S.O., Somali national, v. Denmark in a violation of articles 3 and 8 of the Convention

The author S.O. born in Somalia, lived in Kenya from 1991 to 1995. In 1994 the author’s father and a sister were granted asylum in Denmark. In 1995 the author, who at the relevant time was seven years old, her mother and three siblings joined family in Denmark. From 1995 until 2002, the author attended various schools, some of which expelled her due to disciplinary problems. S.O. returned to Kenya in 2003 and took care of her parental grandmother.
The author spent the formative years of her childhood and youth in Denmark, namely from the age of seven to fifteen years old. She speaks Danish and received schooling in Denmark until August 2002. Her divorced parents and older siblings live in Denmark. The applicant therefore had social, cultural and family ties in Denmark. The author’s father was a recognized refugee from Somalia.
Her application in August 2005 to re-enter Denmark was refused but she re-entered the country illegally, in 2007.
Three months before the author turned eighteen years old, she contacted the Danish Embassy in Nairobi with a view to returning to live with her mother and siblings in Denmark.
The Immigration Service found that the author’s residence permit had lapsed pursuant to section 17 of the Aliens Act because she had been absent from Denmark for more than twelve consecutive months; because she had not contacted the Immigration Service until 2005; and because there was no information indicating that she could not have contacted the authorities in due time. They also considered that the author was not entitled to a new residence permit under section 9, subsection 1 (ii), of the Aliens Act, in force at the relevant time, since the author was 17 years old and the said provision only extended a right to family reunification to children below the age of 15.
In 2007 the author appealed against the decision and maintained that it had not been her decision to leave the country; that from the refugee camp where she lived with her grandmother she was not able herself to go to Nairobi; and that during her stay outside Denmark she had not stayed in her country of origin.
The Ministry of Refugee, Immigration and Integration Affairs upheld the decision by the Migration Service. In 2008, the High Court upheld the City Court’s decision. Leave to appeal to the Supreme Court was refused in 2008.
During the author’s stay in Denmark, the author has not applied for asylum; therefore, the Danish authorities have not had the opportunity to consider whether the applicant would risk being subjected to treatment contrary to Article 3 upon return to Somalia.
The author was still a minor when she applied to be reunited with her family in Denmark. She had reached the age of majority when the refusal to reinstate her residence permit became final in 2008, when leave to appeal to the Supreme Court was refused.
In a number of cases involving young people, the following factors have been taken into account:
– that their relationship with their parents and other close family members also constituted “family life”;
– social ties between settled migrants and the community in which they live form part of the notion of “private life” within the meaning of Article 8;
– regardless of the presence or absence of “family life”, the expulsion of a settled migrant thus constitutes an interference with his or her right to respect for private life. Accordingly, the measures complained of affected both the author’s “private life” and her “family life”;
– although the legislation at issue aimed at discouraging parents from sending their children to their countries of origin to be “re-educated” in a manner their parents consider more consistent with their ethnic origins, the children’s right to respect for private and family life cannot be ignored.
The ECHR notes:
– the immigration authorities had powers to issue a residence permit to the applicant if exceptional reasons made it appropriate, including regard for family unity. However, under both provisions the immigration authorities found against the applicant.
– the applicant’s view that her father’s decision to send her to Kenya for so long had been against her will and not in her best interest, was disregarded by the authorities. The EHCR agrees that the exercise of parental rights constitutes a fundamental element of family life, and that the care and upbringing of children normally and necessarily require that the parents decide where the child must reside and also impose, or authorize others to impose, various restrictions on the child’s liberty. Nevertheless, in respecting parental rights, the authorities cannot ignore the child’s interest including its own right to respect for private and family life.
– the author’s view on her right to respect for family life was also disregarded;
– as from 1 July 2004, when the author was still in Kenya, the law reducing the right to family reunification to children under fifteen years old instead of eighteen years old entered into force. The applicant and her parents could not have foreseen this amendment when they decided to sent the applicant to Kenya.
EHCR decided that the complaint concerning Article 8 is admissible and the remainder of the application inadmissible. There has been a violation of Article 8 of the Convention.
The EHCR awards the author EUR 15,000 in respect of non-pecuniary damage and EUR 6,000 in respect of costs and expenses.

17. November 2023

HUDOC 38058-09