Biao v. Denmark – Discrimination among citizens?

On 25 March 2014 the European Court of Human Rights delivered a controversial judgment in a case on family reunion in Denmark, the Biao case. The applicants were a Danish national, Mr Ousmane Ghanian Biao, and his wife, a Ghanaian national, Mrs Asia Adamo Biao. They alleged that a refusal by the Danish authorities to grant them family reunion was in breach of the European Convention on Human Rights (ECHR) article 8, alone and in conjunction with article 14. The Danish authorities had refused the application for family reunion because the spouses did not fulfil the requirement that their aggregate ties to Denmark be stronger than their aggregate ties to any other state where they could live together – in this case Ghana (‘the attachment requirement’). They submitted that the decision breached their rights under article 8 of the ECHR since it did not pursue a legitimate aim on the ground that it was introduced to target Danish citizens of non-Danish ethnic or national origin. Alternatively, if the refusal was not deemed to be contrary to article 8, they claimed that it was contrary to the prohibition against discrimination, cf. ECHR article 14 read in conjunction with article 8, since particular groups of Danish citizens were treated differently in relation to family reunion in Denmark. In analogous circumstances, those who were born Danish citizens would be exempted from the attachment requirement according to the so-called ‘28-year rule’ which states that the requirement does not apply in cases where the resident person applying for family reunion has been a Danish citizen for 28 years cf. the Aliens Act section 9(7).The complaint regarding the attachment requirement’s conformity with article 8 will not be dealt with here. This paper will primarily deal with the question whether a state lawfully can treat its citizens differently solely on the basis of how and when they acquired their citizenship.In this context the significance of the European Convention on Nationality (ECN) article 5(2), will be analysed. Article 5(2) states that in matters of nationality, state parties shall be guided by the principle of non-discrimination between their citizens, whether they are citizens by birth or have acquired their citizenship subsequently.