CEDH · CASELAW;CLIN;ENG — 14 juin 2011

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Denmark - 38058/09 Judgment 14.6.2011 [Section I] Article 8 Expulsion Article 8-1 Respect for family life Respect for private life Refusal to renew residence permit of minor who had been sent abroad by her parents against her will: violation   Facts – At the age of fifteen the applicant, a Somali national who had been living with her parents and siblings in Denmark since the age of seven, was sent against her will to a refugee camp in Kenya by her father to take care of her paternal grandmother. Two years later, when still a minor, she applied to be reunited with her family in Denmark, but her application was turned down by Danish immigration on the grounds that her residence permit had lapsed as she had been absent from Denmark for more than twelve consecutive months. She was not entitled to a new residence permit as, following a change in the law that had been introduced to deter immigrant parents from sending their adolescent children to their countries of origin to receive a more traditional upbringing, only children below the age of fifteen could apply for family reunification. The immigration authority also considered that no special circumstances existed in her case as she had not seen her mother for four years, her mother had agreed to her being sent to Kenya and she could continue to live in Kenya with her grandmother or her grandmother’s family. Law – Article 8: The refusal to renew the applicant’s residence permit had interfered with both her private life and her family life. She was still a minor when she applied to be reunited with her family in Denmark and, for young adults who had not yet founded a family of their own, their relationship with their parents and other close family members constituted “family life”. In addition, all the social ties between settled migrants and the community in which they were living constituted “private life”. The measure in question had a basis in domestic law and pursued the legitimate aim of immigration control. As to whether the measure had been necessary in a democratic society, the Court noted that the applicant had spent her formative years in Denmark, spoke Danish and had received schooling in Denmark and that all her close family lived in Denmark. Accordingly, she could be considered a settled migrant who had lawfully spent all or the major part of her childhood and youth in the host country so that very serious reasons would be required to justify the refusal to renew her residence permit. Although the aim pursued by the law on which that refusal was based was legitimate – discouraging immigrant parents from sending their children to their countries of origin to be “re-educated” in a manner their parents considered more consistent with their ethnic origins – the children’s right to respect for private and family life could not be ignored. The domestic authorities had, however, disregarded the applicant’s submission that her father’s decision to send her to Kenya for so long had been against her will and was not in her best interests as they considered that it had been taken by her parents, who had custody of her at the relevant time. While the Court agreed that the exercise of parental rights constituted a fundamental element of family life, and that the care and upbringing of children normally and necessarily required that the parents decide where the child should live, this did not entitle the authorities to ignore the child’s interests, including the right to respect for his or her private and family life. Moreover, even though the applicant may have had very limited contact with her mother over a four-year period, this could be explained by various factors, including practical and financial constraints, and could hardly lead to the conclusion that they did not wish to maintain or intensify their family life together. Lastly, the legislative amendment that had reduced the age of entitlement to family reunification from eighteen to fifteen years had not been foreseeable when the decision to send the applicant to Kenya was taken or when her residence permit expired. In these circumstances, it could not be said that the applicant’s interests had been sufficiently taken into account or balanced fairly against the State’s interest in controlling immigration. Conclusion : violation (unanimously). Article 41: EUR 15,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes