Quick answer
In Biao v. Denmark (Grand Chamber, 24 May 2016, application no. 38590/10), the European Court of Human Rights held — by twelve votes to five — that a Danish family-reunification rule indirectly discriminated on the basis of ethnic origin against a naturalised Danish citizen, in violation of Article 14 read with Article 8. The so-called “28-year rule” favoured citizens of Danish ethnic origin over naturalised citizens without sufficient justification.
Background and facts
The first applicant was a naturalised Danish citizen of Ghanaian origin; the second applicant was his Ghanaian wife. Their application for family reunification in Denmark was refused because they did not satisfy the “attachment requirement” — that their aggregate ties to Denmark be stronger than to any other country. However, that requirement was waived for persons who had held Danish citizenship for at least 28 years (and, in practice, for those born Danish). The effect was that Danish nationals of Danish ethnic origin were generally exempt from the attachment requirement, while naturalised citizens — who were more likely to be of foreign ethnic origin — were not.
The complaint
The applicants complained under Article 14 taken with Article 8 that the 28-year rule discriminated against naturalised Danish citizens on the basis of ethnic origin in the enjoyment of the right to respect for family life.
The Court’s reasoning
Applying the principle of indirect discrimination, the Grand Chamber found that the 28-year rule, although framed in neutral terms of the duration of citizenship, in practice favoured Danish nationals of Danish ethnic origin and placed at a disadvantage, or had a disproportionately prejudicial effect on, persons who had acquired Danish citizenship later in life and who were generally of a different ethnic origin. That amounted to a difference in treatment on the basis of ethnic origin.
Where a difference in treatment is based on ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible, and very weighty reasons are required. The Government’s general aims of controlling immigration and promoting integration could not justify a rule that disadvantaged naturalised citizens on ethnic grounds; the benefit of long-standing citizenship was not a sufficient objective justification for the resulting distinction. There had accordingly been a violation of Article 14 taken with Article 8.
The judgment
- by twelve votes to five, a violation of Article 14 taken with Article 8; and
- by fourteen votes to three, no need to examine Article 8 taken alone.
Legacy and subsequent case law
Biao extended the concept of indirect discrimination, developed in D.H. and Others, to the fields of immigration and citizenship. It confirms that facially neutral distinctions based on the duration or manner of acquiring nationality may amount to indirect discrimination on the basis of ethnic origin, requiring very weighty justification, and it is an important authority on family reunification.
What this means for applicants
- Neutral citizenship or residence rules that disadvantage naturalised citizens can amount to indirect ethnic discrimination under Article 14 with Article 8.
- Distinctions based on ethnic origin require very weighty reasons.
- Immigration-control aims do not automatically justify discriminatory family-reunification rules.
This page summarises a leading judgment and is not legal advice on any individual case.
Frequently Asked Questions
What did Biao v. Denmark decide?
The Grand Chamber held that Denmark’s “28-year rule” for family reunification indirectly discriminated on the basis of ethnic origin against a naturalised citizen, in violation of Article 14 taken with Article 8.
Why was the rule discriminatory?
Though neutral on its face, it favoured citizens of Danish ethnic origin and disadvantaged naturalised citizens, who were generally of a different ethnic origin — indirect discrimination requiring very weighty justification.
How does Biao relate to D.H. and Others?
It applies the concept of indirect discrimination developed in D.H. and Others to the field of immigration and citizenship.
Convention Articles engaged
Cases against this state
Related ECHR cases
- D.H. and Others v. the Czech Republic
- Nachova and Others v. Bulgaria
- Marckx v. Belgium
- Bărbulescu v. Romania
- Von Hannover v. Germany
- Osman v. the United Kingdom
Facing a similar case?
Our lawyers represent individuals before the European Court of Human Rights. Speak to an ECHR lawyer, learn how to apply to the ECHR, or check the admissibility criteria.