Self-Restrained Adjudicator Meets (not so) Self-Restrained Lawmaker: Danish Human Rights Protection Tested on the ‘Forced Marriage Presupposition Rule’

Abstract

ABSTRACT The article examines the functioning and fragilities of the Danish system of assuring human rights compliance of legislation. The aim is to examine previous theoretical allegations about inadequacies of this system. In the context of the adoption and subsequent judicial review of the ‘forced marriage presupposition rule’ in family reunifications, the article marks the concrete steps at which the legislature and the judiciary adhered to a tendentious and evasive interpretation of human rights and was unwilling to consider or rebut the impact of new evidence or individual circumstances. Analysing four courts’ cases reviewing the presupposition rule, the article shows how the primacy of the legislature in assessing human rights combined with the judicial self-restraint apparently places the claimant in an argumentative inequality in the judicial proceedings. This and other findings mark the micro-level symptoms evidencing a compromised character of human rights protection in Danish migration law observable in the context of this case study.