IMMIGRATION AND INTEGRATION (2)

The progressive tightening of immigration laws under the previous minority Government turned Denmark during the noughties from a liberal to an illiberal country. This change was the price paid by the Government for the steadfast support of the right-wing Danish People's Party; but it should also be pointed out that it was a price they were willing to pay.

The core of the tightening was the so-called 24-year rule, first introduced in 2002. The rule prevents married couples, where one of the partners is from outside the E.U., from being issued with a residence permit in Denmark for the foreigner unless both of them are 24 or older (i.e. the marriage is recognised, but with adverse practical consequences). The professed aim of the legislation was to reduce forced marriages. Subsequent E.U. court decisions produced a loophole, whereby a residence permit would have to be issued, if the couple in question had already settled in another E.U. country first (the judgment was based on the free movement of people principle). But it still severely restricted the ability of young Danes to marry whom they would like.

Other countries looked at the Danish experiment, and decided to copy it. One of those was the U.K., which raised the age limit from 18 to 21. That decision prompted various court cases, and in October the Supreme Court, the country's highest judicial body, gave a ruling (in the the so-called Quila and Bibi cases). By 4-1 they ruled that the two decisions in question (concerning marriages to a Chilean and a Pakistani respectively) had breached the U.K. partners' human rights; furthermore, although being asked to decide only on the cases before them, they could not see how any similar decision would not breach the U.K. partner's human rights.

Interfering with people's human rights - as restricting their ability to marry clearly is - is allowed under human rights law. But it can only be done if the objective is clear, and if the means of carrying out the objective is proportionate. It is on these grounds that the U.K.'s blanket policy broke down.

The official objective, as in Denmark, was to limit forced marriage, where one partner (usually the girl, and often, though not exclusively, from the Indian subcontinent) is forced against their will to marry someone else. This is a legitimate objective. But no research was carried out to confirm whether the objective was indeed being met, other than anecdotal discussions which resulted in vague answers. On the other hand, it was easy to quantify the number of people who had been turned down because of age in their applications for resident permits for their partners; this was in the thousands. If the benefits were uncertain (and, to the extent that they were not, they were under a hundred) while the disbenefits were in the thousands, then the policy could not possibly be proportionate. Either in these two cases, or any other.

Indeed, the evidence mirrored quite clearly the Danish experience. Here, concrete evidence of supposedly prevented forced marriages is thin on the ground. But what is known is that, for example in 2007, more than 1,000 Danes aged 18-24 moved to live in Sweden, most of them just across the water to Malmo, from where they commuted back to their jobs or studies in Copenhagen. Everything pointed to the reason being Sweden's more liberal immigration policy with respect to marriages with people from outside the E.U.

Might Denmark's rule also be struck down?  At one point it looked as if the new Coalition Government would do just that. However, the original rule was supported by the then opposition Social Democrats, who were at the time desperate not to seem soft on immigration. It did not, therefore, survive the Coalition negotiations earlier this autumn, though it may be struck down by the European Court of Human Rights, if a challenge eventually gets that far.

Walter Blotscher