In a panic-driven response to the large number of Syrian refugees arriving in Denmark during 2015, the Danish government launched a new, weak and supposedly temporary type of humanitarian status. The 4 000 refugees who were then granted this status were required to wait three years before applying for family reunification for the spouses and children they had been forced to leave behind when they started their dangerous journey to Europe.

Now, five years later, the European Court of Human Rights (ECHR) in Strasbourg has ruled this law illegal for violating Article 8 of the European Convention on Human Rights, in a principal ruling from the Grand Chamber (M.A. v. Denmark). But the damage has already been done: thousands of refugees have been separated from their families for years. This has led to some returning home to be reunited, in spite of the risk; others' family members have risked their own lives to follow the same dangerous journey as their spouse or parent rather than waiting any longer to be reunited.

A number of other countries in Europe followed Denmark’s lead at the time of the three-year rule, introducing their own similar waiting periods. These countries will now also be required to adjust their legislation in light of the ruling from the ECHR. In fact, even the EU Directive on Family Reunification accepts a waiting period of up to three years, but the court in Strasbourg has said this is too long – especially because time for the flight, asylum case processing and family reunification process will all serve to further lengthen the waiting period.

This new court ruling importantly underlines the fact that all refugees have a right to family reunification, whether they are granted protection status, humanitarian status or convention status. Several EU-countries issue different rights to these groups.

In short, the ruling against Denmark accepts the state’s right to protect itself from a 'mass influx' of foreigners. But there must be a balance between the interests of the state and the refugee’s right to a family life. The court found that Syrian refugee M.A. indeed had established a strong family life with his wife after 25 years of marriage and two children, and that it would be impossible to maintain it in their home country, Syria. According to the judges, the Danish state should have assessed the cases individually, carried out an ongoing assessment of the situation in Syria, and reconsidered the legislation when the number of new asylum seekers in Denmark dropped significantly (shortly after the new law was passed).

The reaction from Danish politicians has been predictable: the left-wing and social liberals demand that the law be immediately changed; the right-wing and nationalists say that no law should be above Danish law. The Minister for Immigration and Integration, Mattias Tesfaye, says he will wait and see what the government’s juridical experts have to say about the ruling.

Only two years ago, Denmark lost another case on family reunification at the ECHR - one which had been ongoing for 10 years. In that instance, the court found the rules for attachment to be discriminatory in favour of ethnic Danes, and the law was accordingly changed.