Legal interest

Case no. BS-14184/2020-HJR
Judgment delivered on 15 April 2021

A
vs.
The Immigration Appeals Board

In a case of refusal of family reunification, A made two parallel claims before the High Court. First, A claimed that the Immigration Appeals Board’s decision of 6 December 2017 should be annulled and the case be remitted for reconsideration by the Danish Immigration Service (claim 1), and second, that the Immigration Appeals Board’s decision of 21 September 2016 should be annulled and the case be remitted for reconsideration by the Danish Immigration Service (claim 2).

The High Court was satisfied that A and B entered freely into marriage. The conditions under section 9(8), second sentence, of the Danish Aliens Act then in force for rejecting an application for a residence permit were thus not satisfied, and the High Court upheld claim 2 on annulment of the Immigration Appeals Board’s decision of 21 September 2016 rejecting the application for family reunification and remitted the case for reconsideration by the Danish Immigration Service. The High Court dismissed claim 1. On 29 June 2020, the Danish Immigration Service then granted family reunification and issued a residence permit in Denmark to A based on her marriage to B.

A’s claims before the Supreme Court concerned – like claim 1 that was rejected by the High Court – the Immigration Appeals Board’s decision of 6 December 2017. In its decision, the Board refused to reopen the case in which A had been denied her application for a residence permit. The allegations thus concerned the issue of reconsideration of a decision that was no longer relevant, as the Danish Immigration Service had issued a residence permit to A after the High Court’s judgment. Reviewing the previous refusal was therefore also no longer relevant.

With its claims before the Supreme Court, A – like claim 1 before the High Court – challenged the allegation that section 9(8), second sentence, of the Danish Aliens Act then in force was contrary to Article 13 of Decision no. 1/80 of the Association Council of 19 September 1980.

As mentioned above, the High Court upheld A’s claim that the conditions of section 9(8), second sentence, of the Danish Aliens Act for rejecting her application for a residence permit were not satisfied, and the Danish Immigration Service subsequently granted her a residence permit. The allegation concerning Article 13 of the Association Council’s Decision of 1980 would, if it were upheld, only constitute a further reason why the immigration authorities’ initial refusal to grant a residence permit should be set aside, but it would not lead to a different legal position for A than the one resulting from the High Court’s decision.

Against this background and since A’s additional arguments could not lead to a different result, the Supreme Court held that there was no basis for concluding that she had the necessary legal interest to challenge whether that provision in the Aliens Act, which according to its own wording did not apply to her, was contrary to Article 13 of the Association Council’s Decision of 1980.

On these grounds, the case before the Supreme Court was dismissed.