Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2531/2015 * , ** , ***

Communication submitted by:Nimo Mohamed Aden and Liban Muhammed Hassan (represented by counsel, Eddie Omar Rosenberg Khawaja)

Alleged victims:The authors

State party:Denmark

Date of communication:15 September 2014 (initial submission)

Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 16 January 2015 (not issued in document form)

Date of adoption of Views:25 July 2019

Subject matter:Rights to private and family life

Procedural issue:Exhaustion of domestic remedies

Substantive issue:Family unification

Articles of the Covenant:17, 23 and 26

Articles of the Optional Protocol:2 and 5 (2) (b)

1.The authors of the communication are Nimo Mohamed Aden, a national of Somalia born on 1 January 1990 in Somalia and residing in Kenya and Liban Muhammed Hassan, a national of Denmark born on 17 October 1984 in Somalia. They claim that the State party has violated their rights under articles 17, 23 and 26 of the Covenant. The Optional Protocol entered into force for the State party on 23 March 1976. The authors are represented by counsel.

The facts as submitted by the authors

2.1In early 2012, the authors were introduced to each other by Mr. Hassan’s brother and initiated a relationship by telephone. In their telephone conversations, they decided to marry. They met in person for the first time on 6 June 2012 in Nairobi and were married there three days later, on 9 June 2012. Mr. Hassan went back to Denmark and Ms. Aden remained in Kenya. On 13 December 2012, they applied for family reunification in Denmark, through the Embassy of Denmark in Kenya, where Ms. Aden resided.

2.2On 6 February 2013, the Danish Immigration Service refused to grant a residence permit to Ms. Aden, pursuant to section 9 (8) of the Aliens Act, on the grounds that the authors, as cousins, were considered closely related under that section of the Act and that, under the presumption of that provision, it was therefore considered unlikely that the marriage had been contracted according to the desire of both parties. The Immigration Service found that no exceptional reasons had been provided to support nonetheless granting a residence permit to Ms. Aden. The Immigration Service found that it could not be assumed that the authors had had a long and thorough acquaintance, as they had not lived together prior to or even after the marriage, except during the three holiday visits of Mr. Hassan to Kenya. It further considered that the declaration of the authors, according to which they were married at their own will, and the fact that Ms. Aden was pregnant, could not lead to a different result.

2.3On 18 February 2013, the authors sent a follow-up letter to the Immigration Service, in which they stated that they both had entered the marriage voluntarily and that it was not a forced marriage. The Immigration Service considered the letter to be an appeal against its decision and forwarded it to the Immigration Appeals Board. On 25 July 2013, the authors had their first child, who is a Danish citizen.

2.4On 13 August 2013, the authors decided to reapply for family reunification through the Embassy of Denmark in Kenya, on the basis that the marriage had lasted over a year. On 15 October 2013, the Immigration Service again rejected their application, pursuant to section 9 (8) of the Aliens Act, on the same grounds.

2.5On 13 November 2013, the Immigration Appeals Board held an oral hearing in connection with the appeal dated 18 February 2013. Although Mr. Hassan provided a statement, Ms. Aden was not heard and no other witnesses were called. On the same day, the Board upheld the decision of the Immigration Service of 6 February 2013 not to grant a residence permit to Ms. Aden on the grounds that it remained questionable whether the marriage had been entered into voluntarily, as they were cousins and that there were no exceptional circumstances that would justify changing the assessment made by the Immigration Service. The Board found that the authors had not had a long and thorough acquaintance prior to the marriage, as their contact had only been by telephone before they decided to get married, and they were married only three days after they first met on 6 June 2012 in Nairobi. The Board clarified that the presumption could be reversed if the marriage was followed by cohabitation of considerable duration. It determined, however, that, in the case of the authors, their statement that the marriage was based on their will and love, their daily telephone contact, 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.

2.6Mr. Hassan wished to pursue the case before the Danish courts in order to seek a judicial review of the decision of the Immigration Appeals Board. As he lacked financial means, he submitted an application for free legal aid to the Legal Aid Office at the Department of Civil Affairs on 19 December 2013. His application was rejected on 13 March 2014. The Department of Civil Affairs found that there were no reasonable grounds to believe that the Danish courts would issue a different decision and rule in favour of the authors.

2.7On 7 July 2014, Mr. Hassan appealed the decision of the Department of Civil Affairs before the Appeals Permission Board, which upheld the decision to refuse the authors’ application for legal aid on the same grounds as the Department of Civil Affairs had.

The complaint

3.1The 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 argue that the application in their case of the presumption contained in section 9 (8) of the Aliens Act amounts to a reversal of the burden of proof. They submit that they were not able to effectively challenge and reverse the presumption, as Ms. Aden was not given the opportunity to provide an oral statement before the Immigration Appeals Board. Thus, the authors claim that the migration authorities concluded that their marriage was a forced marriage, without having conducted a thorough investigation and by placing the burden of proof solely on them, which amounts to a violation of both articles 17 and 23 of the Covenant.

3.2The authors also claim a violation of their rights under article 26 of the Covenant, since the application of the presumption contained in section 9 (8) has affected them disproportionately and differently from other spouses who have a different ethnic origin from that of the authors.

3.3The authors submit that all available domestic remedies have been exhausted, as the decision of the Immigration Appeals Board of 13 November 2013 cannot be further appealed administratively. The authors claim that the judicial review for which they appeal the decision of the Board is not accessible or effective, as both the Department of Civil Affairs and the Appeals Permission Board rejected their application for free legal aid on the basis of their assessment that the Danish courts would not reach a different decision from that of the Immigration Appeals Board.

State party’s observations on admissibility and the merits

4.1In its observations on the admissibility of the communication dated 13 March 2015, the State party submits that the communication should be considered inadmissible for non-exhaustion of domestic remedies under article 5 (2) (b) of the Optional Protocol.

4.2The State party notes that, pursuant to section 63 of the Constitution of Denmark, as well as in Danish case law, decisions of the Immigration Appeals Board by which an application for residence is refused under section 9 (1) (i), with reference to section 9 (8), of the Aliens Act may be brought before the Danish courts. Therefore, the State party submits that the authors have had the opportunity to bring the decision of the Board of 13 November 2013 before the Danish courts, which could have reviewed whether the decision was consistent with the current law, including the international obligations of Denmark. The submission of the case to the domestic courts may have constituted an effective remedy available to the authors in this case. Therefore, the State party submits that, by having refrained from bringing the decision of the Board before the courts, the authors have failed to exhaust all available domestic remedies.

4.3The State party further observes that the assessment by the Department of Civil Affairs that there was no prospect of legal review in favour of the authors’ allegation in its decision of 13 March 2014 on legal aid, as well as the affirmation by the Appeals Permission Board on 7 July 2014, do not affect the authors’ right under section 63 of the Constitution to challenge the decisions of the Immigration Appeals Board in a court, and therefore they have failed to exhaust all available domestic remedies.

4.4In its further observations on the merits and admissibility dated 6 November 2015, the State party reiterates that the authors have failed to exhaust all available domestic remedies and that the communication should be considered inadmissible pursuant to article 5 (2) (b) of the Optional Protocol. If the Committee finds no basis for considering the communication inadmissible pursuant to article 5 (2) (b) of the Optional Protocol, the State party contends that the authors have failed to establish a prima facie case for the purpose of admissibility of their communication under articles 17, 23 and 26 of the Covenant and that the communication should therefore be considered inadmissible as it is manifestly unfounded. In the alternative, the State party submits that the authors’ claims are without merit as it has not been established that the decision made by the Immigration Appeals Board on 13 November 2013 is in violation of articles 17, 23 and 26 of the Covenant.

4.5The State party submits that the fact that the authors were refused free legal aid has no significance regarding the admissibility of the communication. The State party observes that the reason that the authors were refused free legal aid in Denmark was that neither the Department of Civil Affairs nor the Appeals Permission Board, which is an independent quasi-judicial body, found that the authors had reasonable grounds for reasonable prospects of success in a judicial review. The State party further finds that the court fee for civil non-pecuniary claims (500 Danish kroner) is not a prohibitive cost for the authors to proceed to a judicial review. The State party also observes that nothing prevents the authors from instituting proceedings before the courts without legal representation. It further submits that legal aid (oral advice) under section 323 (2) of the Administration of Justice Act can be invoked.

4.6Regarding the authors’ claims regarding the violation of articles 17 and 23, the State party notes that the authors fall within the rule of presumption in section 9 (8) of the Aliens Act because they are closely related. The State party observes that during the proceedings the authors have failed to substantiate that the marriage was contracted at the desire of both parties. On the contrary, the State party notes that several circumstances have confirmed the statutory presumption that the marriage was not contracted at the desire of both parties.

4.7The State party further notes that the rule of presumption in section 9 (8) of the Aliens Act was drafted while taking into account the international obligations of Denmark, including a generally recognized principle of international law that marriage should be entered into only with the free and full consent of the intending spouses. Moreover, the immigration authorities are obliged to apply the provision in accordance with the country’s international obligations.

4.8As for the procedure of assessment of the immigration authorities, the State party observes that a specific and individual assessment was conducted on the basis of information provided by the authors. The State party notes that both authors had the opportunity to submit written briefs in the case, and Mr. Hassan had the opportunity to make an oral statement before the Immigration Appeals Board on 13 November 2013.

4.9The State party stipulates that there is no basis for doubting the assessment made by the Immigration Appeals Board, according to which the authors have failed to establish that they have a family life worthy of protection. Therefore, the marriage between the authors must be considered to have been contracted against the desire of both parties, for which reason the authors cannot claim protection under articles 17 and 23 of the Covenant.

4.10The State party notes the authors’ claim that Ms. Aden also ought to have been given the opportunity to make an oral statement before the Immigration Appeals Board. However, the State party reiterates that she had the opportunity to submit a written brief on her own initiative, but that the Board, on the basis of a specific assessment, did not consider it necessary to obtain further information from her for the case. It is also observed that the Board may only summon applicants staying lawfully in Denmark to make an oral statement before it. Against this background, the State party submits that articles 17 and 23 of the Covenant have not been violated.

4.11With regard to article 26, the State party submits that the authors have not been subject to direct or indirect discrimination in connection with section 9 (8) of the Aliens Act. The State party points out that the Aliens Act applies to all aliens applying for residence in Denmark under the general rules of the Act, regardless of their nationality and ethnicity. Against this background, the State party finds that the rule in section 9 (8) of the Aliens Act does not exclusively or disproportionately affect persons having a particular race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The State party finds that the authors have failed to substantiate and prove how they have been subject to indirect discrimination.

4.12The State party further notes that the rule in section 9 (8) of the Aliens Act is based on objective and reasonable grounds.

Authors’ comments on the State party’s observations on admissibility and the merits

5.1On 6 May 2015, the authors submitted their comments on the State party’s observations on the admissibility of the communication. They reiterated their previous arguments on the admissibility of the case and insisted that article 5 (2) (b) of the Optional Protocol had to be assessed in the light of whether the specific domestic remedies that were claimed to be available by a State party were effective and available to the authors in reality.

5.2The authors invoke the jurisprudence of the Committee that the requirement of exhaustion of the domestic remedies does not render a communication inadmissible if the specific remedy in a case does not have any prospect of offering effective redress. In this regard, the authors reiterate that the Department of Civil Affairs refused their application for legal aid, owing to the fact that there was no reasonable basis to believe that a different decision would be reached by the Danish courts. The authors reiterate that this decision of the Department of Civil Affairs was appealed to the Appeals Permission Board, which also refused the request for legal aid on the same basis.

5.3The authors further invoke the jurisprudence of the Committee that the requirement of exhaustion of domestic remedies does not render the communication inadmissible if the specific remedy in a case is not available to an indigent applicant who does not have access to legal aid to pursue that remedy. The authors refer again to the fact that they requested free legal aid to bring litigation to the Danish courts because they fulfilled the requirement of low income, as stipulated of section 325 of the Administration of Justice Act.

5.4On 25 January 2016, following the State party’s additional observations on the question of admissibility and the merits of the communication dated 6 November 2015, the authors submitted their additional comments.

5.5In their comments on admissibility, the authors reiterate their comment dated 6 May 2015. In addition, they consider that the case laws referred to in the State party’s observation on admissibility do not apply to the present case. Those cases mainly pertain to questions of a lack of financial means to initiate legal proceedings before the courts. At the same time, in the authors’ case, it is declared by the authorities that the authors had no reasonable grounds to succeed with legal proceedings before the Danish courts when they applied for free legal aid to initiate legal proceedings. The authors submit that, according to international case law, the State party has to provide evidence that the remedy available in the authors’ case offers a reasonable prospect of success for the authors. In this case, the authors note that the State party fails to provide any evidence of a reasonable prospect of success for the judicial review of their case.

5.6The authors also object to the arguments of the State party on the question of the cost of bringing proceedings before the Danish courts. The State party alleges that the refusal of legal aid did not have an impact on the procedure, as the very low legal fees would not hinder access to the remedy even for indigent persons. The authors agree that the court fee for initiating legal proceedings is a maximum of 500 Danish kroner, but court cases of alleged violations of international obligations and the Aliens Act reveal that the costs for the losing party would be between 25,000 and 60,000 Danish kroner, depending on whether a judgment is appealed or not. The authors claim that, given that the State party has already found that the authors had no prospect of succeeding in their claim before the courts, the potential cost is very likely to be between 25,000 and 60,000 Danish kroner, not 500.

5.7With respect to the merits of the case, the authors uphold the submission that the State party has violated the authors’ rights under articles 17, 23 and 26 of the Covenant. On articles 17 and 23, the authors claim that, when couples are legally married, protected family life should exist and family life is not dependent on whether the spouses live together. The authors reiterate that the mere fact of being cousins does not provide any indication in itself that the marriage is not voluntary. They further claim that all the elements raised by the State party, such as Ms. Aden’s age, the fact that her brother initiated the contact between the spouses, the fact that the spouses met only three days before the marriage and the fact that they do not live together, do not separately or jointly provide any evidence to label their relationship a forced marriage.

5.8The authors note section 323 (2) of the Administration of Justice Act, which refers to oral legal aid provided under section 323 (1), which corresponds to the financial support provided by the Ministry of Justice of Denmark to give legal assistance in the form of oral legal advice. However, such advice is usually very basic and general, in particular on family law, consumer law or basic social law issues. If citizens attempt to obtain advice on litigation, they are requested to seek proper legal assistance through specific counsel. This also applies when advice is sought on issues pertaining to specialized legal areas.

5.9With regard to article 26, the authors further claim that the impact of section 9 (8) of the Aliens Act, on the basis of the default rule of presumption of forced marriages, is much greater on a spouse of non-Danish ethnic origin and with a Muslim background, given that it is more common for cousins to marry in the Muslim culture than in other cultures. The authors therefore submit that the effect of section 9 (8) of the Aliens Act amounts to indirect discrimination, as it affects applicants and spouses of non-Danish ethnic or national origin in a disproportionate manner. The authors note that the State party has failed to provide any statistical support for its submission that the rule applies to all persons applying for residence, and has not shown any evidence that the rule has been applied at all in cases involving non-Muslim applicants. The authors claim that this indirect differential treatment can therefore only be justified if the rule of presumption in section 9 (8) of the Aliens Act pursues a legitimate aim and has a reasonable relationship of proportionality between the means employed and the aim sought to be realized.

5.10The authors do not contest that, in section 9 (8) of the Aliens Act, the State party pursues the legitimate aim of ensuring that forced marriage does not constitute the basis for a residence permit. However, the authors contest the use of the fact that the spouses are related as the sole and decisive factor and claim that the provision does not strike the right balance. It is furthermore emphasized that less intrusive means could be applied in order to achieve a goal of withholding residence permits on the basis of forced marriage. The authors conclude that the State party’s application of section 9 (8) of the Aliens Act to the applicants’ marriage, resulting in the rejection of their application for family reunification, constitutes indirect discrimination in violation of article 26 of the Covenant.

State party’s additional observations

6.1On 27 June 2016, the State party submitted additional observations on the authors’ comments. The State party observes that the conditions for providing free legal aid to assess the reasonable prospects of success of the case does not mean that the case has been decided, or that the courts are bound by the assessment of the viability of the case made in the administrative decision of the application for free legal aid. As regards the authors’ submission that the State party must provide evidence that the remedy available in their case offered them reasonable prospects of success, the State party claims that the decisions of migration authorities in which family reunification is refused under section 9 (8) of the Aliens Act have been reviewed by the courts, which set aside the administrative decisions and conducted a specific assessment of the parties’ statements and information in the light of the international obligations of Denmark. Accordingly, the State party finds that it has sufficiently established the following facts: that the authors had the opportunity to bring before the Danish courts the decisions of the Immigration Appeals Board in which the applications for family reunification were refused; that the Danish courts were capable of providing redress for the authors’ complaints; and that this opportunity offered them reasonable prospects of success.

6.2With regard to the authors’ submission concerning legal costs for unsuccessful legal proceedings, the State party observes that the applicable rules ensure that legal costs are shared in a reasonable manner. The State party also observes that the fact that the authors may be ordered to pay the costs of unsuccessful legal proceedings does not prevent them from instituting proceedings before the Danish courts. The State party reiterates that there is no statutory requirement for legal representation in cases concerning family reunification or for the examination by the court of whether the refusal of family reunification is in accordance with the international obligations of Denmark. The State party also notes that there is no requirement to exhaust futile remedies, namely remedies that objectively have no prospect of success. However, the State party observes that the authors’ subjective belief in the futility of domestic remedies does not absolve them of the requirement to exhaust such remedies.

6.3The State party also maintains that there is no violation of articles 17 and 23 of the Covenant, as the authors failed to substantiate in the proceedings that their marriage was contracted at the desire of both parties and they do not have a family life that Denmark is obliged to protect. The State party reiterates that Ms. Aden had the opportunity to submit a written brief on her own initiative and that, on the basis of a specific assessment, the Immigration Appeals Board did not consider it necessary to obtain further information from her for the present case.

6.4The State party also rejects the authors’ submission that they have been subject to discrimination as Muslims from Somalia in the light of the statistical data that they provided. The State party reiterates that the Aliens Act applies to all aliens applying for residence in Denmark regardless of their ethnic origins and other traits. It added that, when section 9 (8) of the Aliens Act is applied, an individual assessment is made for each case.

Authors’ comments on the State party’s additional observations

7.1On 12 July 2016, the authors provided their comments on the State party’s additional observations dated 27 June 2016. The authors reiterate that the Danish immigration authorities’ conclusion that the authors did not have any reasonable prospects of success in a judicial review should be considered a decisive element in assessing whether domestic remedies have been exhausted. The authors claim that the State party concluded, through the final decision of the Appeals Permission Board, that the court decision would not be favourable to them, and has removed the presumed effectiveness of that legal remedy. The authors allege that it would then be unreasonable for them to pursue that remedy. They reiterate that the reason that they did not appeal to the Danish courts was not because they believed that it would be ineffective, but because they were de facto barred from accessing the courts as they lacked the financial means to initiate court proceedings by virtue of the State party’s assessment that such proceedings would be ineffective. The authors further reiterate there was no direct and clear proof that they would have a reasonable prospect of success before the courts, which they allege the State party should provide.

7.2On the question of relevant and realistic costs to initiate legal proceedings before the courts, the authors submit that the State party fails to provide any case law supporting the view that section 312 (3) of the Administration of Justice Act can be and has been applied in cases similar to theirs and has resulted in alleviating their risk of facing legal costs. The authors find that the State party’s argument that there are no statutory requirements for legal representation in family reunification cases is misleading, as the State party failed to provide any case law from Danish courts in which litigation in a case related to family reunification has been carried out without legal representation. The authors refer once again to the case law listed in their additional observations of 25 January 2016, in which they indicate that legal costs cannot be limited to 500 Danish kroner and that there are no cases in which the State party has actively supported the application of the rules for legal cost sharing, such as section 312 (3) of the Administration of Justice Act.

7.3With regard to the violation of article 26, the authors contend that the statistical information presented by the State party shows that section 9 (8) of the Aliens Act is mostly applied to applicants from specific countries and with a Muslim religious background. The authors thus reiterate that the application of section 9 (8) is without doubt biased against Muslim applicants.

7.4The authors further reject the State party’s argument that such an assessment is based on factual and objective criteria. They claim that the use of the status of spouses being related as the sole and decisive factor for assessment, which shifts the burden of proof on the voluntary nature of their marriage to the spouses, does not strike the right balance in the light of the purpose of the law. They allege that Denmark has failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the differential treatment. In this regard, the authors further submit that the State party is trying to legitimize the differential treatment with biased and unsubstantiated views on the lifestyle and religious practices of specific non-Danish ethnic groups and Muslims, as read in the preparatory work for section 9 (8) of the Aliens Act.

Additional observations

From the State party

8.1On 8 November 2016, in response to the authors’ comments dated 12 July 2016, the State party submitted additional observations, in which it generally refers to its observations of 13 March 2015 and 6 November 2015 and to its additional observations of 27 June 2016. The State party initially observes that the authors’ observations of 12 July 2016 do not provide any new or specific information beyond the information taken into account by the State party in its previous observations.

8.2Regarding the authors’ claim under article 26 of the Covenant and their comments on the statistical data provided by the State party, the latter reiterates that all applications for family reunification from spouses who are also close relatives or otherwise closely related parties are examined in the light of section 9 (8) of the Aliens Act regardless of the spouses’ nationality, religion and ethnicity.

8.3The State party rejects the authors’ allegation that the decision under section 9 (8) was based only on one sole and decisive factor, namely the family relationship between the spouses. The State party reiterates that decisions on applications for residence in Denmark are made on the basis of all information available on the matter. The couple was thus given the opportunity to rebut the presumption that their marriage was contracted against the desire of both parties, and if that presumption is rebutted, section 9 (8) of the Aliens Act does not prevent the granting of residence when the spouses are relatives.

8.4With regard to the authors’ claim that the State party failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect differential treatment, the State party further claims that any differential treatment, if it occurs, is based on factual and objective criteria. The purpose of section 9 (8) is to help persons at risk of being forced or pressured into marrying a close relative or an otherwise closely related party against their own will, and that this objective must be considered a compelling or very weighty reason.

Issues and proceedings before the Committee

Consideration of admissibility

9.1Before considering any claims contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

9.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

9.3The Committee observes that, under article 5 (2) (b) of the Optional Protocol, it is precluded from considering a communication unless it has been ascertained that domestic remedies have been exhausted.

9.4The Committee notes the State party’s challenge to the admissibility of the communication on the grounds that domestic remedies have not been exhausted. The Committee notes that the authors have only exhausted administrative procedures and did not institute proceedings before a court to challenge the Immigration Appeals Board decision of 13 November 2013, in which their applicationfor family reunification was refused. However, the Committee also notes that the authors submit that domestic legal remedies were not available or effective in their case, as their application for free legal aid was refused by the Legal Aid Office at the Department of Civil Affairs and the Appeals Permission Board on the basis of the decision of the Supreme Court of Denmark on 30 January 2007, and that there were no grounds for reasonable prospects of success in a judicial review.

9.5In this connection, for the purpose of article 5 (2) (b) of the Optional Protocol, the Committee recalls that domestic remedies must not only be available, but also effective, which also depends on the nature of the alleged violation. It also recalls that an applicant must make use of all judicial or administrative avenues that offer a reasonable prospect of redress. The Committee recalls that domestic remedies need not be exhausted if they objectively have no prospect of success: where under applicable domestic laws the claim would inevitably be dismissed, or where established jurisprudence of the highest domestic tribunals would preclude a positive result.

9.6In the present case, the Committee notes the arguments of the State party according to which the fact that the authors were not granted free legal aid because the case had no prospect of success was not enough justification for the authors not to pursue the legal avenue at their disposal, since courts are not bound by the assessment of the Legal Aid Office. The Committee also notes that the State party does not argue that the court could have reached a different interpretation of the impugned sections of article 9 (8) of the Aliens Act, on the basis of which the authors’ application was denied. In this respect, the State party fails to establish sufficiently that there were reasonable grounds to believe that the Danish courts would issue a different decision from that of the Immigration Service and that the courts would rule in their favour. The Committee, taking into account the clear wording of the decision of 13 March 2014 by the Legal Aid Office to reject the authors’ request for legal aid on the basis of the unlikely prospect of a judicial review, concludes that the lack of prospects regarding the remedies rendered them ineffective.

9.7The Committee thus considers that the requirements of article 5 (2) (b) of the Optional Protocol have been met in the present case.

9.8The Committee notes the State party’s challenge to the admissibility of the communication on the grounds that the authors’ claim under articles 17, 23 and 26 of the Covenant is unsubstantiated. However, the Committee considers that, for the purpose of admissibility, the authors have adequately explained the reasons for which their rights to family reunification are violated under articles 17 and 23 of the Covenant. In terms of the authors’ claim of a violation of their rights under article 26 of the Covenant, the Committee considers that the authors have not substantiated their allegation that the application of the presumption contained in section 9 (8) has affected them disproportionately and differently from other spouses who have a different ethnic origin from the authors. It therefore declares the communication admissible insofar as it raises issues under articles 17 and 23 and proceeds with its consideration of the merits.

Consideration of the merits

10.1The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

10.2The Committee notes 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, because of the presumption contained in section 9 (8) of the Aliens Act, which amounts to a reversal of the burden of proof.

10.3The Committee recalls its general comment No. 16 (1988) on the right to privacy, in which, regarding the term “family”, it is stated that the objective of the Covenant is to require that for the purpose of article 17 the term be given a broad interpretation to include all those comprising the family, as understood in the society of the State party concerned. In its general comment No. 19 (1990) on the family, the Committee also notes that the concept of family may differ in some respects from State to State, and even from region to region within a State, and emphasizes that, when a group of persons is regarded as a family under the legislation and practice of a State, it must be given the protection referred to in article 23.

10.4The Committee recalls that, under article 23 of the Covenant, the protection of family life, including the interest in family reunification, is guaranteed. The Committee recalls that the term “family”, for the purposes of the Covenant, must be understood broadly as including all those comprising a family as understood in the society concerned. The right to the protection of family life is not necessarily displaced by geographical separation, infidelity or the absence of conjugal relations. However, there must first be a family bond to protect.

10.5The Committee recalls that it is generally for the organs of States parties to examine the facts and evidence of the case in question in order to determine the application of the domestic law, in this case section 9 (8) of the Aliens Act, unless it can be established that the assessment was clearly arbitrary or amounted to a manifest error or denial of justice.

10.6In the present case, the Committee observes that it is uncontested that the authors are legally married in Kenya and that what is contested is mainly how the authors could have proved that their relationship was not a forced marriage and that they entered into a marital relationship on the basis of their free and full consent. The Committee notes the finding of the Immigration Appeals Board that the authors failed to establish that there were substantial grounds for believing that, with the result that the authors were not able to effectively challenge and reverse the presumption of forced marriage under section 9 (8) of the Aliens Act. The Committee notes that the Board based its reasoning on the fact that the authors are cousins and did not live together before and after their marriage, and concluded that they failed to prove that they had a family bond to be protected. However, the Committee recalls that this decision was made without giving Ms. Aden the opportunity to provide an oral statement and with no other witness called before the Board. Therefore, the Danish immigration authority did not assess the authors’ marital relationship on the basis of Ms. Aden’s direct testimony. The Committee also observes that the State party’s assessment criteria regarding how the authors could prove their marital relationship other than by their cohabitation was not clear after the authors had repeatedly informed the Danish authorities that their marriage was based on their consent, that they had a child and that they frequently communicated by telephone and during Mr. Hassan’s visit to his spouse, which suggests that their relationship, lasting for the past seven years, falls within the meaning of “family” under articles 17 and 23.

10.7The Committee notes the State party’s claim that the rule of presumption in section 9 (8) of the Aliens Act was drafted for the purpose of protecting marriage entered into with free and full consent. However, in view of the above, the Committee considers that the immigration authorities, in the assessment of the marital relationship of the authors, failed to adequately take into consideration the authors’ marital relationship in the context of their personal situation and the cultural context in their country of origin.

10.8With regard to the authors’ claims under articles 17 and 23, the Committee observes that the State party’s action amounted to a barrier to the family being reunited in Denmark. The Committee takes the view that the common residence of husband, wife and child has to be considered as the normal situation of a family. Hence, the rejection of the visa of a spouse to a country where another spouse and their child live could amount to an interference within the meaning of article 17. The Committee thus considers that the State party failed to discharge its obligation under articles 17 and 23 to respect the family unit.

11.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose an unjustified interference in family life and a violation by the State party of articles 17 and 23 of the Covenant in respect of Mr. Hassan. Having concluded that, in the present case, there has been a violation of articles 17 and 23 of the Covenant with regard to Mr. Hassan, the Committee decides not to examine separately the claim of his spouse.

12.Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide Mr. Hassan with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated to provide the author with an effective re-evaluation of his claim, on the basis of an assessment of family reunification. The State party is also under an obligation to prevent similar violations from occurring in the future.

13.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to its Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party.

Annex I

Individual opinion of Committee member Yuval Shany (dissenting)

1.I regret not being able to join the members of the Committee who supported the finding of a violation in this case. While I agree that the facts of the case disclose a violation of the Covenant on their merits, I believe that the Committee should have rejected the communication for lack of exhaustion of domestic remedies. I also have some doubts regarding the Committee’s jurisdiction ratione personae over Nimo Mohamed Aden.

2.It is uncontested that the authors’ application was rejected by the Danish Immigration Service, that their appeal to the Immigration Appeals Board was rejected and that they did not pursue further their application before the Danish courts. However, Mr. Hassan did try to obtain financial aid to submit his case to the court, and his application was rejected by the Department of Civil Affairs on the basis of an assessment that litigation had no reasonable chances of success. The Committee regarded this latter assessment as indicative of a lack of effective remedies and noted that the State party failed to refute this indication (para. 9.6).

3.As indicated by the Committee, the standard applied in previous Views by the Committee is that remedies are ineffective if they “objectively have no prospects of success: where under applicable domestic laws the claim would inevitably be dismissed, or where established jurisprudence of the highest domestic tribunals would preclude a positive result”. The Committee has also opined before that “mere doubts” about the success of remedies do not render them ineffective.

4.Clearly, the authors had doubts about the prospects of their appeal, given the presumption against the authenticity of contracted marriage and marriage between relatives found in article 9 (8) of the Aliens Act, and the restrictive interpretation by the Supreme Court of the exception to the presumption in its decision on the matter of 30 January 2007. These doubts were compounded by the negative assessment of the likelihood of success by the legal aid authorities – a decision that was, however, issued in connection with the authors’ eligibility criteria for legal aid and has no legal effect on the merits of the case itself.

5.Nevertheless, low prospects for success in a legal process are not tantamount to having no prospects for success or facing inevitable failure, especially in a case that is fact-based (whether a marriage was genuine) and where there does not appear to be a series of court decisions constituting “established jurisprudence”, which would necessarily preclude a positive result.

6.One may recall in this connection that the requirement of exhaustion of domestic remedies is intended to allow a State party to have an opportunity “to redress it by its own means, within the framework of its own domestic legal system” an alleged violation of international law. By allowing the authors to circumvent the Danish legal system and come directly before the Committee, by reason of the assessment of the low probability of success, the Committee has deprived the State party, without good reason, of an opportunity to redress a violation of the Covenant (a legal claim that does not appear to have been raised before the immigration bodies).

7.It can also be noted in this regard that the legal fees for accessing the Danish legal system in immigration cases are low (500 Danish kroner) and that, although the authors claim that a loss in the case might have resulted in the imposition of costs (para. 5.6), the State party has established that courts have the discretion not to impose costs if such a waiver is justified for particular reasons (para. 6.2). Under these conditions, I find it difficult to regard recourse to Danish courts, even without legal aid, as ineffective or prohibitively expensive.

8.Finally, I have doubts as to the applicability of the protections offered under articles 17 and 23 of the Covenant with regard to Ms. Aden while she was present in Kenya. Unlike Mr. Hassan, whose rights under the Covenant have clearly been implicated, as he was living in Denmark and under its jurisdiction, Ms. Aden submitted an application to enter Denmark for family reunification purposes through the Embassy of Denmark in Kenya, and it is not clear whether such an interaction with the Danish authorities brings her under the jurisdiction of Denmark for the purposes of her ability to enjoy the rights set forth in articles 17 and 23. Since I am of the view that the case is inadmissible, I would, however, defer judgment on this point.

Annex II

Individual opinion of Committee member Andreas Zimmermann (partly dissenting)

1.While I concur with the outcome of the complaint, as adopted by the majority of the Committee, I have to respectfully dissociate myself as far as the reasoning for the complaint brought by Nimo Mohamed Aden is concerned.

2.As confirmed by previous decisions of the Committee, before taking a decision on the admissibility of a given complaint, it must first examine, if necessary ex officio (without the State party having raised the matter), whether it has jurisdiction to receive and consider the communication under article 1 of the Optional Protocol, taking into account article 2 (1) of the Covenant.

3.Accordingly, by dismissing the complaint of Ms. Aden for not having exhausted local remedies, be it only as a matter of judicial expediency, the opinion of the majority might be misunderstood as implying that, even as far as her compliant is concerned, the Committee had jurisdiction to receive and consider her communication.

4.However, Ms. Aden never had any form of territorial contact with Denmark nor had she ever been subject to the State party’s jurisdiction. The mere fact of submitting a request for family unification with the Danish authorities from abroad and the fact that her husband lived in Denmark did not expose her to the jurisdiction of Denmark, even if broadly interpreted.

5.Accordingly, the Committee ought to have rejected her communication for being outside the Committee’s competence under the Optional Protocol, while rejecting her husband’s communication as being inadmissible for not having exhausted available domestic remedies.