The minimum age for family establishment is not in conflict with the ECHR. Both parties must be at least 24 years old to apply for a permit to form a family.
The purpose behind the requirement is to counteract and prevent forced marriages.
The question before the Supreme Court was whether the minimum age requirement and the way it is practised, violates the applicant’s right to family life under article 8 in the European Convention on Human Rights (ECHR) and/or the Prohibition of Discrimination in article 14. The conclusion is that UNEs decision does not violate the provisions of Article 8 and Article 14 of the ECHR
You can read the entire judgment on hoyesterett.no (in Norwegian only).
The decision does not violate article 8 of the ECHR
In the appeal it was claimed that the refusal of a residence permit for family establishment was a violation of the right to family life in Article 8. The appeal referred to, among other topics, the uncertainties regarding whether the age requirement can prevent forced marriages or not. It was claimed that it is an intervention in the right to family life that goes too far without proof of being efficient.
In the ruling, the Supreme Court argues that the purpose of the age limit, which is to prevent forced marriages, is a legitimate purpose that is set to protect the rights and liberties of individuals.
The Supreme Court points out that the Ministry of Justice and Public Security has decided that the measure should still be in place, despite there being different opinions on the effect during consultations in the Ministry. In addition, the courts must be careful of judicial review of the legislator’s decided protection level.
(90) Objections that have been raised have been assessed and weighed by the legislator. The fact that the age requirement could unintentionally affect marriages that have been entered into voluntarily has also been considered, but the legislator has decided that the purposes the age requirement is intended to serve are so important that the rule with the exception access the law provides is not disproportionate. (our translation)
The Supreme Court concludes that UNE’s decision to turn down the application for family establishment on the basis of marriage, was based on a reasonable balance between the individual's and society's interests, and therefore did not violate Article 8 of the ECHR.
Even though the applicant had children with the reference person at the date of the decision, she had a short residence period in Norway. Additionally, there was no information regarding the fact that maintaining a family life was impossible in the applicant’s home country. Furthermore, the rejection would only be a temporary postponement as the applicant can apply for residency when the age requirement is met.
The decision is not contrary to the Prohibition of Discrimination in article 14 of the ECHR
The main question, to assess whether it is contrary to Article 14, is if the rejection implicates discrimination. The Supreme Court found that there are no grounds for concluding that the decision is contrary to the prohibition against discrimination in Article 14 of the ECHR. In paragraph 113 of the judgment, it is stated that the rejection is not based solely on the applicant’s nationality or ethnicity, but on multiple individual circumstances that combined indicates that it is not obvious that the marriage is voluntary.
The Supreme Court state that the admission to exempt from the requirement is narrow, and the standard of proof is strict. It must be obvious that the marriage is voluntary.
(103) ... When processing an application for family establishment where at least one of the parties is under the age of 24, it is therefore not sufficient to base a refusal on the applicant's country of origin or cultural background alone, combined with the occurrence of forced marriage in the country in question. The law requires that an individual overall assessment of the case must be made, and the main topic is whether the marriage is obviously voluntary. (our translation)
Here you can read more about this case and the ruling from the Court of Appeal (in Norwegian only)