Case Watch: How a Decision on Danish Naturalization Law Leaves Issues Unresolved
By Laura Bingham
A case exposing the deficiencies of Denmark’s naturalization process was concluded with the European Court of Human Rights (ECHR) decision on January 19 that struck out the case as being resolved. This was a happy outcome for the applicant in H.P. v. Denmark, a 71-year-old torture survivor from Iran who, thanks to the case, is now a Danish citizen. The court appears to recognize the value of the litigation in achieving at least this result, with an award of costs to the applicant, and a nod to the Danish Ministry of Justice’s failure, to date, to address a claim for compensation. That request, as the court notes, is still pending.
But the outcome glosses over, and at times the court’s decision even misconstrues, the human story of H.P.’s encounter with years of stupefying bureaucracy.
H.P. first applied for Danish citizenship in 1998, when he was 53. Because of psychological injuries stemming from torture in his native Iran, H.P. struggled to learn Danish sufficiently well to pass the language requirement for naturalization. He took over 1,000 hours of instruction. His inability to obtain Danish nationality estranged him from his former wife and their three children. The unending process became entangled with and exacerbated symptoms of his disability: paranoia, depression, anxiety and pseudo-dementia.
H.P. filed, studied, updated, reopened and waited, for 11 years, before turning to the ECHR. Meanwhile, the government’s requirements changed every few years – in 1999 and 2002, there were exemptions for applicants with disabilities like H.P.’s; in 2006 and 2008, these were eliminated, with retroactive effect. All of this was unknown to H.P. until he received legal assistance, as he was never informed that an exemption might have been available until 2008.
Because the naturalization process in Denmark is a creature of parliamentary prerogative, decisions on applications that reach the Parliamentary Committee on Naturalization are notoriously impervious to review. Denmark’s positive action in H.P.’s case, in the court’s view, foreclosed an opportunity to scrutinize the process itself. The message, however, is important: the remedy that resolved this case was H.P.’s acquisition of Danish nationality, taking into account H.P.’s “personal circumstances” and “state of health,” in the court’s words.
In 2015, on the contrary, Denmark had already changed its naturalization policy (the fifth shift in policy since 1999), eliminating any exemption to the language requirement on account of disability. In short, if H.P. were applying for naturalization today on the same set of facts, there would be no grounds for granting him an exemption to the language requirement and his application would fail. While we cannot know what the court might have decided on the merits of H.P.’s case, Denmark’s current practice certainly runs contrary to the spirit of this decision to declare the case resolved. It also conflicts with a recent decision by the Human Rights Committee, Q v. Denmark, holding Denmark’s treatment of another applicant to be discriminatory (violating Article 26 of the ICCPR) and criticizing the lack of transparency in the naturalization process.
The decision falls far short of what should be expected of a human rights body in defending the accessibility of justice institutions and administrative procedures for persons with disabilities. This is not surprising, considering how the court has from time to time handled other procedural rights in disability cases brought to the court’s attention, particularly on delicate issues of legal capacity and access to legal representation (see this helpful discussion on the Strasbourg Observers blog).
In H.P.’s case, the court points to delays on the applicant’s part in furnishing new forms to reopen for a ninth time his application for Danish nationality in 2014, after the case was communicated and the Danish authorities sought to resolve it. Without further explanation, the court appears to conclude this is a reason to discount H.P.’s claim that the 15-year struggle for citizenship impacted his right to dignity and personal development under the European Convention on Human Rights. The court overlooks or omits the fact that requiring further paperwork contributed significantly to H.P.’s distress, which was a central part of the Article 14 claim. It is perhaps understandable why a court might shrug at the idea of signing another form or submitting oneself to just one more medical evaluation, but for H.P. these were extraordinary requests.
Ultimately, as the court was made aware, they were also wholly unnecessary, as the Danish authorities progressed the case based on the same information that had been before it for 15 years.