Refusal of permanent resident permit

Case no. BS-20635/2020-HJR
Judgment delivered on 11 May 2021

A
vs.
The Immigration Appeals Board

By a decision of 14 August 2007, the Danish Immigration Appeals Board refused A’s application for a permanent residence permit in Denmark on the grounds that she did not fulfil the employment requirement in the Danish Aliens Act then in force.

The parties agreed that A did not fulfil the employment agreement at the time of the Immigration Appeals Board’s decision. It had not been contested that A was disabled within the meaning of the UN Disability Convention, and the issue before the Supreme Court was, thus, whether the Immigration Appeals Board’s decision was in contravention of the prohibition of discrimination in Article 5 of the Disability Convention or Article 14, cf. Article 8, of the European Convention on Human Rights.

The Supreme Court stated that it had not been demonstrated by the medical statements produced that A had no reasonable prospect of fulfilling the employment requirement due to her disability at the time of the Immigration Appeals Board’s decision. The Supreme Court noted that the medical statements did not consider her ability to take on reduced employment in a flexi-job, which ranks alongside ordinary employment according to the travaux préparatoires for the Act. Her capacity for work had not been determined in a municipal resource-building programme. In the period from 2012-2015, she had completed a hairstylist course, and since 2014, she had been enrolled as a student at the University of Copenhagen.

The time constraints A claimed to prevent her from undergoing a municipal resource-building programme before she could start a possible flexi-job could not form basis for the Immigration Appeals Board disregarding the fact that she did not fulfil the employment requirement due to her disability when it made its decision on 14 August 2017. If the Board had disregarded the employment requirement, A would have been put in a more advantageous position than a non-disabled person in a comparable situation.

Accordingly, the Immigration Appeals Board’s refusal of A’s application for a permanent residence permit was not in contravention of the prohibition of discrimination in Article 5 of the UN Disability Convention or Article 14, cf. Article 8, of the European Convention on Human Rights.

The High Court had reached the same conclusion.