Denmark’s “Ghetto Package” and the intersection of the right to housing and non-discrimination

Susheela Math

Legal Officer, Open Society Justice Initiative

Thousands of people across Denmark face eviction from their homes under the country’s “Ghetto Package,” which seeks to “eradicate” “ghettos” by 2030.  The State distinguishes “ghettos” from other areas with the same socio-economic factors on the basis that the majority of residents are of what it calls “non-Western background.” 

A group of affected residents in Copenhagen is engaged in legal proceedings against the Danish Ministry of Interior and Housing.  The case is an action for declaratory relief in Denmark’s Eastern High Court, challenging the Ministry’s approval of a “Ghetto Package” development plan.  The residents’ pleadings marry discrimination claims with arguments based on the right to respect for home and other fundamental rights, reflecting the intersections prevalent in the “Ghetto Package.”

What is the “Ghetto Package”?

The “Ghetto Package” was announced by the Danish Government in March 2018 as a bundle of over 20 different legislative proposals affecting spheres as diverse as housing, education and criminal justice.  The laws include a requirement for the passing of development plans to reduce “common family housing” in “tough ghettos” to a maximum of 40% by 2030.  “Common family housing” is a form of non-profit housing run by housing associations that are intended to be self-governing and independent.  Residents pay rent to the housing associations, which in turn pay annual contributions to the National Building Foundation. The funds are used for matters such as the construction, renovation or demolition of buildings, as well as social projects such as activities for children and crime prevention programmes. “Tough ghettos” are areas which have met the State’s criteria of “ghetto” for four or more years.[1]

The “Ghetto Package,” which represents a culmination of years of political rhetoric and a steady progression of laws and policies targeting immigrants, refugees and minorities (particularly Muslims), has far-reaching, grave consequences.[2]  The UN Committee on Social, Economic and Cultural Rights (“CESCR”) and the Advisory Committee on the Framework Convention for the Protection of National Minorities (“ACFC”) have already raised serious discrimination concerns in relation to the use of “non-Western background” and called for remedial action.[3]  This state-made, artificial categorisation can cover generations of individuals, including “descendants” born in Denmark.  Australia and New Zealand are included in the concept of “Western,” demonstrating that the definition formulated by Denmark is not based on geography.[4]  In addition, the laws run counter to the purported justifications for the “Ghetto Package,” including the preservation of Danish values as well as better social integration and socio-economic conditions. 

With regard to integration, as noted by the ACFC, Denmark’s inclusion of ‘descendants’ “sends a message that may have a counter-effect on their feeling of belonging and forming an integral part of Danish society.”[5] This is supported by CESCR’s unambiguous conclusion that the categorisation of “ghettos” results not only in discrimination based on ethnic origin and nationality but also in further marginalization.[6]

Moreover, development plans can include the sale or demolition of common family housing, leading to the threat of evictions for so many.  This comes at a time when Denmark’s lack of affordable housing and rising rents exacerbated by private investment have been noted by CESCR, which has recommended that Denmark increase its stock of affordable housing.[7] Ironically, the “common family housing” which the Package seeks to reduce is a particularly Danish form of housing based on values of democracy, egalitarianism, and affordable housing for all.

The coronavirus pandemic has further highlighted the need for housing security. As noted by the former UN Special Rapporteur on Adequate Housing, it “has laid bare the pre-existing and vast structural inequalities in housing systems all over the world, characterized globally by rising housing unaffordability and the lack of available public housing stock. Actions taken now can help to address these deficiencies, while also serving to protect the right to housing of residents during the pandemic.”[8] Instead of scrapping the “Ghetto Package,” however, the current government has reaffirmed its commitment to it throughout the pandemic.

What are the residents seeking?

The residents seek a declaration that the Ministry’s approval of the development plan for their area is discriminatory and violates their fundamental rights.  The plan authorises the sale of two buildings, comprising over 200 family homes.  In October 2020, three UN Special Rapporteurs joined forces on an emergency application to Denmark, asking for the sale to be halted pending the litigation.[9]

Non-discrimination

Discrimination based on any type of “status” is prohibited by the European Convention on Human Rights (“ECHR”) where a standalone right, such as the right to respect for home, is engaged.  This includes on grounds of racial or ethnic origin, which are also unlawful under the EU’s Race Equality Directive (“RED”).  In interpreting the RED, courts must respect the rights, uphold the principles and promote the application of the Charter of the Fundamental Rights of the European Union (“Charter”).  The Charter includes the right to respect for private and family life and home and the right to social and housing assistance.[10]  The Court of Justice of the European Union (“CJEU”) has made it clear that the right to accommodation is a fundamental right guaranteed under Article 7 of the Charter.[11]  The case includes the following arguments under these frameworks.

Direct discrimination: the residents are being treated less favourably than those in comparable areas, on the basis of racial or ethnic origin as encompassed within the term “non-Western”

• The residents are stigmatised and under threat of eviction.
• The countries included within the definition of “Western” all have majority white populations.
• People classed as being of “non-Western background” are a racialised group, with legislative policy papers and statements referring to ethnic origin and those with “norms” or religious values that are different from those of the majority population.

Indirect discrimination: the approved plan puts racial/ethnic minorities at a particular disadvantage and is not objectively justified by a legitimate aim.

• The removal of residents with “non-Western background” is not a legitimate aim.
• The approved plan is not appropriate or necessary.
• The residents’ legitimate interests, including their housing rights under the Charter, are unduly prejudiced.

Instruction to discriminate: the approval of the development plan constitutes an instruction to the housing association to discriminate.

• The housing association must comply with the plan or risk enforcement action being taken against it by the Ministry.

Article 14 of the ECHR: the residents have demonstrated a difference of treatment (based inter alia on their status as residents of a “tough ghetto”) that does not pursue a legitimate aim and is not proportionate. 

Other fundamental rights

Both the CJEU and the European Court of Human Rights have held that the loss of one’s home is an extreme form of interference with fundamental rights.[12]  It has also been recognised that the loss of a family home places the family concerned in a particularly vulnerable position.[13]  The case includes the following arguments regarding the residents’ fundamental rights.

Right to respect for private, family life and home: The approval of the development plan constitutes an unjustified interference the residents’ rights to respect for home as well as private and family life. 

• As well as their homes, the residents risk losing the network and community that they have built up through their long-standing residence.
• Individual circumstances must be taken into account in assessing whether the very weighty reasons required to justify an interference exist. 
• The approved plan does not pursue a legitimate aim and is not necessary or proportionate.  

The right to choose one’s residence: The State has not shown why the plan to evict the residents from where they have chosen to live is necessary in the public interest.

The right to protection of property: The approval of the development plan unduly interferes with the residents’ rights to peacefully enjoy their property under their permanent leases.

• There has been no reasonable opportunity to challenge the measures under the plan.
• There is not sufficiently weighty general interest in the interference.

Next steps

The High Court is considering procedural requests from the parties, including a request from the residents for a preliminary reference to the CJEU.  A ruling from that Court could be relevant not just in Denmark but across Europe where cases of ‘area-based discrimination’ including in the realm of housing are growing.[14]  Meanwhile, the Danish Parliament has been presented with a citizens’ petition of more than 50,000 signatures, with the effect that it must debate a proposal to repeal the relevant housing law provisions and abolish the annual publication of “ghetto” lists.  The debate is scheduled for 6 April, representing an opportunity for the Danish government to rethink and repeal the “Ghetto Package.”

The residents are represented by Eddie Omar Rosenberg Khawaja from Jacobsen & Khawaja, working together with Open Society Justice Initiative.  See our casepage for more details.[15]