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apparently of a lesser quality.27 The Government provides no reason why the apparent arbitrary figure of 28 years should give reason for such qualitative distinction. In the view of DACoRD there is no rational tie between the measure in the 28 year rule and any objective and proportional reason for the differential treatment, which must therefore be deemed discriminatory.28

90.

DACoRD has reported briefly in para. 18 of the present report on the test case in the Supreme Court in relation to the status of incorporated and non-incorporated conventions. We also noted that the courts did not offer any comments to the Crown counsels rejection of ICERD as non-incorporated thus giving ground for the presumption that the ICERD was not applied in the case. However, where the government above argues that the differential treatment did not amount to unfounded discrimination, the Supreme Court split 4-3 on the issue.

91.

The question before the Supreme Court concerned the distinction under which persons with Danish citizenship for 28 years are better placed than persons, who have had Danish citizenship for a shorter period than 28 years. (UfR 2010. 1035H at 1059).

92.

The majority of 4 of the Supreme Court panel relied heavily on the judgement  of 28 May 1985 in the Abdulaziz case v. United Kingdom29 and held on the basis of that decision, that there was no basis for finding that the 28 year rule involved discrimination in violation of the convention. (Ibid. at 1060). Following the observation of the High Court on the non-binding character of Art. 5 (2) or the European Convention on Nationality, the majority then concluded, that the European Convention on Human Rights Art. 14, cf. Art. 8, could not be accorded a broader scope than that which follows from the judgement from 1985.

93.

The minority of 3 judges looked at the real consequences of the 28 year rule for the two different groups of Danish citizens who were born as such and those who were later naturalized:

“For persons who did not grow up in Denmark and who first at a later time in their life have achieved Danish citizenship the rule means that the attachment tie rule is applied until 28 years has passed from the time when the applicant attained Danish citizenship. By way of example, B [spouse in the

27 Compare in this context also art. 5 (1) of the European Convention on Nationality (ECN) of 6 Nov. 1997, dk ratification on 24 July 2003:

“The rules of a State Party on nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin.” and Art. 5 (2)

“Each State Party shall be guided by the principle of non-discrimination between its nationals whether they are nationals by birth or have acquired its nationality subsequently.” ECT No. 166, Danish Law Gazette, Lovtidende bkg nr. 17, 12 June 2003. ICERD Art. 1 is explicitly stated as one of the sources to art. 5, in the explanatory report for ECN, para. 43.

28 DACoRD fails to understand why the real ties of a Danish citizen, who is born in Denmark and became Danish at birth, but who has lived most of his life abroad, perhaps 1 year in Denmark and 27 years abroad must be considered having a better attachment to Denmark, than an immigrant who may have lived in Denmark for 10 years or more.

-A possible explanation for the 28 years limit may be based out of consideration for a special interest group: Danish students who had taken one or more years of studies at a foreign institution of higher education and might want to bring a spouse and perhaps children from that country back to Denmark. Support for an explanation of this kind can be drawn from the legislative history, but basing an “objective” 28 years rule on a favourable treatment of a special group at the sacrifice of  impairing a protected human right to equal  treatment on the basis of national or ethnic origin would indeed be arbitrary.

29 ECtHR, Report, Series A 94, Application no. 9214/80, 9473/81, 9474/81. The judgement predates the ECN treaty by 12 years.

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