted stay in Denmark for six to seven years, during which he or she has attended a Danish institution or school. The State Party observes that the author entered Denmark on a tourist visa and since then has been living with H.B. and H.B.’s family in Denmark, which does not give her an independent attachment to Denmark, considering that she has never had a residence permit in Denmark and that she has illegally remained in Denmark, relying on a tourist visa and procedural stays. The State Party maintains that a long-term illegal residence cannot in itself lead to the granting of a residence permit.
The State Party maintains that, should the Committee find the communication admissible, it has not been established that there are substantial grounds for asserting that the rejection of the author’s application for residence permit constitutes a violation of articles 23 and 24 of the Covenant, and that the Immigration Appeals Board adequately took into account the information provided by the author in the present case.
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
The Committee notes the author’s statement that both N.E. and H.B. are the authors of the communication, as they both find that their rights under articles 23 and 24 have been violated by the State Party. The Committee also notes the State Party’s statement that this was not reflected in the author’s communication dated 2 June 2017 and submitted on 15 March 2019, and that for this reason, only N.E. was regarded as the author of the communication in the State Party’s observations dated 20 September 2019. The Committee recalls that rule 99 (b) of its rules of procedure provides that a communication should normally be submitted by the individual personally or by that individual’s representative. In the present case, the Committee notes that N.E. was regarded as the sole author of the initial submission, dated 2 June 2017 and submitted on 15 March 2019, and that only the alleged victim, N.E., had duly issued power of attorney to authorize counsel to represent her before the Committee. Accordingly, the Committee considers N.E. as the sole author of the communication.
The Committee observes that, under article 5 (2) (b) of the Optional Protocol, it is precluded from considering a communication unless it has been ascertained that domestic remedies have been exhausted.
The Committee notes the State Party’s challenge to the admissibility of the communication on the grounds that domestic remedies have not been exhausted. The Committee further notes the State Party’s argument that court proceedings do not delay the effect of the decision made by the administrative body unless the court decides otherwise. The Committee notes that the author has exhausted administrative procedures only and did not institute proceedings before a court to challenge the Immigration Appeals Board decisions of 21 December 2015 and 1 November 2016, in which her application for family reunification had been refused. In this connection, for the purpose of article 5 (2) (b) of the Optional Protocol, the Committee recalls that domestic remedies must not only be available, but also effective, which also depends on the nature of the alleged violation.14 It also recalls that an applicant must make use of all judicial or administrative avenues that offer a reasonable prospect of redress.15 The Committee recalls that domestic remedies need not be exhausted if they objectively have no prospect of success, that is, where under applicable domestic laws the claim would inevitably be dismissed, or where established jurisprudence of the highest domestic tribunals would preclude a positive result.16 The Committee further notes that, on the other hand, mere doubts about the effectiveness of domestic remedies do not absolve an author from exhausting them.17
- Vicente et al. v. Colombia (CCPR/C/60/D/612/1995), para. 5.2. ↩
- Patiño v. Panama (CCPR/C/52/D/437/1990), para. 5.2. ↩
- Young v. Australia (CCPR/C/78/D/941/2000), para. 9.4; and Barzhig v. France, communication No. 327/1988, para. 5.1. ↩
- P.S. v. Denmark, para. 5.4; Faurisson v. France, para. 6.1; and Warsame v. Canada, para. 7.6. ↩
In the present case, the Committee notes that the author’s claims that she could not secure legal aid to submit her complaint to the courts. The Committee notes the State Party’s arguments that the fact that the author has been refused free legal aid cannot lead to a different outcome. In this regard, the Committee notes that that the author does not explain why it was necessary for her to obtain legal aid, and that she has not referred to any potential legal complexities of the case she was planning to file, or described in detail the efforts undertaken to secure such legal aid. The Committee further notes that the author does not provide any pertinent explanation as to why she considers the State Party’s court procedures ineffective; she states only that they are not accessible and would not provide effective redress (see paras. 3.4, 5.5 and 5.6 above). In these circumstances, and in the light of all the submissions made by the State Party, the Committee cannot conclude that the requirements of article 5 (2) (b) of the Optional Protocol were met in the present case, and therefore declares the communication inadmissible.
In the light of the Committee’s findings in para. 7.6, it decides not to consider other admissibility criteria with regard to the present communication.
The Committee therefore decides: (a) That the communication is inadmissible under article 5 (2) (b) of the Optional Protocol;
Joint opinion of Committee members Wafaa Ashraf Moharram Bassim and José Manuel Santos Pais (dissenting)
We regret not being able to concur with the Committee’s decision in finding the communication inadmissible due to non-exhaustion of domestic remedies.
In the present case, the author, born in Morocco in 1997, was separated from her mother when she was only one month old (para. 2.1 of the Committee’s decision), after her parents’ divorce. For many years, she could not see her mother – who, in 2002, had married a Danish citizen and moved to Denmark – as her father’s family did not allow any contact between the two (para. 2.2). The author therefore did not have the love and care of her mother during her childhood, including most of her teenage years.
The author’s father died in 2010 (para. 2.1) and she surely suffered from such a loss, being just 13 years old at the time.
It was only in the summer of 2013, when the author was 16 years old, that she was allowed to see her mother, at the request of her paternal aunt, who wished to transfer custody of the author to her birth mother (para. 2.2), presumably since the paternal family did not want to care for the author anymore.
The author’s mother quickly travelled to Morocco to have the author’s passport issued and to submit a visa application for the author to enter Denmark so that the author could be part of her new Danish family. The author obtained the visa and entered Denmark in 2014 and later submitted, in December of the same year, while still a minor, an application to the Danish Immigration Service for family reunification, which was rejected in May 2015.
The reasons for the rejection by the Danish authorities (para. 2.3) are, at the very least, shocking, particularly with respect to concluding that the denial of residence did not violate the respect for the unity of the family or the best interests of the author.
As for the argument concerning the delay in submitting the application for family reunification, it was not possible for the author’s mother to submit the application before the issuance of: (a) the author’s passport, which depended upon the transfer of the child’s custody from her paternal aunt to her mother; and (b) the author’s visa to enter Denmark (para. 5.3). All these initiatives to have the necessary documentation issued by the authorities, which may have delayed the application for a residence permit, only reveal the mother’s interest in taking care of her daughter in the future.
As for the alleged lack of a special relationship between the mother and her daughter after living apart for more than 16 years, neither of them should be blamed for it, the interest shown by both the author and her mother in living together being a clear indication that they want to resume a relationship that they were prevented, against their will, from experiencing for so many years.
As for the argument that the author had family in Morocco who could take care of her (para. 4.11), it is clear the author’s paternal family refuses to take care of her any more and that is why they contacted the author’s mother.
Finally, as for the argument that as the author was over the age of 17 at the time of the application, her needs for care and parental love were less than that of a younger child, this does not exclude that, just entering adulthood, the author is in need of particular guidance, support and parental love from her mother in this very important phase of her life.
In fact, the author wants to build a relationship with her mother, a relationship that is particularly necessary as she enters adulthood; therefore, denial of residence violates the respect of the unity of the (new) family and the interests of the author, contrary to the State Party’s arguments.
Both the author (para. 3.2) and the State Party (para. 4.6) recognize that there are extraordinary circumstances under which family reunification may be allowed for persons who are 15 years of age or older; the delay in going through the necessary procedures should justify approval of a residence permit pursuant to the principle of the best interests of the child (paras. 4.8 and 6.5).
In recent years, however, the State Party changed its laws, making it much more difficult for applicants for family reunification; that situation had an impact on the author’s communication. Until 2018, certain cases of family reunification for children could be appealed automatically and a lawyer was appointed free of charge to assist the minor and the parents. In 2018, that system was abandoned, and the Immigration Appeals Board, an independent collegial, quasi-judicial administrative body, took over certain court cases relating to particular cases of family reunification (para. 5.5). The State Party acknowledges this important legislative change and its consequences (para. 6.4).
Moreover, while decisions of the Immigration Appeals Board can be challenged in the courts, it is only for a limited set of legal reasons, including significant procedural errors. In fact, the general assessments of the facts and the merits in the case cannot be reviewed by the courts (para. 5.5); the State Party also acknowledges that limitation when it states that Danish courts “have the authority to adjudicate any matter concerning the limits of the competence of a public authority and the legitimacy of its decisions” (para. 6.3).
Although the author did not bring the 21 December 2015 and 1 November 2016 Immigration Appeals Board decisions before the Danish courts, therefore allegedly not exhausting domestic remedies, she was prevented from doing so, since she had been refused free legal aid. For a girl not having any means of providing for her own sustenance, having just entered adulthood and being new to a country different than her own, this is of major importance and surely prevented her from bringing the case before domestic courts. Furthermore, as already stated above, decisions of the Immigration Appeals Board can be challenged at the courts only for a limited set of legal reasons.
The author was informed by the Immigration Appeals Board that the appeal to the Board did not grant suspensive effect in regard to the deadline for departure, and that the author had to leave Denmark immediately (para. 4.2). Moreover, even if the author had decided to launch a judicial review of the Board’s decisions before the Danish courts, this would not have had the effect of suspending the author’s pending deportation, as the State Party itself acknowledges that court proceedings do not delay the effect of such a decision “unless the court decides otherwise” (para. 6.3). Therefore, exhaustion of domestic remedies could not prove available or effective in the circumstances of the present case (paras. 3.4 and 5.6).
Family reunification concerns not only children and their parents, but also adults (for instance, spouses), a situation that the State Party acknowledges (para. 4.12). So, the argument relating to the actual age of the author is a rather weak one.
The decision not to allow family reunification constitutes an interference with the author’s family life and does not protect the young adult (para. 5.8). The State Party itself acknowledges that in some cases where the child is 15 years of age or older, the principle of the best interests of the child may lead to the obligation to grant a residence permit to that child (para. 6.5).
We would therefore have reached a decision of admissibility in this case and would have concluded for a violation of the author’s rights under articles 23 and 24 of the Covenant.
Individual opinion of Committee member Hélène Tigroudja (dissenting)
I disagree with the conclusion reached by the majority of the Committee for the reasons thoroughly explained and detailed by my colleagues Wafaa Ashraf Moharram Bassim and José Manuel Santos Pais in their dissenting opinion. I fully share their analysis, but I would like to add another element linked to the domestic legal background in force in Denmark when the facts occurred that was totally missed by the majority of the Committee.
Provisions of the State’s Aliens (Consolidation) Act (sects. 7 and 9) and the question of the State’s international positive obligations regarding family reunification have been assessed severely by various international bodies, especially the Grand Chamber of the European Court of Human Rights in its M.A. v. Denmark judgment issued on 9 July 2021.18 The facts and the claims are different from the present case. Nevertheless, the European Court clarified and stressed a key principle relevant for the present communication. Rebutting the State’s affirmation that there were no positive obligations when dealing with family reunification, the European Court recalled its long-standing jurisprudence in favour of granting family reunification in different circumstances, and especially when “children were involved, since their interests must be afforded significant weight”.19 This “child-friendly” approach to the family reunification question has consequences on both the substantive and procedural dimensions of the State’s obligations that affect its “margin of appreciation” in these matters.20 The Human Rights Committee itself has recognized, in Views in which it found a violation by Denmark – regrettably ignored by the majority – that the best interests of a child must guide the analysis of the State’s substantive and procedural obligations under the Covenant. For example, in one case it stressed the following: “At stake in the present case are the author’s rights as a minor to maintain a family life with his father and his half-siblings and to receive protection measures as required by his status as a minor. The Committee notes that the author cannot be held responsible for any decisions taken by his parents in relation to his custody, upbringing and residence.”21
- Application No. 6698/18. In her communication, the author also referred to another important case, Biao v. Denmark (see Application No. 38590/10, Judgment (Grand Chamber), 24 May 2016), which is also relevant to understanding the legislative context. ↩
- M.A. v. Denmark, para. 135; the Court referred to previous judgments on similar issues. ↩
- M.A. v. Denmark, paras. 161–163. ↩
- El-Hichou v. Denmark (CCPR/C/99/D/1554/2007), para. 7.4. ↩
In the present case, the majority declared the complaint inadmissible on the ground of non-exhaustion of domestic remedies. However, that majority did not consider whether an exception to the exhaustion rule could apply, given the specific situation of the author (a minor who had been refused free legal aid) and the available remedies themselves (judicial review can be done only on narrow grounds and the remedies are not suspensive). The arguments raised by the State that the author was 17 at the time of lodging her application and that she had had no contact with her mother until the age of 16 are irrelevant and cannot be used against the author. Quite the contrary, as highlighted by the Committee in El-Hichou v. Denmark, the author cannot be blamed or sanctioned for her father’s refusal to allow her mother to visit her.
The majority’s position is also at odds with the unanimous international criticism of the Danish domestic parliamentary and judicial practice on family reunification. In addition to the European Court of Human Rights, the Parliamentary Assembly of the Council of Europe, the Commissioner for Human Rights of the Council of Europe, the European Commission against Racism and Intolerance, the Committee on the Elimination of Racial Discrimination and the Human Rights Committee itself, in its 2016 concluding observations on Denmark,22 have strongly criticized the Danish Aliens (Consolidation) Act, the regressive rationale behind the text and the discriminatory consequences of many of its provisions.23 I regret that the majority decided this communication not only without any regard to the international standards applicable to family reunification in general, but also without any consideration to the clear and universal denunciation of the Danish legislative framework applied to the author’s and her mother’s claims.
For all these considerations and those explained by my colleagues Ms. Bassim and Mr. Santos Pais in relation to the facts, I am convinced that the communication should have been declared admissible, and that, on the basis of the family life existing between the author and her mother, the Committee should have concluded for a violation of articles 23 and 24 of the Covenant.
Individual opinion of Committee member Duncan Laki Muhumuza (dissenting)
The author claims that the rejection of her application for a residence permit for the purpose of family reunification and the order for her to leave Denmark constitutes a violation by the State Party of her rights to family life and protection, under articles 23 and 24 of the Covenant. She also claims that the State Party violated her rights under articles 3 and 9 of the Convention on the Rights of the Child.
The application was rejected on the basis that no special grounds to grant a residence permit could be established under the Aliens (Consolidation) Act; that denial of residence did not violate the respect for the unity of the family, or the best interests of the author; that the author’s mother had not submitted the application without delay, since she had reestablished contact with her daughter during the summer of 2013, but had applied for family reunification only on 5 December 2014; and that there was no special relationship between the mother and the daughter after having lived apart for more than 16 years.
There need not be a “special relationship” between a mother and her child for purposes of family. It is not in contention that H.B. is the biological mother of the author, and that fact cannot be negated by lapse of time, or by distance or lack of proximity. The State Party seems to imply that the absence of communication, and the 16 years they spent apart while the author was in the care of her father’s family, nullify H.B.’s motherhood. Yet motherhood is the most natural basis of family (with the mother being a child’s birth parent).
The author’s needs for care and parental love might indeed be less than those of a younger child, but the author has clearly expressed by whom she would like those needs to be met; that is, by her mother. The State Party should reconsider that, since the author is older now, her preferences and wishes can be better expressed with regard to whose care she should be under. Continually denying that requirement would be a blatant violation of the author’s best interests.
On the submission by the State Party that no positive obligation can be derived from articles 23 and 24 of the Covenant for countries other than the country where the child is a citizen, and that neither do the articles include an independent immigration right for a child for the purpose of obtaining better living conditions, even when the child has some connection to the country as a temporary country of residence for the child: (a) It is important to note that the main basis of the application was family reunification, not pursuit of better living conditions; (b) The connection that the author seeks is with her birth mother, not the State Party in whose territory the mother resides. The immigration right is thus incidental to her right to family, in which case the State Party is obligated to take steps to allow for the enjoyment of the latter right.
The State Party submits that, in general, children are not considered to have developed an independent attachment to Denmark until after six to seven years of uninterrupted stay in Denmark with a residence permit. The most important attachment in this case is that of the author to her mother. From the established facts, it is obvious that the separation was the result of conditions beyond the control of the author and her mother. Natural justice leans heavily towards the need to maintain the currently re-established mother-daughter relationship.
The State Party submits that the author has never received a residence permit in Denmark, and that she stayed in Denmark illegally on a visitor’s visa and procedural stays. The State Party finds that the author is not without a caregiver in her home country, considering that her aunt, with whom she had lived before, is still living in Morocco and that the author also has other family members. The State Party also notes that the author’s mother, H.B., has visited the author in Morocco on several occasions and submits that nothing prevents the author and her mother from continuing to enjoy their family life through visits, as they have done since re-establishing contact.
It is unclear why the State Party should insist on family visits, when parental visits are not the normal way of raising a child, and when such an approach is detrimental to a child’s stability. It is unfortunate that the State Party would opt for parental visits as a preferred method of family life, when there is a parent willing to care for her daughter. It is inconsiderate of the essence of family and its contribution to the social fabric.
For the State Party to state that its position is unchanged even by the fact that the mother had been prohibited from having contact with her daughter by her ex-husband’s family is quite absurd. The State Party observes that in some cases where the child is 15 years of age or older the best interests of the child may lead to the obligation to grant a residence permit to that child.
Since the State Party acknowledges that in certain cases where the child is 15 years or older the best interests of the child may lead to the obligation to grant a residence permit to that child, my considered opinion is that the State Party should indeed proceed to grant the permit as sought by the author.