The ECtHRs's Judgment in Biao V. Denmark: Non-Discrimination among Nationals and Family Reunification as Converging European Standards
| Date | 01 October 2016 |
| Published date | 01 October 2016 |
| DOI | 10.1177/1023263X1602300507 |
| Author | Sergio Carrera Nuñez |
| Subject Matter | Case Note |
23 MJ 5 (2016) 865
CASE NOTES
THE ECtHR’S JUDGMENT IN BIAO V.
DENMARK: NON-DISCRIMINATION AMONG
NATIONALS AND FAMILY REUNIFICATION
AS CONVERGING EUROPEAN STANDARDS
ECtHR, Biao v. Denmark, Judgment of 24May 2016, Application No. 38590/10
S C N*
§1. IN TRODUC TION
On 24May 2016, the Grand Chamber of the European C ourt of Human Rights (ECtHR)
delivered its much anticipated judgment Biao v. Denmark.1 e case deals wit h the
compliance of Danish legislation for grati ng family reuni cation2 with the European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
e Danish Aliens Act env isages an ‘attachment requirement’ according to wh ich family
reunion can be only granted if the applicant spouses – controversially including bot h
* Dr. Sergio Carrer a is a Senior Researc h Fellow and head of Justice a nd Home A airs Programme, CEPS.
He is a n Asso ciate Profe ssor/S enior R esea rch Fel low at t he Fac ulty o f Law i n Maas tric ht Unive rsit y (the
Netherlands). Car rera is also a n Honorary Indust ry Professor at t he School of Law in Queen M ary
Unive rsit y of Lon don (U K). e aut hor would like to tha nk Prof. Bruno de Wit te, Prof. Gerard-René de
Groot and Prof. Els peth Guild for their v aluable comments on a previou s dra of this paper.
1 ECtHR, Biao v. Denmark (Grand Cham ber), Judgement of 24May 2016, Application No. 38590/10.
2 ‘Family reuni cation’ and ‘f amily reun ion’ are notions that are o en used as synony ms. According
to UNESCO, ‘Family reunion/reuni cation enables person s to exercise their hu man right to fa mily
life outside of thei r country of orig in (in the context of migration) (… From an admin istrative and
policy perspective, family reuni cation is a ground for allowing i mmigration of family member s to
the country were a f amily member resides . e requ irement s to be el igible for fam ily reu ni cation vary
international ly and may change over time throug h legislation’. UNE SCO, People on the Move: Hand book
of Selected Terms a nd Concepts (UNESCO, 2015), p.28. When moving within the remits of the EU
legal system t he notion takes speci c features. Refer to European Mi gration Network (EMN), Asylum
and Migration: Glossary 3.0 (European Commi ssion, 2014), p.127. According to the Ha ndbook on
European Law relat ing to Asylum, Borders and M igration, ‘[f]amily reu ni c ation describes situat ions
where the person who is resident in an EU or Council of Europe member state wishes to be joined by
family members le behind when he or she m igrated’. Europea n Union Agency for Fundament al Rights
(FRA) and Counc il of Europe, Handbook on Europ ean Law relating to Asylum , Borders and Migration
(European Union Agenc y for Fundamental Rig hts (FRA) and Council of E urope, 2015), p.130.
Sergio Carre ra Nuñez
866 23 MJ 5 (2016)
Danish nationals and foreigners – have ‘aggregate t ies’ to Denmark which are deemed to
be stronger than those to a ny other country in the world where they may originate f rom.
is ‘elsewhere criterion’ was later on complemented by another rule exempting from
this requirement, Dan ish nationals applying for family reuni cation who have been
nationals for a period of 28 years (the ‘28-year r ule’).
e Danish authorities refused to grant fa mily reuni cation to the Biao family on
the basis of not meeting these criteria. e applicants argued that the refusal by the
Danish authorities to grant family reuni cation amounted to a violation of Articles8
(right to respect family li fe) in combination with Article 14 ECHR (prohibition of non-
discrimination).3 ey submitted t hat Danish migration ru les amounted to ‘indirec t
discriminat ion’ on the basis of race and ethnic origi n between Danish-born nationals
– who did not need to comply with the 28-year ru le – and those acquiri ng Danish
nationality later on in li fe through natura lization, whom in the majority of cases would
have di erent ethnic and/or national origins .
A Chamber of the ECtHR rst issued a judgment on the Biao v. Denmark case in
March 2014.4 It held that the Danish law was compatible with the huma n rights standards
laid down in the Convention. e applica nts referred the case before the Grand Cha mber
issues at stake and has now overr uled the previous judgment in favour of the Biao fam ily.
Biao v. Denmark covers fundamental questions lying at the interface of nationality and
migration law in Europe: rst, ca n states treat persons di erently (directly or indirectly),
holding their own nationality and/or citizenship6 on the basis of their national and/or
ethnic origin – whether they are nationals by bir th or have acquired their nationality
3 Article 8Europea n Convention for the Prote ction of Human Ri ghts and Funda mental Freedoms
(ECHR) states: ‘1. Everyone ha s the right to respect for his private a nd family life, his home and h is
correspondence. 2 . ere shall be no inter ference by a public authority with t he exercise of this right
except such as is in ac cordance with the law a nd is necessary in a democ ratic society in t he interests of
national secu rity, public safety or t he economic wellbeing of t he country, for the prevention of d isorder
or crime, for the prote ction of health or mor als, or for the protection of the rig hts and freedoms of
others.’ Article 14 ECHR stipulates that ‘[t]he enjoyment of the right s and freedoms set forth in th is
Convention shall b e secured without d iscrimination on a ny ground such as sex, rac e, colour, language,
religion, polit ical or other opinion , national or socia l origin, ass ociation with a nat ional minorit y,
property, birt h or other status.’
4 ECtHR, Biao v. Denmark, Judgment of 25Ma rch 2014, Application No. 38590/10. For an analysis refer
to E. Er sbøll, ‘Bi ao v. Denmar k: Discr iminat ion among Ci tizens? ’, EUI Working Papers, RSCAS 2014/79
(2014), http://cadmus.eui.eu/bitstream/handle/1814/32015/RSCAS_ERS%20_2014_79.pdf?sequence=1.
5 Article43 ECHR de als with the re ferral to the Gra nd Chamber. It reads as fol lows: ‘1. Within a period of
three months fr om the date of the judgment of the Cha mber, any party to the ca se may, in exceptional
cases, reques t that the case be referred to the Gr and Chamber. 2. A panel of ve judges of the Grand
Chamber shal l accept the request if the case r aises a serious question a ecting the interpretation or
application of the Conve ntion or the Protocols thereto, or a seriou s issue of general importance . 3. If
the panel accept s the request, the Grand C hamber shall decid e the case by means of a judgment .’
6 For the purpose s of this paper, the terms national ity and citizenship are u sed interchangeably. For a
discussion on t he actual mea ning and scope of t hese notions, which a re ‘context-speci c’ and make take
di erent shapes de pending on the schola rly discipline and legal-histor ical tradit ions of a particular
To continue reading
Request your trial