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Press Release: Osman v. Denmark

16 June 2011

Judgment delivered by the European Court of Human Rights

The AIRE Centre is delighted to announce that the European Court of Human Rights has delivered its judgment in the case of Osman v Denmark, in which the AIRE Centre represented the applicant. The Court found a violation of Article 8 of the European Convention on Human Rights (right to respect for private and family life) due to the Danish authorities’ failure to re-instate the applicant’s residence status.

The case concerned a Somali national who had been living in Denmark from the age of seven and who was expelled from various schools.  At the age of fifteen, she was taken by her father to Kenya for what she (and her mother) thought would be a short stay with her paternal grandmother.  Instead, her father left her in the Hagadera refugee camp for over two years, where she provided round-the-clock care to her very ill grandmother.  She then left the camp and tried to apply for a new entry visa to return to her mother and siblings in Denmark, but was refused: under Danish law, her residence permit had lapsed, and in the meantime Danish immigration law had changed and she was now too old to be eligible for a new entry visa. 

The applicant subsequently returned to Denmark clandestinely, where she has been living, with her mother and siblings, but without residence status.  She unsuccessfully appealed the authorities’ refusal to re-instate her residence status.

The Court found that this refusal engaged the applicant’s right to respect for private life and family life.  The Court concluded that the refusal violated Article 8 because it was ‘not necessary in a democratic society’, i.e. not proportionate to the aim of immigration control.  The Court found that ‘for a settled migrant who has lawfully spent all of the major part of his or her childhood and youth in a host country, very serious reasons are required to justify expulsion’ (§ 65).  The Danish authorities had failed to show that such reasons existed in this case.  The Danish Government had argued that the refusal was justified because the applicant had been taken out of the country by her father, with her mother’s permission, in exercise of their rights of parental responsibility.  The Court agreed ‘that the exercise of parental rights constitutes a fundamental element of family life’, but concluded that ‘in respecting parental rights, the authorities cannot ignore the child’s interest including its own right to respect for private and family life’ (§ 74).  The Court found in this case that the applicant’s interests as a child had not been sufficiently taken into account.

The AIRE Centre had argued that the applicant was a victim of human trafficking, because, as a child, she had been transported to Kenya and exploited there.  The Court did not find that the Danish authorities were required to take this into account because it had not been raised at any point by the applicant at any time before the proceedings in Strasbourg.  It is unfortunate that the Court did not consider the question of intra-familial human trafficking in the light of Denmark’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings: Article 10 of that Convention places the obligation on the ‘competent authorities’ of States (including the immigration authorities and the courts) to identify victims of trafficking. 

The Court awarded the applicant the full amount she asked for by way of just satisfaction.

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