How long is too long? The limits of restrictions on family reunification for temporary protection holders

By Nikolas Feith Tan, Senior Researcher, Danish Institute for Human Rights and Jens Vedsted-Hansen, Professor, Aarhus University.

On 9 July 2021, the Grand Chamber of the European Court of Human Rights handed down its judgment on Denmark’s legislative tightening of family reunification rules for temporary protection holders in the case of M.A. v Denmark. In a careful but resounding sixteen-to-one decision, the Court declared that the statutory requirement of three years waiting time for family reunification for a Syrian doctor with ‘temporary subsidiary protection’ status in Denmark breached his right to respect for family life under Article 8 of the Convention. The judgment has already been the subject of academic comment, with analysis tending to focus on the role of the ECtHR in adjudicating migration and asylum policy and legal implications for Denmark (in Danish). This post discusses the background, main findings and implications of the judgment from both a human rights and EU law perspective, including the impact of EU law on the ECtHR’s assessment of the Danish suspension rule.

Legislative background: The ‘three-year rule’

The legislative basis for MA’s claim dates to February 2015, when the Danish parliament adopted ‘temporary subsidiary protection’ status under Section 7(3) of the Aliens Act as the European asylum crisis was gathering steam. This status introduced a particularly ‘thin’ form of return-oriented protection for asylum seekers fleeing generalised violence, primarily from Syria. Section 7(3) was adopted to reflect the perceived temporary nature of protection need in such cases, and not least to provide the legal basis for limitations of entitlements for the beneficiaries of ‘temporary subsidiary protection’ status. Among these limitations, the suspension of family reunification was the most important. As a result, ‘temporary subsidiary protection’ holders were initially denied family reunification for one year, with this restriction increased to three years in February 2016 with retroactive application, which came to be known as the ‘three-year rule’.

In proposing this extension from one to three years, the government referred to the influx of asylum seekers in Europe more broadly, and Denmark in particular, and the accompanying risks to social cohesion, prospects of integration and, perhaps most remarkably, a desire to ‘further restrict the asylum conditions and access to Denmark, so that it will become markedly less attractive to seek towards Denmark.’ Thus, the extended suspension of family reunification is to be seen as one among a number of explicitly deterrent measures, reflecting a policy strategy of ‘negative nation branding’. Notwithstanding the Danish government’s clear-eyed deterrence intent, it acknowledged a ‘procedural risk’ of a contrary finding from the ECtHR, in the absence of directly relevant caselaw from the Court vis-à-vis the family reunification rights afforded to temporarily protected individuals. Nevertheless, the government found there were ‘weighty arguments to support the view that the proposed scheme was compatible with Article 8 ECHR’.

The case in brief

MA, a Syrian doctor, entered Denmark in April 2015 and was granted ‘temporary subsidiary protection’ status under Section 7(3) of the Aliens Act in June 2015. MA applied to be reunified with his wife of twenty-five years, who had remained in Syria, in November of that year. The couple has two adult children who were not part of the family reunification application. In July 2016, MA’s application for family reunification was refused by the Immigration Service, and that decision was upheld by the Immigration Appeals Board in September 2016, with reference to the ‘three-year rule’. In November 2017, the Danish Supreme Court, though noting the insurmountable obstacles facing MA and his wife in the exercise of their family life, upheld the decision of the Immigration Appeals Board with reference to the state’s margin of appreciation under the ECHR. In January 2018, MA filed a complaint with the ECtHR on the basis that the ‘three-year rule’ was in breach of his Article 8 rights read in conjunction with his Article 14 rights of non-discrimination.

Following relinquishment to the Grand Chamber in November 2019 and an oral hearing in June 2020, the ECtHR held that the ‘three-year rule’ violated MA’s right to family life in the concrete case. While acknowledging that shorter restrictions on family reunification fall within states’ margin of appreciation under Article 8, the Grand Chamber found that the Danish government failed to strike ‘a fair balance between, on the one hand, the applicant’s interest in being reunited with his wife in Denmark and, on the other, the interest of the community as a whole to control immigration with a view to protect the economic well-being of the country, to ensure the effective integration of those granted protection and to preserve social cohesion’ (para 194). On the latter point, the Court succinctly observed that it should be borne in mind that family reunification may also favour preserving social cohesion and facilitate integration (para 165). Against this background, it was unsurprising that the Court focused on the quality of the parliamentary and judicial decision-making at national level. This rationale is further explored below.

Procedural requirements in domestic family reunification procedures

In its nuanced judgment, the Grand Chamber is careful not to outright criticise the Danish national procedure in reviewing MA’s application for family reunification, but rather reiterates its own procedural requirements for processing requests for family reunification of refugees and noted that these requirements apply equally to beneficiaries of subsidiary protection (paras 137-8 and 146). In so doing, the Court points to its task to ‘examine carefully the arguments taken into consideration during the legislative process’ and to determine whether a fair balance has been struck between the competing interests of the state or the public generally and those directly affected by the legislative choices. In this respect the Court also ‘recalls that the domestic courts must put forward specific reasons in the light of the circumstances of the case, not least to enable the Court to carry out the European supervision entrusted to it. Where the reasoning of domestic decisions is insufficient, with any real balancing of the interests in issue being absent, this would be contrary to the requirements of Article 8 of the Convention….’ (paras 148-9).

Before applying these general principles to the concrete case, the ECtHR concluded on the scope of the margin of appreciation by once again referring to the procedural requirements, stating that ‘the said fair-balance assessment should form part of a decision-making process that sufficiently safeguards the flexibility, speed and efficiency required to comply with the applicant’s right to respect for family life under Article 8 of the Convention….’ (para 163, emphasis added). The Court’s emphasis on procedural requirements seems to imply a certain level of scepticism towards the Danish domestic procedures in the adoption and administration of the ‘three-year rule’. It is noteworthy that the ECtHR points to the fact that the Danish Supreme Court had ‘found that the three-year waiting period fell within the margin of appreciation enjoyed by the State when balancing the interests’ (para 189). While this does not in itself level criticism against the Supreme Court’s line of reasoning, it may leave the impression that not only the parliamentary decision-making process, but also the judicial review at national level had contributed to the rigidity of the statutory framework, as applied in the case of MA, that ultimately was held to be in violation of Article 8.

Crucially, the ECtHR concluded that the ‘three-year rule’ failed to allow for an individualised assessment of the interest of family unity in the light of MA’s concrete situation beyond the ‘very limited exceptions’ falling under section 9c(1) of the Aliens Act. Nor did the Act provide for a review of the situation in the country of origin ‘with a view to determine the actual prospect of return or obstacles thereto’. As a result, the Court found that ‘for the applicant, the statutory framework and the three‑year waiting period operated as a strict requirement for him to endure a prolonged separation from his wife, irrespective of considerations of family unity in the light of the likely duration of the obstacles.’ (paras 192-3, emphasis added).

How long is too long? The ECtHR and the EU Family Reunification Directive

While the judgment may be read as a robust defence of the rights of all international protection holders to family reunification, it should not be misunderstood as an absolute rebuttal of states’ attempts to limit family reunification rights. Indeed, at several points in the judgment the ECtHR refers to the two-year suspension of family reunification contained in Article 8 of the EU Family Reunification Directive, stating it ‘sees no reason for questioning the rationale of a waiting period of two years’ as that underlying Article 8 of this Directive (para 192, see also para 162). On the other hand, the Court also notes that there is no common ground at national, international and European levels in regard to the length of waiting periods for family reunification (para 160). Nevertheless, this cross-referencing of EU law standards, while by no means unusual for the ECtHR in its search for common ground between the states parties to the ECHR, seems to imply that a Danish limitation of two years accompanied by a procedure with ‘a real possibility … of having an individualised assessment’ to challenge the general rule would fall under the threshold of Article 8 compliance. This impression appears most strongly when the Court suggests that the considerations of the right to family life tips the scales into the third year of waiting: ‘beyond two years the insurmountable obstacles to enjoying family life in the country of origin progressively assume more importance in the fair balance assessment’ (para 193, see also para 162).

Taken together, the Court’s references to the EU Family Reunification Directive may leave some doubt as to the interaction between EU law and Article 8 ECHR. As mentioned above, the Court notes the absence of common ground at European level in regard to the duration of waiting periods for family reunification. At the same time, however, the Court’s indications of some kind of two-year limit appear to be based on the Family Reunification Directive to which numerous references are made in the judgment. If this is implicitly setting a standard, it does not necessarily imply an absolute time limit for the suspension of the right to family reunification. It also cannot be understood as a general acceptance of any waiting period below the suggested two-year limit, if that would be administered as an absolute requirement with no concrete assessment of family unity in the light of the situation in the country of origin and other factors likely to impact the duration of the obstacles to reunification.

Implications of the judgment

M.A. v Denmark gives rise to a number of legal reflections for both Denmark and the European asylum policy more broadly. Firstly, while the judgment has few apparent practical implications for ‘temporary protection status’ holders in Denmark (most of whom arrived in 2015 and 2016 and have subsequently received family reunification), it seems likely that compliance requires some legislative amendments to the Danish Aliens Act to preclude further cases before the ECtHR. As hinted at above, one possible course of action may be to shorten the suspension of family reunification from three years to two years for holders of a ‘temporary subsidiary protection’ residence permit under Section 7(3) of the Aliens Act, combined with a more flexible administration of the exception rule.

Secondly, and more generally, this judgment has been seen as “a signal from Strasburg to Copenhagen that the Danish strategy of consistently adopting a minimalist reading of its international human rights obligations is not without limits.” This is not least noteworthy against the background of the 2018 Copenhagen Declaration by which the Danish government, although with less success than hoped for, had attempted to push the ECtHR towards widening the margin of appreciation left to states, especially in migration and asylum matters.

Third, the ECtHR judgment in M.A. v Denmark leaves the question of differential treatment of subsidiary protection status and Convention refugee status largely unanswered. Having regard to its finding of a violation of Article 8, the Court found no need to examine separately the applicant’s complaint of a violation of Article 14 read in conjunction with Article 8 ECHR, based on the distinction underlying the three-year suspension rule. Nonetheless, the Court seems to have indicated both similarities and differences between refugees falling under the UN Refugee Convention and beneficiaries of subsidiary or temporary protection, respectively. Thus, the Court found ‘no reason to question the distinction made by the Danish legislature in respect of persons granted protection due to an individualised threat … and persons granted protection due to a generalised threat’ (para 177), i.e. those with ‘temporary subsidiary protection’ status under Section 7(3) of the Aliens Act. Importantly, the former category includes persons with the ordinary ‘subsidiary protection’ status under Section 7(2) which is reflecting the prohibition of refoulement in Article 3 ECHR. This statement cannot be taken as a general endorsement of differential treatment of beneficiaries of subsidiary protection as regards the right to family reunification.

In its consideration of the scope of the margin of appreciation under Article 8, the Court held that states should be accorded a wide margin of appreciation in deciding whether to impose a waiting period for family reunification for persons who have not been granted Convention refugee status, but who enjoy subsidiary protection or temporary protection (para 161). In the context of the procedural standards, however, the Court stated that the procedural requirements under Article 8 for the processing of family reunification requests of refugees should apply equally to beneficiaries of subsidiary protection, including to persons at risk of ill-treatment falling under Article 3 ECHR due to the general situation in their home country and where the risk is not temporary, but appears to be of a permanent or long-lasting character (para 146). In sum, therefore, the ECtHR appears to focus on the expected duration of the need for international protection rather than the qualification of that need as falling under the UN Refugee Convention or under the human rights-based protection against return to a serious risk of ill-treatment. This position may prove to have implications beyond the particular statutory framework of ‘temporary subsidiary protection’ status in Danish law.