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.
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).
The majority of 4 of the Supreme Court panel relied heavily on the judgement of 28 May 1985 in the Abdulaziz case v. United Kingdom48 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.
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 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
47 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.
48 ECtHR, Report, Series A 94, Application no. 9214/80, 9473/81, 9474/81. The judgement predates the ECN treaty by 12 years.