Alleged violation of the right to family reunification where domestic authorities assumed marriage was forced, Committee asked state party to revisit decisioning

Facts

The authors of the communication are Ms. Aden, a national of Somalia currently residing in Kenya and Mr. Hassan, a national of Denmark currently residing in Somalia, whom claim that Denmark has violated their rights under articles 17, 23 and 26 of the Covenant.

The authors met in 2012 and initated a relationship via phone, later deciding to marry. They met in person in Nairobi later in 2012 and were married 3 days later. In December 2012 they applied for family reunification in Denmark through the Embassy of Denmark in Kenya.

The Danish authorities refused to grant a residence permit to Ms. Aden on the grounds that the authors, as cousins, were considered too closely related and under domestic legislation, it was presumed that the marriage was unlikely the desire of both parties. It further considered that the declaration of the authors that they were married at their own will, and the fact that Ms. Aden was pregnant, could not lead to a different result. On appeal, the asylum board clarified that the decision could be revisited if the marriage was followed by cohabitation of a considerable duration, however in this case their statements and evidence of daily phone contact, and Mr. Hassan's three visits to his wife in Kenya after the marriage and the fact that they had a child were not sufficient to reverse the presumption.

A final appeal was declined in mid 2014. 

The authors claim that the rejection of their application for family reunification constitutes an unlawful interference by the state party in their right to family life, as protected by articles 17 and 23 of the Covenant. They allege that they did not bring the case before Danish courts as the application fee of 500 Danish kroner was not prohibitive in itself, however argued that a losing party would have to pay between 25,000 and 60,000 Danish kroner.

Merits

The Committee observed that it is uncontested that the authors were legally married in Kenya, and noted that the point of contention is the free will of both parties. The Committee found that although the reasoning of the domestic authorities was designed for protection against forced marriage, the decision of the authorities failed to take into account the authors' personal situation and the cultural context in the country of origin. On this basis, the Committee found that the state party had failed to discharge its obligations toward Mr. Hassan with regard to article 17 and 23 of the Covenant. 

Recommendations

The Committee recommended that Denmark provide Mr Hassan with an effective remedy, including making full reparation to all individuals whose Covenant rights have been violated. This requires:

• reassessment of the claim for family reunification;
• take steps to prevent similar violations from happening in the future;
• publish the present views and have them widely disseminated in the official languages of Denmark.

Implementation

The Committee requested that Denmark provide information about measures taken to give effect to the views within 180 days, or by 25 January 2020.