Q v Denmark

• Jurisdiction: Derecho Internacional
• Docket Number: (Communication No 2001/2010)
• Court: United Nations Human Rights Committee
• Date: 01 April 2015

United Nations Human Rights Committee.2

(Communication No 2001/2010)

Q

and

Denmark1

Human rights — Right to equality before the law and equal protection of the law without any discrimination — International Covenant on Civil and Political Rights, 1966, Article 26 — Whether State Party applying language requirement for naturalization in arbitrary and discriminatory manner — Requirement to give reasons for decision — Effective remedy — Whether State Party violating Article 26 of Covenant — United Nations Human Rights Committee

Summary:3The facts:—The author, an Iraqi national, arrived in Denmark in 1997 and was granted humanitarian protection. He was illiterate in both Danish and Arabic and had applied for Danish naturalization in 2005. The Ministry of Refugee, Immigration and Integration Affairs (“the Ministry”) informed the author that his application did not fulfil the Danish language proficiency required under Section 24 of the Guidelines for Naturalization.4 The author requested that he be exempted from this requirement under Section 24(3) of the Guidelines for medical reasons.5 His request was rejected by the Ministry in 2007 and the author was informed that he had failed to document severe mental illness. He then provided a medical opinion by his

psychiatrist to prove that he suffered from a severe chronic mental disorder in the form of psychosis with aural hallucinations, paranoid delusions, depression, and various physical disorders. His case was brought before the Danish Parliament's Naturalization Committee (“the Naturalization Committee”), which rejected his request without giving any reasons

The author claimed that the State Party had violated Articles 266 and 2(1)7 of the International Covenant on Civil and Political Rights, 1966 (“the Covenant”), by refusing to grant him exemption from the language requirement in an arbitrary and discriminatory manner. The State Party submitted that the author's claim fell outside the scope of Article 26 of the Covenant, as Article 26 did not apply to the granting of nationality through naturalization, on account of it being a legislative process.

Held:—The State Party had violated the author's rights under Article 26 of the Covenant.

(1) The author's communication was admissible. It was uncontested that domestic remedies had been exhausted and it had been ascertained that the matter was not being examined under another procedure of international investigation or settlement. In relation to the objection by the State Party, Article 26 provided equality before the law and equal protection of the law without any discrimination, which was applicable to States Parties in regard to their legislation and application thereof. Further, all branches of government at all levels were in a position to engage the responsibility of the State Party (paras. 6.1–6.4).

(2) Neither the Covenant nor international law in general specified criteria for granting citizenship through naturalization to States. However, when adopting and implementing legislation States Parties' authorities had to respect the applicant's rights under Article 26. There had to be reasonable and objective justification and a legitimate aim for distinctions that related to an individual's characteristics as given under Article 26, including “other status” such as disability. The Ministry did not state substantive grounds for refusal in its letter informing the author of the Naturalization Committee's decision refusing his request, nor in its subsequent letters. The State Party's argument that the Naturalization Committee's proceedings were confidential or the fact that that Committee was part of the Legislature did not exempt the

State Party from taking measures to inform the author of the reasons for the rejection. In the absence of such a justification, the State Party had failed to show that its decision not to accept the author's mental disability as a basis for language requirement exemption was reasonable and objective (paras. 7.3–7.5)

(3) The State Party was obliged to provide the author with effective remedy, including compensation and a reconsideration of his request for exemption from the language skills requirement through a procedure that took the Committee's findings into consideration. The State Party was also under an obligation to avoid similar violations in the future. It was to provide the Committee, within 180 days, with information about the measures taken to give effect to the Committee's Views. The State Party was also requested to publish those Views and to have them translated in the State Party's official language and widely distributed (paras. 9–10).

The following is the text of the Views of the Committee:

1. The author of the communication is Q, an Iraqi citizen born on 2 May 1971. He claims to be a victim of a violation by Denmark of article 26 of the Covenant.1 The author is represented.

FACTS AS PRESENTED BY THE AUTHOR

2.1 The author arrived in Denmark on 15 October 1997 and was granted humanitarian protection. On 30 April 1998, he obtained a residence permit and on 9 May 2001 he was provided with a residence permit of indefinite duration. The author is married and has three children. He is illiterate in Danish and in Arabic, his mother tongue.

2.2 On 12 May 2005, the author applied for Danish naturalization before the Copenhagen police. In that connection he was summoned for a police interview on 16 January 2006. The Ministry of Refugee, Immigration and Integration Affairs received the application from the police on 17 January 2006. On 27 January 2006, the Ministry informed the author that his application had been received and that the examination procedure would start within 12 to 16 months. On 25 June 2007 the author was requested to submit information on, inter alia, his Danish language proficiency and any criminal record and public debts. The author submitted the requested information on 2 July 2007.

2.3 On 4 July 2007, the Ministry informed the author that the documentation he had submitted regarding his participation in

language courses did not satisfy the requirement of language proficiency contained in the Guidelines on Naturalization, section 24 of which indicates that the applicant should be proficient in the Danish language and have knowledge of Danish society, culture and history. The author then requested to be exempted from the language requirement for medical reasons, pursuant to section 24, paragraph 3, of the Guidelines.2 On 5 October 2007, the Ministry notified the author that his request for exemption had been rejected and that no proper basis had been found to bring it to the attention of the Parliament's Naturalization Committee, since the author had failed to document severe physical or mental illness.

2.4 The author then provided a medical opinion from his psychiatrist, Dr S.B.J., and requested a reconsideration of his exemption request. As a result, his case was brought before the Naturalization Committee. On 3 June 2008, the Ministry informed the author that

the Committee had found no basis on which to grant the exemption. No explanation was given as to the reasons for the denial.

2.5 On 9 September 2009, Dr S.B.J. wrote to the Ministry about his medical assessment of the author. He indicated that he had been following the author since December 2007; that the author suffered from a severe chronic mental disorder in the form of paranoid psychosis and depression; that he was being treated with medication and that there was no prospect of improvement of his condition. As a result, the Ministry examined the case again. However, on 6 November 2009 the author was informed that Dr S.B.J.'s letter did not contain new information and therefore the Ministry had not found grounds to resubmit the case to the Naturalization Committee.

2.6 On 12 November 2009, Dr S.B.J. wrote to the Ministry requesting a detailed reasoning of the rejection so that he could integrate that information in the treatment of his patient in the best possible manner. He also indicated that, from a medical perspective, the denial was unfounded, since it was well established that the author suffered from the above-mentioned disorders and thus satisfied prima facie the conditions for exemption from the language requirement. He also indicated that the decision “made the continued treatment difficult, where the established medical treatment is of crucial significance for the patient to be capable of acting simply normal around his family and in social context”. On 8 December 2009, the Ministry replied that there was no basis for bringing the case before the Naturalization Committee again, that the exemption provision was open to interpretation and that the mere presentation of a case before the Naturalization Committee did not mean that the exemption would be granted.

THE COMPLAINT

3.1 The author claims that, by refusing to grant him the exemption from the language requirement that would enable him to become naturalized, the State party violated article 26 read in conjunction with article 2(1) of the Covenant. He provided ample medical evidence regarding the severe mental ailments he suffers and which make it impossible for him to learn Danish at the required level. The refusal to grant such exemption is therefore arbitrary. The failure to treat the author as a person with mental and learning disabilities and thus acknowledge the need to grant him the exemption contained in the law is a discriminatory measure and a violation of his right to equality before the law. The author adds that the measure is disproportionate to any legitimate goal.

3.2 The footnote to section 24, paragraph 4, of Circular Letter No 61 indicates that a medical certificate may be disregarded if the medical professional in question requests on his or her own initiative that naturalization be granted and has become personally involved in the case in such a manner that it may be considered doubtful whether the certificate reflects an...