Denmark refused to grant the applicant an exemption from the language proficiency requirement and the nationality test in order to become naturalised. The applicant claimed that Denmark violated his rights under Article 26 of the Covenant. The Human Rights Committee considered that, in failing to provide the applicant with any information about the reasoning in its decision on his application or the grounds for refusing his application for an exemption from the language proficiency requirement and the nationality test, Denmark had failed to demonstrate that its decision was based on reasonable and objective grounds. Therefore, the Committee found that the applicant's rights under Article 26 of the Covenant had been violated.
- Articles 2(1) and 26 of the International Covenant on Civil and Political Rights
- Articles 2 and 5(2)(b) of the Optional Protocol to the International Covenant on Civil and Political Rights
The applicant, a stateless Palestinian person born in 1956, was granted a permanent residence permit in Denmark in 2002 and applied for nationality through naturalisation in Denmark in 2005. His application was rejected.
The applicant had been diagnosed with chronic post-traumatic stress disorder and reapplied for nationality through naturalisation in 2013. Based on his medical diagnosis, he applied for an exemption from the language proficiency examination and the nationality test.
In numerous medical certificates submitted with his application for naturalisation, the applicant’s medical diagnosis was described as a long-term impairment negatively affecting his cognitive functions and his linguistic skills in both Danish and Arabic. According to the medical certificates, he was also diagnosed with difficulties in concentrating, memory impairment, and his treating physician therefore assessed it as being unrealistic for him to attend language classes or to participate in a language proficiency examination.
In 2015, his application for Danish nationality was denied. He was informed that he did not satisfy the language proficiency requirement and the requirement to provide evidence of having passed a nationality test. He was informed that his case had been presented to the Parliamentary Naturalisation Committee, who determined that no exemption could be granted. Further, he was informed that the decision was not subject to the provisions of the Public Administration Act on providing reasons for decisions, and that the decision was not subject to appeal to any other authority.
The applicant claimed that Denmark violated his rights under Article 26 ICCPR, read in conjunction with Article 2(1), by the refusal of the Danish authorities to grant him an exemption from the language proficiency requirement.
He claimed that the rejection was discriminatory based on his disability status and arbitrary. He noted that he had submitted clear evidence of his medical diagnosis, which prevented him from learning Danish at the required level. He submitted that the domestic regulations were disproportionate and did not pursue a legitimate aim. The applicant referred to the Committee’s jurisprudence in Q v. Denmark (CCPR/C/113/D/2001/2010) in which it found a violation of Article 26 in a similar case.
The applicant argued that there were no effective domestic remedies available to him. He noted that in any event he could not have applied for judicial review of the negative decision as he was not aware of the Naturalisation Committee’s reasoning in his case.
Denmark submitted that the communication should be found inadmissible for non-exhaustion of domestic remedies under Article 5(2)(b) of the Optional Protocol and as manifestly unfounded under Article 2 thereof. Alternatively, Denmark submitted that the communication was without merit.
On the merits, Denmark argued that the Covenant does not convey a specific right to nationality, and that international law does not give rise to any free-standing obligation of States to grant nationality to persons permanently resident in their territory. Denmark submitted that States enjoy a wide margin of appreciation when laying down conditions for nationality as they consider necessary to ensure a genuine link between the State and individuals applying for nationality. It argued that Danish language skills, combined with knowledge of Danish society, culture and history, are considered crucial for integration into Danish society and such conditions must therefore be considered legitimate. Exemptions are only granted in exceptional cases.
The State party disputed the applicant's claim that he had been deprived of the right to equality before the law arguing that his application for naturalisation had been dealt with in the same manner as all other applications for naturalisation from applicants in a similar situation.
The Committee did not consider an examination of whether Denmark violated its non-discrimination obligations under Article 2(1), when read in conjunction with Article 26, to be distinct from an examination of the violation of the applicant's rights under Article 26. The Committee therefore considered it unnecessary to review the applicant’s claim under Article 2(1) of the Covenant.
The Committee considered that the applicant had sufficiently substantiated his claims for the purpose of admissibility and declared his claims under Article 26 of the Covenant admissible.
Regarding the merits, the Committee noted that the issue before the Committee was whether, by refusing to grant the applicant an exemption from the language proficiency requirement and the nationality test in order to become naturalised, Denmark violated his rights under Article 26 of the Covenant.
The Committee noted that the applicant did not challenge the language requirements in general but only that the requirement had been applied to him in an arbitrary and discriminatory manner. This issue concerns the application of domestic legislation and assessment of facts and evidence, which is in principle for national organs. However, the lack of reasoning of the parliamentary decision rejecting the application for naturalisation forces the Committee to assess the factual elements of the case against the domestic legislation in order to determine whether such application was discriminatory.
The Committee recalled that Article 26 provides an autonomous right prohibiting discrimination in law or in fact in any field regulated and protected by public authorities and that the application of the principle of non-discrimination contained in that article is not limited to those rights provided for in the Covenant. The Committee noted that not every distinction, exclusion or restriction based on the grounds listed in the Covenant amounts to discrimination, as long as it is based on reasonable and objective criteria, in pursuit of an aim that is legitimate under the Covenant. The Committee recalled that neither the Covenant nor international law in general spells out specific criteria for the granting of nationality through naturalisation and that States are free to decide on such criteria. However, when adopting and implementing legislation, States parties’ authorities must respect their obligations under Article 26 of the Covenant. The Committee recalled that Article 26 requires reasonable and objective justification and a legitimate aim for distinctions that relate to an individual’s characteristics enumerated in the article, including 'other status' such as disability.
In failing to provide the applicant with any information about the reasoning in its decision on his application or the grounds for refusing his application for an exemption from the language proficiency requirement and the nationality test based on his medical health status, Denmark had 'failed to demonstrate that the refusal to grant the exemption was based on reasonable and objective grounds'. (paragraph 8.7) Further, the lack of information about the reasoning and lack of transparency of the procedure made it very difficult, if not impossible, for the applicant to submit further documentation or reapply for nationality through naturalisation. In the Committee's view, the fact that the Naturalisation Committee was part of the legislature did not exempt Denmark from taking measures to ensure that the applicant was informed, even if in brief, of the substantive grounds of the decision. It considered that, in the absence of such justification, Denmark had failed to demonstrate that its decision not to grant the exemption was based on reasonable and objective grounds.
The Committee therefore concluded that there was a violation of the applicant's rights under Article 26 of the Covenant.
A judicial review of the decision was not an effective remedy for the applicant in concreto. The Committee therefore considered that it was not precluded by article 5(2)(b) of the Optional Protocol from considering the present communication. The Committee considered that the applicant had sufficiently substantiated his claims for the purpose of admissibility and declared his claims under Article 26 of the Covenant admissible.
The Committee considered that, in failing to provide the applicant with any information about the reasoning in its decision on his application or the grounds for refusing his application for an exemption from the language proficiency requirement and the nationality test, Denmark had failed to demonstrate that its decision was based on reasonable and objective grounds. Therefore, the Committee concluded that the applicant's rights under article 26 of the Covenant had been violated.
- Q v. Denmark (CCPR/C/113/D/2001/2010)
- European Court of Human Rights, Nazari v. Denmark, application No. 64372/11, Decision, 6 September 2016
- G. v. Australia (CCPR/C/119/D/2172/2012)
- Poliakov v. Belarus (CCPR/C/111/D/2030/2011)
- Simms v. Jamaica (CCPR/C/53/D/541/1993)
- Arenz et al. v. Germany (CCPR/C/80/D/1138/2002)
- Arutyunyan v. Uzbekistan (CCPR/C/80/D/917/2000)
- Fernández Murcia v. Spain (CCPR/C/92/D/1528/2006)
- Brooks v. Netherlands, communication no. 172/1984
- Althammer et al. v. Austria (CCPR/C/78/D/998/2001)
- O’Neill and Quinn v. Ireland (CCPR/C/87/D/1314/2004)
- Yaker v. France (CCPR/C/123/D/2747/2016)
- Hebbadj v. France (CCPR/C/123/D/2807/2016)
- Genero v. Italy (CCPR/C/128/D/2979/2017)
- Borzov v. Estonia (CCPR/C/81/D/1136/2002)