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instant case, ed. Ann.] who became Danish citizen at 31 years of age, will be subject to the attachment requirement until he becomes 59 years old. The 28 years rule therefore involves, that the substantial limitation in the access to family reunion, which follows from the attachment requirement, far more often and in a more radical interference will effect persons, who only later in their life have attained Danish citizenship, than persons born to Danish citizenship. The 28 year rule, thus involves a clear indirect difference of treatment between the two groups of Danish citizenship.

…while persons, who only at a later point in life have Danish citizenship generally will have a different ethnic origin. The 28 years rule concurrently, therefore, involves a clear indirect discrimination between Danish citizens of Danish origin and Danish citizens with a different ethnic origin in relation to access to family reunion.”

On the basis of remarks in the travaux preparatoires the minority next took it for granted that the differentiation in the 28 years rule involved an intended consequence of the act. The minority next reviewed the European Conventions on Human Rights (ECHR) and on Nationality (ECN) and questioned the interpretation by 3 ministries of Art. 5 (2) of the latter limiting the application to concern only deprivation or forfeiture of citizenship.

 It is in our view subject to doubt, whether there is basis for such a restrictive construction, since the norm according to its wording concerns any distinction irrespective of how and when the citizenship has been acquired. …In considering the 28 year-rule in the light of the Human Rights Convention Art. 14, cf. art. 8, it must, however, in our view be taken into account, that the Nationality Convention art. 5 (2), at least according to its wording as a starting point contains a general rule prohibiting differentiation in treatment between different groups of own citizens.

 In considering the Human Rights Convention Art. 14, cf. art. 8, it must further be kept in mind, that it is of central importance to have access to take up residence with one’s spouse in the country of one’s citizenship. (at 1061)

The minority finally established that the comparable groups in the case was not the large group of persons who are born as Danish citizens and also had grown up in Denmark, in which case the exception should have been worded differently:

The decisive comparison must therefore be between persons, who are born as Danish citizens and have been Danish citizens for 28 years, but who have not grown up in Denmark and perhaps not at any time been domiciled in Denmark. It cannot in our view be presumed that this group of Danish citizens from a general consideration have a stronger attachment to Denmark than persons, who after entry into  and stay in Denmark for a number of years have attained Danish citizenship. In this context it must be taken into consideration that acquisition of Danish citizenship by naturalization in general is conditioned on the person in question having lived in Denmark for at least 9 years, has demonstrated knowledge of the Danish language and society and fulfilled the requirement of being economically self-supporting.

 On this background it is our view that the indirect differentiation, which the 28 year rule involves, cannot be considered serving a reasonable purpose and therefore it is in violation of the Human Rights Convention art. 14 in conjunction with art. 8.

 The consequence flowing from this must be, that the authorities in applying the Aliens Act, Section 9 § 7 on Danish citizens must restrict the 28 years rule to be an age criterion only, so that the aggregate attachment tie is not applied in cases, where the here resident spouse is a Danish citizen and has reached 28 years of age.” (Ibid at p.1062).

94.

DACoRD finally wants to inform the Committee on the Elimination of Racial Discrimination that a complaint over the refusal of family reunion in the Supreme Court judgement of 13 January 2010 has been submitted to the European Court of Human Rights within the 6 month rule limit.

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