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RESPECT FOR PRIVATE AND FAMILY LIFE UNDER ARTICLE 8 ECHR IN IMMIGRATION CASES: A HUMAN RIGHT TO REGULARIZE ILLEGAL STAY?

  • Daniel Thym (a1)
Abstract

Applying the European Convention on Human Rights (ECHR) to immigration cases has always been a balancing exercise between the effective protection of human rights and the Contracting States' autonomy to regulate migration flows. In its recent case law, the European Court of Human Rights in Strasbourg (ECtHR) has considerably extended the protective scope of Article 8 ECHR by granting autonomous human rights protection to the long-term resident status independent of the existence of family bonds under the heading of ‘private life’. This has important repercussions for the status of legal and illegal immigrants across Europe, since the new case law widens the reach of human rights law to the legal conditions for leave to remain, effectively granting several applicants a human right to regularize their illegal stay. The contribution analyses the new case law and develops general criteria guiding the application of the ECHR to national immigration laws and the new EU harmonization measures adopted in recent years.

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1 This standard formula was first used in ECtHR, judgment of 18 February 1991, No 12313/86, Moustaquim v Belgium, para 43.

2 See ECtHR, Moustaquim v Belgium, ibid, and ECtHR, judgment of 20 March 1991, No 15576/89, Cruz-Varas v Sweden, which extended the logic of the Soering case on extradition to expulsion and deportation.

3 ECtHR, judgment of 21 December 2001, No 31465/96, Sen v the Netherlands.

4 See the instructive study by James Hughes, ‘“Exit” in Deeply Divided Societies: Regimes of Discrimination in Estonia and Latvia and the Potential for Russophone Migration’ (2005) 43 Journal of Common Market Studies 739–62.

5 For more details see Nida M. Gelazis, ‘The European Union and the Statelessness Problem in the Baltic States’ (2004) 6 European Journal of Migration and Law 225, 226–32.

6 Cf Hughes (n 4) 749–56 and Gwendolyn Sasse, ‘EU Conditionality and Minority Rights’, EUI Working Papers RSCAS No. 2205/16 (2005) <http://www.iue.it/RSCAS/WP-Texts/05_16.pdf>.

7 Lithuania has a rather homogenous ethno-linguistic society with a russophone minority of less than 10 per cent; see the statistic in the article by Hughes, ibid 744.

8 For more details, see Michael Hoppe, ‘Verwurzelung von Ausländern ohne Aufenthaltstitel’ (2006) 26 Zeitschrift für Ausländerrecht 125–31; Daniel Thym, ‘Menschenrecht auf Legalisierung des Aufenthalts?’ (2006) 33 Europäische Grundrechte-Zeitschrift 541–54 and Reinhard Marx, ‘Aufenthaltserlaubnis nach §25 V AufthG wegen Verwurzelung’ (2006) 26 Zeitschrift für Ausländerrecht 261–8.

9 Cf Pieter van Dijk and GJH van Hoof, Theory and Practice of the European Convention on Human Rights (3rd edn Kluwer, The Hague, 1998) 504–8 and Nicholas Blake and Raza Husain, Immigration, Asylum and Human Rights (OUP, Oxford 2003) 165–73.

10 ECtHR, judgment of 13 June 1979, No 6833/74, Marckx v Belgium, para 45.

11 The wide understanding of family life in migration cases was first applied to the deportation of a deaf and dumb adult delinquent without a family of his own in ECtHR, judgment of 13 July 1995, No 19465/92, Nasri v France, para 34.

12 It did however reject the invocation of Art 8 ECHR by an aunt who had looked after her nieces and nephews before their full age due to the lack of ‘further elements of dependency involving more than the normal emotional ties’ in ECtHR, decision of 3 July 2001, No 47390/99, Javeed v the Netherlands.

13 Cf Ryszard Cholewinski, ‘Strasbourg's “Hidden Agenda”: The Protection of Second-Generation Migrants from Expulsion’ (1994) 12 Netherlands Quarterly of Human Rights 287–306 and Stefan Hobe, ‘Aufenthaltsbeendende Maßnahmen und Menschenrechte’, in Kay Hailbronner and Eckhart Klein (eds), Einwanderungskontrolle und Menschenrechte (CF Müller, Heidelberg, 1999) 197, 200.

14 ECtHR, judgment of 21 October 1997, No 25404/94, El Boujlifa v France, para 36 (emphasis added); similarly judgment of 13 February 2001, No 47160/99, Ezzouhdi v France, para 26 and ECtHR, judgment of 19 February 1998, No 26102/95, Dalia v France, para 45. See also the overview of the early case law by the former judge Pieter van Dijk, ‘Protection of “Integrated” Aliens Against Expulsion under the European Convention on Human Rights’ (1999) 1 European Journal of Migration and Law 293, 298–301.

15 See, in particular, the concurring and separate opinions of judges Martens und de Meyer in ECtHR, judgment of 26 March 1992, No 12083/86, Beldjoudi v France and the concurring and partly dissenting opinions of judges Wildhaber, Morenilla and de Meyer in ECtHR, Nasri (n 11). Similarly in the UK, Sedley LJ in B v SSHD [2000] Imm AR 478 concluded that the network of everyday contacts was protected as private life under Art 8 ECHR.

16 ECtHR, judgment of 9 October 2003 (GC), No 48321/99, Slivenko et al v Latvia.

17 ECtHR, Slivenko (n 16), paras 96–7 (emphasis added); with eleven votes to six the Court holds that the expulsion was disproportionate.

18 This is shown persuasively in the partly concurring and partly dissenting opinion of judge Kovler, ibid, para. 1. On the prior wide understanding of family life in domestic and immigration cases see above nn 10 and 11.

19 See ECtHR, judgment of 15 January 2007 (GC), No 60654/00 Sisojeva et al v Latvia (hereinafter Sisojeva II), para 102 under reference to various of its ‘classical’ judgments on Art 8 ECHR—instead of confirming the categorical differentiation between private and family life by the prior chamber judgment of 16 June 2005 (hereinafter Sisojeva I), para 103, which had stated unequivocally that family life protects the relations between spouses and minor children and that the parents ‘can no longer claim the existence of a “family life” with the third applicant [their daughter], who is an adult’.

20 For the contextual debate on conflicting cultural traditions and human rights protection see Henry J Steiner and Philip Alston, International Human Rights in Context (2nd edn, OUP, Oxford, 2000) 403 et seq and, specifically on Art 8 ECHR, the call for legal respect for ‘the family tradition within the religious, ethnic, and/or cultural community to which the persons in question belong’ by van Dijk and van Hoof (n 9) 508.

21 ECtHR, Slivenko (n 16), para 97; this might apply, for example, to disabled persons depending on continued support from near relatives. However, one may similarly view such cases under the heading of ‘private life’ with special attention to the degree of dependence in the proportionality test.

22 For an overview see van Dijk (n 14) 293–312 and Cholewinski (n 13) 287–306.

23 For more details on the protection of illegal residence status see sections III.B and III.C below.

24 ECtHR, Slivenko (n 16), para 96.

25 See Marie-Benedicte Dembour, ‘Human Rights Law and National Sovereignty in Collusion: The Plight of Quasi-Nationals in Strasbourg’ (2003) 21 Netherlands Quarterly of Human Rights 63, 66 who shows that neither the facts, general legal principles nor the composition of the Court seemed to guide the outcome of individual cases in a ‘judicial lottery’; correspondingly the conclusions of Martina Caroni, Privat- und Familienleben zwischen Menschenrecht und Migration (Duncker & Humblot, Berlin, 1999). More positive the attempt to elaborate general criteria underlying the apparently incoherent case law by the former judge van Dijk (n 14) 301–11.

26 Established case law since ECtHR, judgment of 2 August 2001, No 54273/00, Boultif v Switzerland, para 48. ECtHR, judgment of 18 October 2006 (GC), No 46410/99, Üner v the Netherlands, para 57–8 differentiates the best interests and the wellbeing of the children as well as the solidity of the family ties as two additional sub-criteria.

27 ECtHR, judgment of 10 July 2003, No 53441/99, Benhebba v France, para 33.

28 ECtHR, Sisojeva II (n 19), para 91; the Court later refers, among others, to the applicants' employment situation and education possibilities in para 95.

29 See Art 4(1) of Council Directive 2003/86/EC (OJ 2003 L 251/12) and, following its pattern, Art 2(1)(e) of Council Directive 2003/109/EC (OJ 2004 L 16/44); the United Kingdom, Ireland, and Denmark are not bound by both directives on the basis of their respective opt-outs.

30 See the wide definition of ‘family’ for Unions citizens in Art 10 of Regulation No 1612/68 (OJ 1968 L 257/2) and the new Art 6 of Directive 2004/58/EC (OJ 2004 L 158/77).

31 Thus the political promise of the European Council in Tampere on 15/16 October 2000, Presidency Conclusions, para 21 whose demise in the Council negotiations on the said directives is analysed and criticised by Ryszard Cholewinski, ‘Family Reunification and Conditions Placed on Family Members: Dismantling a Fundamental Human Right’ (2002) 4 European Journal of Migration and Law 271, 279–86.

32 As argued with a view to the different treatment of third country nationals and Union citizens by Steve Peers, ‘Family Reunion and Community Law’ in Neil Walker (ed), Europe's Area of Freedom, Security and Justice (CUP, Cambridge, 2004) 143, 189–95, which rejects the argument of ECtHR, judgment of 28 May 1985, No 9214/80, 9473/81 & 9474/81, Abdulaziz et al v the United Kingdom, paras 85–6.

33 In its first judgment on the substantive EC immigration law, the European Court of Justice (ECJ) has made clear that it is ready to follow the ECtHR case law on Art 8 ECHR as the central source of EU human rights standards, cf. ECJ, judgment of 27 June 2006, Case C–540/03, Parliament v Council [2006] ECR I-5769.

34 See eg Elspeth Guild, The Legal Elements of European Identity (Kluwer, The Hague 2004) 215–34 and Sonja Boelaert-Suominen, ‘Non-EU Nationals and Council Directive 2003/109/EC’ (2005) 42 CML Rev 1011, 1041–51. Of course, the new judgments from Strasbourg apply similarly to all other Contracting Parties, also if they are not bound by the new EC directives or whenever these directives do no regulate the legal status of foreigners.

35 eg European Commission on Human Rights, Decision of 14 July 1977, No 7289/75 & 7349/75, X and Y v Liechtenstein, Decisions and Reports, vol 9 (1978) 57, 74–5.

36 As illustrated by the analysis of James AR Nafziger, ‘The General Admission of Aliens under International Law’ (1983) 77 AJIL 804–47 and, more recently Thomas Aleinikoff and Vincent Chetail (eds), Migration and International Legal Norms (TMC Asser, The Hague, 2003) and Sylvie Saroléa, Droits de l'homme et migrations. De la protection du migrant aux droits de la personne migrante (Bruylant, Brussels, 2006).

37 See ECtHR, Boultif (n 26) and accompanying text.

38 ECtHR, Abdulaziz (n 32).

39 ECtHR, judgment of 21 December 2001, No 31465/96, Sen v the Netherlands; similarly, ECtHR, judgment of 1 December 2005, No. 60665/00, Tuquabo-Tekle et al v the Netherlands.

40 ECtHR, judgment of 17 January 2006, No 51431/99, Ariztimuno Mendizabal v France (only available in French).

41 ibid, para 66 (own translation).

42 ibid, paras 70–1 (own translation).

43 ibid, paras 73–9 under explicit reference to various instruments of EC legislation and the case law of the European Court of Justice.

44 The formerly strict demarcation line between the European Convention and the Community legal order has been blurred in recent years after the continued reference to the ECtHR case law by the ECJ and the seminal decisions of ECtHR, judgment of 18 February 1999, No 24833/94, Matthews v United Kingdom and ECtHR, judgment of 30 June 2005, No 45036/98, Bosphorus Airways v Ireland. The ECtHR judgment in Ariztimuno Mendizabal v France does underline the increasing intimacy of the two European courts, with regular prophecies of conflict now subsiding to the acknowledgment of mutual interests in the maintenance of supranational law and the protection of human rights; cf the intelligent study by Laurent Scheek, ‘The Relationship between the European Courts and Integration through Human Rights’ (2005) 65 Heidelberg Journal of International Law 837, 864 et seq.

45 ECtHR, Sisojeva II (n 19).

46 ECtHR, Sisojeva I, ibid.

47 On ECtHR, Slivenko, see section II.A above.

48 ECtHR, Sisojeva II (n 19), para 91.

49 See section IV.B below.

50 The regularization offer was made after the Court's decision on admissibility in its decision of 28 February 2002 and shortly after the prominent Grand Chamber judgment in Slivenko. In Sisojeva II, the Grand Chamber therefore rightly concludes that the matter has been resolved under Art 34, 37(1)(c) ECHR, since the applicants have seized to be the ‘victim’ of a violation of Art 8 ECHR.

51 Cf the chamber conclusions in ECtHR, judgment of 13 June 2006, No 59643/00, Kaftailova v Latvia (only available in French; not final) and ECtHR, judgment of 15 June 2006, No 58822/00, Shevanova v Latvia (only available in French; not final); the judgments were accepted for referral to the Grand Chamber on 15 November 2006. The Grand Chamber in Sisojeva rightly rejects the respective conclusion of the chamber judgment that the regularisation offers was insufficient.

52 ECtHR, judgment of 31 January 2006, No 50435/99, Rodrigues Da Silva & Hoogkamer v the Netherlands.

53 Art 4(1) of Council Directive 2003/86/EC on the right to family reunification (OJ 2003 L251/12) does in principle only cover children for which the sponsor or his/her present spouse has sole or, exceptionally, shared custody.

54 In a re-alignment of its interpretation of the German constitution, the German Constitutional Court decided shortly before the Strasbourg court to extend human rights protection to factual situations of dependency without custody rights; see Bundesverfassungsgericht, judgment of 5 December 2005, 2 BvR 1001/04, para 18 <http://www.bverfg.de>.

55 See in particular the judgments of the ECtHR, Abdulaziz, Sen and Tuquabo-Tekle (nn 38–9).

56 See ECtHR, Rodrigues Da Silva & Hoogkamer (n 52), para 39 and on the ‘Boultif criteria’, n 26 and accompanying text.

57 ibid, para 39.

58 ibid, para 41.

59 ibid, para 43.

60 ibid, para 9, which immigration practitioners might correctly interpret that Mr Hoogkamer did not have the regular income necessary to sponsor the residence permit.

61 ibid, paras 43 and 44.

62 The Court's second section held its deliberation of ECtHR, Ariztimuno Mendizabal (n 40), with its reference to the ECJ case law in para 68, on 13 December 2005, three weeks before the final deliberation of ECtHR, Rodrigues Da Silva & Hoogkamer (n 52), on 5 January 2006 in largely identical composition. On the role of residence permits under Community law see ECJ, Case 48/75, Royer [1976] ECR 497, para 40: Any expulsion measure ‘would, if it were based solely on that person's failure to comply with the legal formalities concerning the control of aliens or on the lack of a residence permit, be contrary to the provisions of the Treaty’.

63 ECtHR, Moustaquim (n 1), para 43, cited in the introductory paragraph of this article.

64 See however the differentiated analysis by the contributions to Aleinikoff and Chetail (n 36) and Saroléa (n 36).

65 The Council of Europe deliberately decided against the inclusion of a right to asylum in the ECHR, which had been tabled by some delegations during the drafting conference.

66 For a summary of the case law see Clare Ovey, ‘The Margin of Appreciation and Article 8 of the Convention’ (1998) 19 Human Rights Law Journal 10–12.

67 In international law, the will of the Contracting Parties remains of central importance for the interpretation of international agreements, such as the ECHR; see Art 31 Vienna Convention on the Law of Treaties and Ian Brownlie, Principles of Public International Law (6th edn, OUP, Oxford, 2003) 602–8.

68 See eg ECtHR, judgment of 7 July 1989, No 14038/88, Soering v the United Kingdom, para 87: ‘the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective.’

69 See the survey of the Court's case law by Alastair Mowbray, ‘The Creativity of the European Courts of Human Rights’ (2005) 5 Human Rights Law Review 57, 72–9 and for general human rights law, including the Geneva Convention on the Protection of Refugees, James C Hathaway, The Rights of Refugees under International Law (CUP, Cambridge 2005) 48–74; for a powerful critique of the ECtHR see Kay Hailbronner, ‘Art. 3 EMRK—ein neues europäisches Konzept der Schutzgewährung?’ (1999) 52 Die Öffentliche Verwaltung 617–24.

70 On positive obligations Alastair Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Hart Publishing, Oxford, 2004) 171–6 and Paul Mahoney, ‘Marvellous Richness of Diversity or Invidious Cultural Relativism?’ (1998) 19 Human Rights Law Journal 1–6.

71 ECtHR, judgment of 19 February 1996, No 23218/94, Gül v Switzerland, para 38. Similarly among the recent judgments ECtHR, Slivenko (n 16), para 113; ECtHR, Sisojeva I (n 19), paras 109–10, ECtHR, Tuquabo-Tekle (n 39), para 42 and ECtHR, Rodrigues Da Silva & Hoogkamer (n 52), para 39.

72 See the references in n 8 above.

73 ECtHR, decision of 13 October 2005, No. 40932/02, Yildiz v Germany concerning the protection of family life only.

74 See above section IV.A.

75 The former President of the ECtHR Luzius Wildhaber, ‘A Constitutional Future for the European Court of Human Rights’ (2002) 23 Human Rights Law Journal 161, 162; similarly, from a dogmatic perspective, Mahoney (n 70) 3–4.

76 ECtHR, Sisojeva II (n 19), para 90.

77 See Wildhaber, ibid, and Ingrid Siess-Scherz, ‘Die Bedeutung des Subsidiaritätsprinzips für den Reformprozess des EGMR’ in Wolfram Karl (ed): Internationale Gerichtshöfe und nationale Rechtsordnung (NP Engel, Kehl/Strasbourg 2005) 83–110.

78 This position is convincingly argued by Judge Renate Jaeger, ‘Menschenrechtsschutz im Herzen Europas’ (2005) 32 Europäische Grundrechte-Zeitschrift 193, 202–3 and, again, the former President Luzius Wildhaber, ‘Europäischer Grundrechtsschutz aus der Sicht des EGMR’ (2005) 32 Europäische Grundrechte-Zeitschrift 689, 689–90.

79 See the facts of ECtHR, Nasri (n 11) and ECtHR, Gül (n 71).

80 ECtHR, Slivenko (n 16), paras 117 and 122; see also the dissenting opinion of six judges.

81 To counter the criticism of lack of structure and coherence by, for example, Caroni and Dembour (n 25).

82 See sections II.B and III.C above for more details.

83 ECtHR, Bosphorus Airways (n 44), para 156.

84 Cf the deliberations by Wildhaber (n 75) 162–3.

85 See, eg, the different contributions to Bimal Ghosh (ed): Managing Migration (OUP, Oxford, 2000) as well as Aleinikoff and Chetail (n 36).

86 See the emphasis on the individual interest and wellbeing of the citizens concerned in Arts 27–33 of Directive 2004/38/EG (OJ 2004 L229/35) and, lately, ECJ, Joint Cases C–482 and 493/01, Orfanopoulos & Olivieri [2004] ECR I-5257. The development of the ECJ's case law is traced by Guild (n 34) Chs 2–6.

87 See the latest judgments in this direction: ECJ, Case C–467/02, Cetinkaya [2004] ECR I-10895 and ECJ, judgment of 2 June 2005, Case C–136/03, Dörr & Ünal [2005] ECR I-4759.

88 ECtHR, Sisojeva I (n 19), para 108.

89 ECtHR, Rodrigues Da Silva & Hoogkamer (n 52), para 44.

90 ECtHR, Slivenko (n 16), para 121 with the joint dissenting opinion of six judges (n 80).

91 See ECtHR, Boultif (n 26), para 48.

92 See the overview of the main developments in Walker (n 32), Guild (n 34) and Steve Peers, EU Justice and Home Affairs Law (2nd edn, OUP, Oxford, 2006).

93 See n 29 above.

94 Cf the famous ‘Belmarsh’ case A et al & X et al v Secretary of State for the Home Department [2004] UKHL 56 and the dispute on the reform of immigration appeals analysed by Richard Rawlings, ‘Review, Revenge and Retreat’ (2005) 68 MLR 370–410.

95 ECtHR, Bosphorus Airways (n 44).

96 See the various references to the ECJ case law by Scheek (n 44) 849–57.

97 ECJ, judgment of 16 June 2005, Case C–105/03, Pupino [2005] ECR I-5285, para 60 (emphases added).

98 See ECJ, Case C–540/03 (n 33) with the opinion of Advocate General Juliane Kokott of 8 September 2005, paras 59–78.

99 See above II.B.

100 The eight ‘Boultif criteria’ referred to in II.B may thus guide the interpretation of the public order provisions Art 17 Directive 2003/86/EC and Art 12 Directive 2003/109/EC.

101 The margin of appreciation described in IV.A above originates in the specificities of vertical human rights adjudication where international courts rule outside an existing legal framework; in cases of horizontal adjudication of national courts (and the ECJ) with a view the specific national or European legislative instruments, the courts may enter into a more substantive analysis; cf. for the European context Jürgen Kühling, ‘Fundamental Rights’ in Armin von Bogdandy and Jürgen Bast (eds), Principles of European Constitutional Law (Hart Publishing, Oxford 2006) 501, 524–30 and for the British situation Lord Hoffmann per House of Lords, A et al & X et al v Secretary of State for the Home Department [2004] UKHL 56, para 92.

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