Q v Denmark

Parties (including notable third parties)

Q (author and alleged victim); Denmark (state party)

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Summary of Facts

The author was an Iraqi national born in 1971. He arrived in Denmark in 1997 and was granted humanitarian protection. He obtained a residence permit in Denmark in 1998 and was provided with a residence permit of indefinite duration in 2001. He was illiterate in Danish.

In 2005, the author submitted an application for naturalisation to the Danish Ministry of Refugee, Immigration and Integration Affairs (the “Ministry”).

Section 24(1) of the Danish Guidelines on Naturalization (the “Guidelines”) relevantly provided that an applicant for naturalisation must provide certain evidence of proficiency in the Danish language. Section 24(3) of the Guidelines relevantly provided that the Danish Parliament’s Naturalization Committee may exempt an applicant from the language requirement in section 24(1) where he or she is unable to satisfy that requirement due to a serious physical or mental illness.  Where an applicant met all requirements for naturalisation under the Guidelines (or an exemption was granted by the Naturalization Committee), he or she would be listed in a naturalisation bill to be passed by the Danish Parliament.

In 2007, the Ministry informed the author that documentation he had submitted regarding his participation in language courses did not satisfy the language requirement in Section 24 of the Guidelines.

The author then provided the Ministry with an opinion from his psychiatrist and requested that he be exempt from the language requirement due to medical reasons. As a result, the Ministry provided the author’s application to the Naturalization Committee. The application was accompanied by medical reports stating that the author suffered from a number of severe mental illnesses and other physical disorders.

In 2008, the Ministry informed the author that the Naturalization Committee had considered his application but found no basis on which to grant an exemption. Neither the Ministry nor the Committee provided reasons for the denial.

In 2009, the author’s psychiatrist wrote to the Ministry about his medical assessment of the author and to request detailed reasoning for the refusal to exempt the author from the language requirement. The Ministry responded that the psychiatrist had not provided new information and there was no basis to resubmit the case to the Naturalization Committee.

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Legal Arguments

Legal arguments by the Author

The author claimed that, by refusing to grant him an exemption from the language requirement on the basis of the medical evidence he had provided, the State Party violated his rights to equality before the law and equal protection of the law under Article 26 of the International Covenant on Civil and Political Rights.

The author did not challenge the legitimacy of the language requirement under Danish law. Rather, he argued that the requirement had been applied to him in an arbitrary or discriminatory manner that disregarded his mental and learning disabilities. He also claimed that irrelevant factors, such as the author’s ethnic origin, may have influenced the Naturalization Committee’s decision.

Legal arguments by the State Party

The State Party argued that the author’s communication was inadmissible as naturalisation in Denmark was a legislative process to which Art 26 did not apply.

In relation to the merits of the author’s communication, the State Party argued that there had been no violation of Art 26 as States are entitled under international law to exercise broad discretion in conferring nationality by way of naturalisation and in defining the requirements for obtaining nationality. The State further argued that the author had not provided evidence to show that other persons in a similar situation had been treated more favourably than him.

Outcome

Admissibility

The UN Human Rights Committee (“HRC”) rejected the State Party’s argument that Art 26 did not apply to the author’s claim. The HRC considered that Art 26 applies to the legislation of States and prohibits discrimination in any field regulated and protected by public authorities. Accordingly, the author’s claim under Art 26 was held to be admissible.

Article 26

The HRC reaffirmed that Art 26 requires a State’s adoption and application of legislation (including in relation to naturalisation) to be non-discriminatory. Art 26 requires that there must be reasonable and objective justification, and a legitimate aim, for distinctions that relate to the individual characteristics listed in Art 26, including “other status” such as disability.

The HRC noted that the Ministry’s communication to the author did not contain any substantive grounds for refusing to grant an exemption, notwithstanding that the author had provided medical evidence which appeared to satisfy the requirements for an exemption under Danish law. The State Party therefore failed to demonstrate that the Naturalization Committee’s decision was based on reasonable and objective grounds.

The fact that the Naturalization Committee was part of the legislature did not exempt the State Party from taking measures to give the author, at least in brief form, substantive reasons for the Naturalization Committee’s decision.

Based on those findings, the HRC concluded that the State Party violated the author’s rights under Art 26.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	International Covenant on Civil and Political Rights 1966	Article 26
Domestic	Circular Letter No. 61 (Denmark) 22 September 2008	Section 24

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Niels Petersen, 'The Implicit Taxonomy of the Equality Jurisprudence of the UN Human Rights Committee' (2021) 34(2) Leiden Journal of International Law 421.

• Petersen points out that disability is not a characteristic explicitly mentioned in Article 26 of the International Covenant on Civil and Political Rights. However, it is now widely regarded as a ‘suspect criterion’ (ie. a criterion on which discrimination may occur), as reflected in the adoption of the UN Convention on the Rights of Persons with Disabilities which recognises and specifically protects individuals with disabilities.
• In Q v Denmark, the UN Human Rights Committee argued that the State Party’s decision discriminated based on disability and was not justified because it failed to demonstrate that the refusal to grant an exemption was based on ‘reasonable and objective’ grounds. The author refers to this case in support of their critique of the HRC’s approach to finding violations of Art 26 of the ICCPR.