FIRST SECTION
Application no. 55607/09
H.P.
against Denmark
lodged on 1 October 2009
STATEMENT OF FACTS
The applicant, Mr H. P., is stateless. He was born in 1944 in Iran. He lives in Copenhagen.
The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 3).
He is represented before the Court by Mr Niels-Erik Hansen, a lawyer practising in Copenhagen and Mr Jens Brøsted, a Special Advisor for the “Documentation and Advisory Centre on Racial Discrimination” (DACoRD) an NGO.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant lived in Iran, where he was imprisoned and subjected to torture for five years.
In 1987, with his wife and two children, the applicant escaped to Turkey, where the United Nations High Commissioner for Refugees considered that he should be granted refugee status on the condition that he rejected any right to return to Iran. In July 1989 the applicant applied for re-settlement.
In November 1989, upon a recommendation by the Danish Directorate for Foreigners, the applicant and his family entered Denmark where they obtained a permanent residence permit in 1990.
As a result of the torture to which the applicant had been subjected, he has suffered severe mental health problems for years, including insomnia, anxiety, depression, pseudo-dementia, memory loss and difficulties in communicating, also in his native language.
Thus, despite having taken numerous language classes, the applicant has never succeeded in mastering the Danish language. He did manage, however, in 2006 to obtain a certificate for “Danish Language level 2”.
Due to the injuries caused by the torture, the applicant was granted early retirement on 8 October 1997.
Between 1998 and 2009, the applicant applied for Danish nationality eight times in vain, the first four times under Circular no. 90 of 1999, the fifth time under Circular no. 55 of 2002, the sixth and seventh times under Circular no. 9 of 2006, and the last time under Circular no 61 of 22 September 2008. His requests were refused because he did not speak the Danish language sufficiently well.
In 2002 it was a requirement to be granted Danish citizenship, inter alia, that applicants pass a Danish language test at the level of “general test 1”. From 2006 the requirements for Danish language skills became stricter and applicants were required to pass a so-called “level 3 examination” and in addition to pass a citizenship test documenting their knowledge of Danish society, culture and history.
Under Circular no. 90 of 1999, by virtue of Section 23, an applicant could be exempted from the language requirement “where the person in question ...proved unable to learn Danish to a sufficient degree due to mental disorder, for example as a result of torture.”
That exemption was removed under Circular no. 9 of 2006 although an exemption was made for an illness “of a very serious nature” in “exceptional circumstances” documented by a statement from a medical professional.
On the eighth occasion, the applicant, represented by DACoRD, invited the Ministry of Justice to reopen the case maintaining, among other things, that exemption from Danish language skills, which had been possible under the 1999 Circular, in force at the time of his original application, wrongly had never been considered or applied to the applicant’s case.
On 4 March 2009 the Ministry of Justice reopened the applicant’s case and it was sent to the Parliamentary Naturalisation Committee for a review.
On 12 March 2009 the Parliamentary Naturalisation Committee in camera denied the application. It concluded that the applicant was not eligible for citizenship under the criteria of the 1999 Circular, which would have been applicable at the time of his initial application. Additionally, he had not met the increased requirements of the law applicable at the time as set forth in the 2006 Circular, which required him both to speak Danish proficiently and to pass a test on Danish culture, society and history. Finally, the Parliamentary Naturalisation Committee concluded that the applicant was not eligible for a dispensation.
In the present case, the applicant maintains that the refusal to grant him citizenship had an impact on his private life in that he is perpetually stateless. This entails notably that he is disenfranchised and unable to obtain a Danish passport. Thus, although having lived in Denmark since 1989, that is almost twenty-three years, due to the refusal he is deprived of his right to “personal autonomy and to form the political and legal bonds that connect him to Denmark, to acquire and exercise rights and obligations inherent in a political membership and to share the same legal status as his family in Denmark, who have obtained Danish nationality, as well as his right to dignity and to personal development”.
B. Relevant domestic law
1. Naturalisation
According to section 44 of the Danish Constitution, no alien can obtain Danish nationality other than by an Act of Parliament. The procedure for application for nationality involves an interview with the police, consideration by a relevant ministry (currently the Ministry of Justice and previously the Ministry of Refugee, Immigration and Integration Affairs) and a decision by the Parliamentary Committee on Naturalisation, which is made up of seventeen members. Its decision to grant or refuse nationality is discretionary and not subject to any form of judicial review. Two bills are passed per year.
2. Circular Letter No. 61 of 22 September 2008 on Naturalisation
(For all Police Commissioners, the Commissioner of the Copenhagen Police, all Regional State Administrations, the High Commissioner of Greenland and the High Commissioner of the Faroe Islands) Guidelines for naturalisation
1. On 22 September 2008, the parties in government, the Danish Liberal Party (Venstre) and the Conservative People’s Party (Det Konservative Folkeparti), and the Danish People’s Party (Dansk Folkeparti) entered into an Agreement on the handling of EU law aspects of the right of free movement following the ruling of the European Court of Justice in the Metock case. In that connection, the parties to the Agreement considered it relevant to have a closer look at the conditions for obtaining Danish nationality.
2. The Agreement implies that the requirement of proof of an applicant’s skills in the Danish language and knowledge of Danish society, culture and history has been tightened. Applicants thus have to take and pass the Danish 3 Examination of the language centres with an average mark of at least 4, or one of the examinations listed in Schedule 3, which are on a level with the Danish 3 examination, with an average mark of at least 4, and take and pass a citizenship test documenting their knowledge of Danish society, culture and history. The Agreement also implies a tightening of the condition of self-support.
3. The parties to the Agreement also decided that the Agreement of 22 September 2008 will not otherwise revise the guidelines stipulated in the Agreement on Nationality concluded on 8 December 2005 by the Danish Liberal Party and the Conservative People’s Party, the two parties in government, and the Danish People’s Party. That Agreement laid down the future general guidelines for the preparation of naturalisation bills by the Minister of Refugee, Immigration and Integration Affairs (the Minister of Integration). The Agreement of 8 December 2005, as amended by the Agreement of 22 September 2008, has been printed as a schedule to this Circular Letter.
4. Pursuant to section 30(1) of the guidelines, the Agreement will enter into force on 10 November 2008 and will apply to the examination of all applications for naturalisation submitted after the date of entry into force. It follows from section 30(2) of the guidelines that applicants who passed the citizenship test at the examinations in May 2007, June 2007, December 2007 or June 2008 will still satisfy the condition of proof of knowledge of Danish society, culture and history set out in section 24(2) of the guidelines if they submit their application for Danish nationality to the police before 1 July 2009 in accordance with the relevant provisions of the guidelines, or their request for reopening of an application previously refused to the Ministry of Integration before 1 July 2009.
It also appears from section 30(3) of the guidelines that the provisions of the Agreement set out in Circular Letter No. 9 of 12 January 2006 on new guidelines on naturalisation still apply to applications submitted before 10 November 2008. Moreover, the provisions of the Agreement set out in Circular Letter No. 55 of 12 June 2002 on New Guidelines for Listing in Naturalisation Bills also apply to applications submitted before 12 December 2005, except that Part 5 on offences and section 24(3) on exemption from the conditions of skills in the Danish language, etc., of the Agreement set out in Circular Letter No. 9 of 12 January 2006 apply regardless of the application date. Finally it appears from section 30(4) of the guidelines that the provisions of the Agreement also apply to the examination of requests for reopening of applications previously refused submitted to the Ministry of Integration after 10 November 2008.
AGREEMENT ON NATIONALITY:
The Danish Liberal Party (Venstre), the Danish People’s Party (Dansk Folkeparti) and the Danish Conservative Party (Det Konservative Folkeparti) hereby agree to lay down the following general guidelines on the preparation of naturalisation bills by the Minister of Integration. The guidelines will be made public. It was also agreed in connection with the drafting of the guidelines in the previous agreement of 8 December 2005 to initiate a study on the scope of the UN Convention on the Reduction of Statelessness adopted on 30 August 1961 and on the possibilities of adjusting the practice for the purpose of limiting dual nationality. The parties to the Agreement will consider the future regulations in this field in the light of this study.
Part 1 Introduction
Pursuant to section 44 of the Danish Constitution, no alien can obtain Danish nationality other than by an Act of Parliament. Naturalisation is therefore the exclusive prerogative of the Legislature. Bills will be introduced twice a year by the Minister of Integration. The guidelines describe the requirements to be satisfied for the Government to list an applicant in a naturalisation bill without prior submission to the Naturalisation Committee of the Danish Parliament. Persons listed in the Government’s naturalisation bill will therefore either satisfy the requirements of these guidelines or have been listed in the bill following submission to the Naturalisation Committee of the Danish Parliament. In connection with the Parliamentary readings of the bills, the parties to this Agreement will therefore vote for the Government’s naturalisation bills.In connection with their examination of applications for naturalisation or when otherwise providing guidance for persons who wish to make such application, the authorities may not seek to cause the persons concerned to abandon their wish to have their applications examined. The procedure for examination of applications for nationality has two phases. The first phase is handled by the Ministry of Integration according to the guidelines. The second phase consists in the reading of naturalisation bills in the Danish Parliament. In principle, examination of applications for nationality by the Ministry of Integration does not involve decisions pursuant to law, but the preparation of bills. The examination carried out by the Ministry of Integration to ascertain whether an applicant satisfies the requirements of the guidelines is very similar to the kind of examination normally carried out by the public administration. Therefore, the rules of the Public Administration Act and other principles of public administration should be observed in the examination of naturalisation cases. Concerning the second phase, it should be noted that the Ministry of Integration shall supply various surveys on the applicants for the examination of each bill by the Danish Parliament and shall reply to questions from the Committee. Such information may form the basis of private members’ amendments to remove individuals from the bill.
Part 2 General provisions
1. Persons who satisfy the conditions of these guidelines with respect to residence, age, renunciation of present nationality, general conduct, overdue debt to public authorities, self-support, command of the Danish language and knowledge of Danish society, culture and history will be listed in the Government’s naturalisation bills. It is a condition for listing that the applicant makes the solemn declarations which are necessary for the Danish Parliament to examine the application.
2. It is a condition for listing in a naturalisation bill that the applicant swears allegiance and loyalty to Denmark and Danish society and declares his or her willingness to observe Danish legislation and respect fundamental Danish principles of law.
3. The requirements concerning period of residence and waiting period following any criminal offences must be satisfied by the end of the month in which it is expected that the relevant naturalisation bill will be passed.
4. (1) It is a precondition for listing in a naturalisation bill that the applicant agrees to renounce his or her present nationality. Unless the applicant loses his or her present nationality automatically by naturalisation, release from his or her present nationality is required as a condition for acquiring Danish nationality. (2) Persons with refugee status in Denmark or persons from countries where experience shows that it is impossible or implies extreme difficulties to obtain release from nationality are not subject to this requirement. The same applies where an applicant has been denied release, or where it is documented that the applicant has made a serious, but unsuccessful attempt to be released from his or her present nationality.
Part 3 Residence
5. (1) It is a condition for listing in a naturalisation bill that the applicant has been issued with a permanent residence permit for Denmark and is resident in Denmark. This does not apply to persons covered by the provisions of sections 8(4) and 12, section 14, first sentence, and section 16. (2) Persons covered by the provisions of section 7, first sentence, section 13, section 14, third sentence, and sections 15, 17 and 18 may be listed in a naturalisation bill even though they have not been issued with a permanent residence permit.
6. The residence periods referred to in sections 7 and 8 are reckoned from the date when the applicant was first issued with a residence permit.
7. Nationals of the Nordic countries may be listed in a naturalisation bill after two consecutive years of residence. Persons recognised as refugees, persons comparable with these, and stateless persons may be listed in a naturalisation bill after eight consecutive years of residence. Other aliens may be listed after nine consecutive years of residence.
8. (1) A person who lives in marriage with a Danish national may be listed in a naturalisation bill after six consecutive years of residence in Denmark when the marriage has lasted and the spouse has been Danish for not less than three years. Where a marriage is of two years’ duration, seven years of residence in Denmark are required, and where a marriage is of one year’s duration, eight years of residence are required. (2) Up to one year’s cohabitation prior to the marriage is considered equivalent to marriage during the period in question. (3) Where the spouses have different residences and it is doubtful for that reason whether they cohabit, the application must be submitted to the Naturalisation Committee of the Danish Parliament. (4) Where the applicant is resident abroad due to the spouse’s work, the applicant may only be listed in a naturalisation bill if the applicant’s aggregate previous period of residence in Denmark satisfies the residence requirement of subsection (1) hereof. It is a condition that the spouse’s work abroad serves the interests of Denmark.
9. (1) Where the applicant’s residence in Denmark has been interrupted by periods of residence abroad, the applicant may only be listed in a naturalisation bill if the applicant’s aggregate period of residence in Denmark is not less than the period mentioned in section 7 or 8 and it follows that the applicant intends to remain in Denmark. It is furthermore a condition that: (2) Special guidelines for listing in a naturalisation bill in cases where the aggregate period of residence abroad is longer than the periods stated in subsection (1) hereof appear in paragraph 1 of Schedule 1.
10. Applicants who have entered Denmark prior to attaining the age of 15 may be listed in a naturalisation bill after attaining the age of 18. It is a condition that any education or training which the applicant has received while resident in Denmark is of a Danish nature.
11. Applicants who have undergone a substantial part of their general education or vocational training in Denmark may be listed in a naturalisation bill after four years of residence in Denmark. It is a condition that the education or training is of a Danish nature and of not less than three years’ duration unless completed earlier by an examination or a similar test.
12. Applicants who were born to a Danish mother within the period from 1 January 1961 to 31 December 1978 and who could have acquired Danish nationality provided the mother had submitted a declaration to that effect within the period from 1 January 1979 to 31 December 1981, cf. section 2(2) of Act No. 117 of 29 March 1978, may be listed in a naturalisation bill irrespective of residence in Denmark.
13. The general residence requirements may be modified for persons who are former Danish nationals or who are of Danish descent as well as for Danish-minded persons from South Schleswig. Special guidelines for listing in a naturalisation bill in such cases appear in paragraphs 2, 3 and 4 of Schedule 1.
Part 4 Naturalisation of children
14. Children under the age of 12 who are adopted by Danish nationals, including the adoption of stepchildren, and who do not become Danish nationals pursuant to section 2A of the Danish Nationality Act, may be listed in a naturalisation bill irrespective of residence in Denmark. It is a precondition that the adoption is valid under Danish law. Where the adoption took place between the attainment of 12 and 18 years of age, the child may be listed in a naturalisation bill if, before attaining the age of 18, it has been resident in Denmark for not less than two years.
15. Children who, due exclusively to their parents’ separation, have failed to become Danish nationals as dependants in connection with the naturalisation of one of the parents may be listed in a naturalisation bill if it is established that the parents have resumed marital relations and the effects of their separation have thus ceased to exist. i) the aggregate period of residence abroad is not more than one year; or ii) the periods of residence abroad are not more than two years and are exclusively due to education or training, military service in the State where the applicant has been a national so far or visits paid to close family due to serious illness in the family.
16. Children born out of wedlock of an alien mother and a Danish father may be listed in a naturalisation bill irrespective of residence in Denmark if the father shares parental authority.
17. In accordance with the 1989 UN Convention on the Rights of the Child, children who were born stateless in Denmark may be listed in a naturalisation bill if they are resident in Denmark.
18. Children may only be listed independently in a naturalisation bill if they have no possibility of listing in a naturalisation bill as dependents of one of the parents. The possibility of listing as a dependant exists where one of the parents who is not a Danish national shares parental authority and is resident in Denmark.
Part 5 Offences
19. (1) It is a condition for listing in a naturalisation bill that the applicant declares not having committed any offence comprised by Parts 12 and 13 of the Criminal Code. A person making a false declaration on this point may be deprived of his or her Danish nationality pursuant to section 8A of the Danish Nationality Act. ...
Part 6 Overdue debts to public authorities
22. An applicant cannot be listed in a naturalisation bill if the applicant has overdue debts to public authorities regarding ...
Part 7 Skills in the Danish language and knowledge of Danish society, culture and history
24. (1) It is a condition for listing in a naturalisation bill that the applicant documents skills in the Danish language by a certificate of the Danish 3 Examination of the Danish language centres or one of the examinations listed in Schedule 3. (2) It is furthermore a condition for listing in a naturalisation bill that the applicant documents knowledge of Danish society, culture and history by a certificate of a special citizenship test. (3) Where exceptional circumstances make it appropriate, the question of whether exemption from the conditions of subsections (1) and (2) hereof may be granted will be submitted to the Naturalisation Committee of the Danish Parliament. The question will be submitted if the applicant documents that he or she suffers from a physical or mental illness of a very serious nature and consequently finds himself or herself to be incapable – or to have no reasonable prospects – of satisfying the conditions of subsections (1) and (2) hereof. (4) The circumstances referred to in subsection (3) hereof must be documented by a certificate from a medical professional. The certificate must state whether the treatment options are exhausted and whether the person will become able to acquire skills in the Danish language at the required level in future.
Part 8 Submission and examination of applications for naturalisation
25. (1) An application for naturalisation must be submitted on a special application form to the Police Commissioner of the police district where the applicant lives. Applicants living in the Municipality of Copenhagen shall submit their applications to the Commissioner of the Copenhagen Police. (2) In connection with the submission of an application for naturalisation, a charge of DKK 1,000 is payable, cf. section 12 of the Naturalisation Act and Executive Order No. 162 of 7 March 1995 of the Ministry of Justice.
26. Upon receipt of the application, the police shall review the information contained in the application form and the enclosures together with the applicant. In that connection, the police shall ensure that the applicant has understood the significance of giving information and making statements by solemn declaration. The police shall then forward the file to the Ministry of Integration.
27. In respect of children under the age of 18 who are adopted by Danish nationals, including the adoption of stepchildren, and who do not become Danish nationals pursuant to section 2A of the Danish Nationality Act, an application for naturalisation may be submitted together with the application for adoption. The adoption authority shall forward the application direct to the Ministry of Integration.
28. (1) The Ministry of Integration shall examine whether the applicant satisfies the conditions laid down in the guidelines and shall, where appropriate, list the applicant in a naturalisation bill. (2) In addition to the applicant’s own information, the examination by the Ministry of Integration is based on information in the Civil Registration System, the Central Register of Claims and the Central Criminal Register. If necessary, information will be procured from other authorities.
29. (1) After the introduction of a naturalisation bill, the Ministry of Integration shall send a survey of persons included in the bill, listed by nationality, to the Naturalisation Committee of the Danish Parliament. (2) After the first reading of a naturalisation bill, the Ministry of Integration shall send the following surveys to the Naturalisation Committee of the Danish Parliament for use by the Committee in its consideration of the bill and the parties’ decisions on any private members’ amendments: -
Part 9 Entry into force, etc.
30. (1) This Agreement enters into force on 10 November 2008 and applies to the examination of applications for naturalisation submitted as from that date. (2) Applicants who passed the citizenship test at the examinations in May 2007, June 2007, December 2007 or June 2008 still satisfy the condition of proof of knowledge of Danish society, culture and history set out in section 24(2) of the guidelines, even though the examination was taken and assessed under Executive Order No. 278 of 22 March 2007 on Citizenship Tests. To apply under the exception scheme, applications for Danish nationality must be submitted to the police before 1 July 2009 in accordance with the relevant provisions of the guidelines, and requests for reopening of an application previously refused must be submitted to the Ministry of Integration before 1 July 2009. (3) For applications submitted before 10 November 2008, including requests for reopening of applications, the provisions of Circular Letter No. 9 of 12 January 2006 on new guidelines for naturalisation still apply. For applications submitted before 12 January (i) Survey of persons listed in the bill upon submission to the Naturalisation Committee of the Danish Parliament. (i) Survey of persons in the bill sentenced to imprisonment, measures pursuant to Part 9 of the Criminal Code or suspended sentences. December 2005, including requests for reopening of applications, the provisions of the Agreement set out in Circular Letter No. 55 of 12 June 2002 on new guidelines for listing in naturalisation bills apply, except that Part 5 on offences and section 24(3) on exemption from the conditions of skills in the Danish language, etc., of the Agreement set out in Circular Letter No. 9 of 12 January 2006 apply even though the application was submitted before 12 December 2005. (4) This Agreement also applies to the examination of requests for reopening of applications previously refused submitted to the Ministry of Integration after 10 November 2008.
COMPLAINTS
The applicant complains that the Danish Authorities’ refusal to grant him Danish citizenship was arbitrary and in breach of Article 8 of the Convention.
Moreover, he invoked Article 14 in conjunction with Article 8 in that the Danish Authorities had failed to treat him differently as a vulnerable person with a learning disability.
Finally, he complains that the lack of any adversarial process by which he could challenge the decision to refuse to grant him Danish citizenship breached his rights under Article 13 of the Convention.
QUESTIONS TO THE PARTIES
1. Did the decision of 12 March 2009 by the Parliamentary Naturalisation Committee to deny the applicant Danish citizenship raise an issue under Article 8 of the Convention?
2. In the affirmative, has there been a violation of the applicant’s right to respect for his private life, contrary to Article 8 of the Convention?
3. Did the applicant have at his disposal an effective domestic remedy for his Convention complaint under Article 8, as required by Article 13 of the Convention?
Full & Egal Universal Law Academy