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All You Need Is Time? Discrepancies between the European Court of Human Rights Case Law and Liberal Normative Theory on Long-Term Migrants

Published online by Cambridge University Press:  16 October 2017

Başak Çalı*
Affiliation:
Hertie School of Governance, Berlin; and Koç University, Center for Global Public Law, Istanbul. cali@hertie-school.org.

Abstract

This article, departing from Gila Stopler's ‘Rights in Immigration: The Veil as a Test Case’, published in the Israeli Law Review in 2010, reviews how the time spent by a long-term migrant, irrespective of legal status, normatively figures in liberal theories of migration and in the case law of the European Court of Human Rights (ECtHR). The article detects that in contemporary liberal theories, assigning an independent normative value to time spent by the migrant in the receiving country is a key move in balancing the competing interests of migrants and of the migrant-receiving country, where the right of the country to regulate migration is taken as given: the longer a migrant is present in a country, the stronger her interests become in receiving citizenship status or treatment akin to citizens. The article then surveys the case law of the ECtHR relating to long-term migrants. It finds that time is often one of multiple normative considerations in the balancing exercise, in conjunction with whether a migrant has achieved social integration in the migrant-receiving country and whether the right of the receiving community to regulate migration for reasons of affording citizenship, national security or distributive justice is paramount. The article argues that the lack of an independent normative weight afforded to time in the case law of the ECtHR is not merely a tension between the translation of liberal normative theory to legal policy. It also shows a deeper tension in liberal theories of migration between national liberalism and cosmopolitan liberalism.

Type
Celebrating 50 Years of Scholarship: Reflections on Key Articles from the First Five Decades
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2017 

1. Introduction

Gila Stopler's ‘Rights in Immigration: The Veil as a Test Case’ was published in the Israel Law Review in 2010. In this article Stopler put forward a framework to assess normatively the place of rights in immigration within the context of liberal theories of justice.Footnote 1 Stopler held that such rights must be thought of in terms of stages rather than their totality and proposed three normatively relevant stages of immigration for liberal democratic states: entry into a country (Stage I); request for citizenship (Stage II); and residence in the country of immigration (Stage III).Footnote 2 Stopler argued that rights in immigration, in an established legal and cultural community committed to universal respect for basic rights, must be assessed based on the stage of immigration in which a migrant finds herself. While liberal democracies had a right to regulate immigration, the longer a migrant is in a country, the more weighty her interests become in requiring equal treatment – that is, citizen-like treatment or actual citizenship. In this article, Stopler also reviewed cases from the European Court of Human Rights (ECtHR or the Court). She showed that there existed discrepancies between how the Court handled cases involving rights in migration and liberal normative theory. She highlighted that, under the margin of appreciation doctrine, the deference that the Court accords to the rights of migrant-receiving states in addressing the cultural and religious rights of long-term migrants was not normatively justifiable from the perspective of liberal theory.Footnote 3

Seven years on, the article and the two-pronged issue on which it focused – immigration and veils in Europe – remain highly relevant. Politically, migration control is firmly on the European agenda. People fleeing persecution and conflict, as well as those searching for better life prospects for themselves and their families, continue to try to reach Europe, often at great risk to their lives.Footnote 4 The questions of who should remain in liberal democracies, be they migrants or refugees, and on what terms, unceasingly spark debate.Footnote 5 There is much talk and action about preventing migrants from arriving in Europe,Footnote 6 the migrant's duty to integrate,Footnote 7 and the state's right to expel or even strip citizenshipFootnote 8 from those who disturb the public order. Conditional stayFootnote 9 and expulsion of migrants,Footnote 10 as well as restrictions on migrants’ cultural and religious rightsFootnote 11 have seen continuing litigation, in particular, before the ECtHR.

My aim in this article is to depart from Stopler's account of how rights in immigration ought to be determined within the normative framework of liberal theories of justice, which places significance on the length of time migrants spend in a receiving country. I aim to assess the convergence between the liberal normative account put forward by Stopler and the jurisprudence of the Court with respect to the right-to-remain cases of long-term migrants in Europe. In so doing, I focus on cases brought by migrants who have lived in Europe for five years or more, demanding that they should be treated equally with any other member of the political community based on the length of their stay in the respective country.Footnote 12

The argument in this article is twofold. First, I argue that there are important discrepancies between Stopler's liberal normative framework, which places special emphasis on the normative significance of the length of stay, and the case law of the Court. In her account Stopler supports the principle of jus temporis for identifying rights in migration: the longer a migrant resides in a country, the stronger his or her interest becomes to be treated equally with citizens. In the case law of the ECtHR, however, length of stay is not a particularly weighty consideration, but is one consideration of many in adjudicating the rights of long-term migrants. Secondly, I argue that this discrepancy is not simply because of the wide margin of appreciation the Court accords to states in the area of migration; thus it is not merely a feature or failure of legal policy. Instead, I propose that the liberal normative theory is ambiguous in offering normative guidance as to how significant a consideration time should be, in particular with regard to other countervailing considerations such as the migrant's legal status or the risks to national security. While some theorists, like Stopler, advocate for normative significance to be given to length of time regardless of the legal status of the migrant, they do not address how time should interact with other considerations in the balancing exercise.

In what follows, I first offer a brief account of Stopler's three stages of immigration and her sliding-scale approach to rights in migration, focusing on a migrant's length of stay as leading to a corresponding increase in their rights. In Section 3 I turn to the jurisprudence of the ECtHR with respect to long-term migrants and their requests for equal treatment with citizens based on time spent in the country. In Section 4 I identify and discuss the discrepancy between Stopler's normative account of the rights of long-term migrants and that of the ECtHR. I conclude by identifying what is needed for the case law of the Court to be normatively justifiable in the field of long-term migration. Moreover, I show how Stopler's normative account would benefit from an examination of whether we may still conceive of cases involving long-term migrants as a balancing exercise between their interests and those of the receiving community.

2. Stopler's Three Stages of Immigration

Stopler's normative assessment of rights in immigration departs from two central liberal premises that take the existence of national borders as given. First, Stopler holds that rights in immigration are not absolute rights; instead, they are qualified rights the content of which can be clarified by weighing the interests of migrants and the interests of the receiving communities and states.Footnote 13 Second, Stopler holds that a migrant's position in the stages of immigration – ranging from the request for entry (Stage I), the request for citizenship (Stage II) and the migrant's residence in the country of immigration (Stage III) – has a normative impact on how the balancing exercise between the rights of migrants and those of the receiving communities must be carried out. Significantly, the longer a migrant stays in a receiving community, the weaker the interests of the community become to protect its culture against that of the migrant.Footnote 14 Time spent in the recipient country, jus temporis, thus is a significant tool in determining what the migrant-receiving state owes to migrants already present in its territory.

Stopler's normative sliding-scale approach takes it as a given that there is no cosmopolitan right to migrate (leaving aside refugee law) or a right to naturalisation.Footnote 15 She therefore distances herself from the more radical criticisms of the very ideas of national borders, national membership and national identity when she states that ‘immigration is not recognized as a universal right under either law or in political theory’.Footnote 16 Instead, the sliding-scale approach offers a compromise between a citizenship-focused liberal theory and a cosmopolitan one: the longer a migrant remains in the receiving country, the weightier and more substantive his or her interests become vis-à-vis the receiving country. An important consequence of this argument is that the long-term stay ought to lead to the migrant's naturalisation and equal treatment with citizens of the recipient state.

As Stopler underlines, the ‘long term’ migrant's right to remain and naturalise is one that has received wide endorsement from liberal political theorists, irrespective of their commitment to the moral significance of national borders. Walzer sees this as a requirement of democratic theory. A state should extend membership to all those who are part of the life of the society and failing that it would become ‘a family with live-in servants’.Footnote 17 This view makes a particularly strong case for the protection of long-term temporary guest workers and their families who are not accorded long-term resident status or citizenship. Stopler's approach, however, is closer to that of Carens. For Carens, too, the length of time spent in a country itself is normatively significant for migrants to acquire equal rights from a liberal perspective that is truly committed to the equal moral worth of persons, irrespective of their citizenship status. As Carens puts it ‘[t]he longer people stay in a society, the stronger their moral claims become. After a while they pass a threshold that entitles them to the same legal status as citizens’.Footnote 18 As such, length of time must carry normative significance to generate rights for all types of migrant, including those with an irregular or precarious legal status.Footnote 19 Even if migrants are not naturalised as citizens, the longer their presence in the migrant-receiving community, the stronger their claims are to be treated akin to citizens. Once migrants become citizens their right to equal recognition of their minority culture in the public domain becomes even stronger and the state's interest in protecting the majority culture directly or indirectly becomes weaker.

Liberal theories of migration, however, do not speak in one voice about the normative significance of jus temporis. For some, jus temporis simply offers incentives for non-legal residents to engage in illegal behaviour by overstaying, which the states have a right to suppress under the discretion they enjoy for border control.Footnote 20 For others, the central question is the comparative moral relevance of time spent in the receiving community when pitted against other relevant considerations: namely, the collective interest of the political community to withhold long-term legal status or naturalisation and to deport the long-term migrant. Even Carens, who ultimately advocates open borders, recognises that a state may withhold naturalisation from migrants ‘if there is good reason to believe that they will grow up in the state where they were born’.Footnote 21 Thus, while liberal political theory directs decision makers to focus on time, it does not give a clear account of how time should figure in complex balancing exercises, creating the risk that it becomes an arbitrary factor in immigration decisions.

3. Long-Term Migrants and the Case Law of the European Court of Human Rights

Does the European Court of Human Rights develop the nexus between democratic legitimacy and the recognition of the rights of long-term migrants to be naturalised and remain in the country? Does it treat the length of time as a significant stand-alone test for according citizen-like rights to migrants? In what follows I offer a survey of the case law of the Court on long-term migrants.

3.1. No Absolute Right to Citizenship or Residency, and No Absolute Right not to be Expelled

The case law of the European Court of Human Rights is on a par with the liberal theories of immigration in that it treats rights in immigration as qualified rights in all circumstances. Migrants do not have an absolute right to citizenshipFootnote 22 or residency;Footnote 23 nor do they have an absolute right not to be expelled from the countryFootnote 24 or a right not to be stripped of their citizenship.Footnote 25

The Court's general approach to citizenship is that there is no such right under the European Convention on Human Rights (ECHR or the Convention)Footnote 26 and that a right to citizenship cannot be directly derived from any of the rights protected in the Convention.Footnote 27 Long-term stay in a country cannot, in and of itself, lead to a right to citizenship. Instead, the Court holds that only when arbitrary denial of citizenship has a serious impact on the private rights of the individual, then it may come within the scope of the Convention.Footnote 28 Arbitrariness in the case law of the Court includes discriminatory application of citizenship laws to individuals.Footnote 29 By the same token, the Court also recognises that migrants can be stripped of their citizenship on the ground of non-compliance with the conditions imposed for acquiring citizenship, for example, by committing fraud or being involved in activities that threaten the public interests of the community as a whole. In both of these instances, the applicant's long-term stay in the country does not on its own compel the state to treat the migrant's citizenship as native citizenship. This has been the case even when the migrant stripped of citizenship faces the risk of statelessness.Footnote 30

Assigning unfettered discretion to states also shapes the Court's approach to rights of residency. In a much-quoted leading judgment – which involved the expulsion from the Netherlands of a Turkish adult who had migrated there when he was 12 years old to join his guest-worker father and was deported after 17 years of stay – the Court set out these general principles with regard to the rights of the receiving state:Footnote 31

The Court reaffirms at the outset that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there. The Convention does not guarantee the right of an alien to enter or to reside in a particular country.

Unlike the liberal theories of immigration, which show concern for long-term migrants, the ECtHR does not differentiate a priori between short- and long-term migrants in discussing rights of residency. For the Court, granting residency is a domain of sovereign states in its totality. In Üner, the Court underlined this principle when it stated: ‘These principles apply regardless of whether an alien entered the host country as an adult or at a very young age, or was perhaps even born there’.Footnote 32

Furthermore, the Court also finds that there are a priori categorical differences between citizens and migrants, despite the birth or the long-term stay of the latter in the receiving country, when it comes to decisions relating to expulsion. In Üner, the Court insisted on this a priori categorical difference in strong terms:Footnote 33

The Court considers nevertheless that, even if a non-national holds a very strong residence status and has attained a high degree of integration, his or her position cannot be equated with that of a national when it comes to the above-mentioned power of the Contracting States to expel aliens.

The Court does, however, differentiate between ‘settled migrants’ (defining ‘settled’ as those migrants with a formal legal status in a country) and migrants whose legal status is pending.Footnote 34 According to the Court, settled migrants enjoy the right to family life in the receiving country and any interference with their right to family life must be necessary and proportionate in a democratic society.Footnote 35 The term ‘settled migrants’, however, is not consistently used as a synonym for long-term migrants. The Court does not always adopt a clear position on whether the length of stay in the country can trigger rights despite the lack of legal status for the migrant.Footnote 36 In cases where a migrant is long-term but not settled legally, the Court is less likely to find a breach of the migrant's right to private and family life because the competing interests, in these instances, tend to carry greater weight.Footnote 37

This principled stance of the ECtHR in differentiating between long-term migrants and citizens, as well as between settled long-term migrants and unsettled long-term migrants, goes against the approach of categorising migrants based merely on the time they have spent in the receiving country. Unlike the sliding-scale approach, the Court's starting point is the primacy of a state's right to govern its immigration policy by assigning different types of legal status to migrants. There is thus no general theory of human rights and how the human rights of the individual may be best protected in a liberal democratic society to inform the migrant-related case law of the ECtHR.

3.2. Length of Stay: Not a Stand-alone Mark of Rights in Immigration

If a long-term migrant's length of stay does not receive normative significance as a matter of principle, how does it figure in the balancing exercises that the ECtHR undertakes when it considers that a state's migration policy interferes with one of the protected rights in the Convention?

At the centre of the Court's approach to rights in migration is the right to private and family life, which for the Court is a multifaceted right. It covers the family ties and other relationships of migrants in the receiving country,Footnote 38 as well as their level of social integration in the society.Footnote 39 Despite this broad definition of the right to private and family life, under the ECHR migrants do not have a prima facie right to continue to enjoy these rights in the receiving state.Footnote 40 This flows from the Court's acceptance that migrants do not automatically qualify for citizenship status or citizen-like treatment based on their length of stay or relationships in the receiving country. Immigration policy, such as refusal of legal residency or expulsion from the country, can be carried out as long as these decisions do not come at a high cost to the private and family life of the migrant and they are a proportionate response to the aims pursued by such policies.

In the case law of the European Court of Human Rights, states assert their margin of appreciation in the field of immigration policy with respect to long-term migrants when they hold that the prevention of crime and disorder, national security or public order are at stake.Footnote 41 The prevention of crime and disorder cases concern the ‘misbehaving’ long-term migrants in receiving communities. In these cases, states often seek to deport long-term migrants, even though they may have spent a significant part of their lives in the migrant-receiving states with no access to naturalisation because of the criminal offences they have committed.

In such a case, the Court asks the state to demonstrate whether it has struck a fair balance between the interests of the receiving community and the interests of the long-term migrant to enjoy a private and family life in that state. In what is known as the ‘Boultif criteria’, the Court asks states to consider a range of concerns in striking a fair balance. These can be summarised broadly around: (i) the length of stay; (ii) the seriousness of the migrant's criminal convictions, conduct since conviction and the risks of reoffending; and (iii) the impact of removal on family relationships, especially on children.Footnote 42

These criteria overlap and intersect with one another and are therefore highly fluid. While length of stay may be significant, a migrant who commits serious offences and has no social ties – and hence is not well-integrated into the society – may still be deported.Footnote 43 If criminal convictions are not deemed too serious (in terms of number of offences and post-conviction behaviour), and the migrant has remained in the country for a long time and has children, fair balance may require a legalised right to remain in the country despite the criminal convictions.Footnote 44 If the conviction is serious, and even if the long-term migrant is mentally ill and has no meaningful social ties in his or her native country, the Court may view the deportation as part of a fair balance.Footnote 45

It was in Üner that the Court aimed to develop a more principled approach to the length of stay as a normatively significant criterion for the deportation of migrants, although even in this case, the Court maintained that this was merely one consideration out of many in decisions concerning the treatment of long-term migrants. In this case the Court held that:Footnote 46

[A]lthough the applicant in Boultif was already an adult when he entered Switzerland, the Court has held the ‘Boultif criteria’ to apply all the more so (à plus forte raison) to cases concerning applicants who were born in the host country or who moved there at an early age (see Mokrani v. France, no. 52206/99, § 31, 15 July 2003). Indeed, the rationale behind making the duration of a person's stay in the host country one of the elements to be taken into account lies in the assumption that the longer a person has been residing in a particular country, the stronger his or her ties with that country and the weaker the ties with the country of his or her nationality will be. Seen against that background, it is self-evident that the Court will have regard to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there.

In the case of Jeunesse v The Netherlands Footnote 47 the Court extended the duty to strike a fair balance to the domain of the rights of long-term migrants who have a non-settled (irregular) migration status. The applicant, who was a national of Suriname, had a husband with Dutch nationality as well as three children born in the Netherlands who also all had Dutch nationality. Her attempts to gain a residence permit were consistently refused by authorities on the ground of her failure to comply with national immigration rules.Footnote 48 The Court in this case paid due regard to multiple factors such as her status as the primary caregiver for her children, her level of integration into the society, the contribution of the actions of the government to her long-term stay and the absence of a criminal record. Instead of developing the normative significance of long-term migration, however, the Court found the facts of the case exceptional in deciding that the state had failed to strike a fair balance.Footnote 49

3.3. Can Time Alone Trigger Claims of Discriminatory Treatment?

The discrimination clause in the European Convention on Human Rights (Article 14) is well known for its dependency on other rights in the Convention.Footnote 50 A long-term migrant pursuing a case under Article 14 must show that one of the rights protected in the Convention is involved and in the context of this right the migrant is subject to discriminatory treatment. As shown in the previous section, making discrimination arguments for long-term irregular migrants faces an insurmountable obstacle, as such migrants, prima facie, do not enjoy, for example, a family life in the receiving state that may protect them from deportation or allow them to receive regularised status. The case law of the European Court of Human Rights, however, recognised that legally resident long-term migrants can have legitimate discrimination claims with respect to their enjoyment of possessions (pensions and benefits) and enjoyment of their right to private and family life.

The principal case that recognised that long-term migrants must not be discriminated against based on their nationality is Gaygusuz v Austria, decided in 1996.Footnote 51 In this case, paying due regard to the long-term legal migrant status of Gaygusuz, the Court found that withholding social security benefits from him based on his nationality was a violation of the prohibition against discrimination in conjunction with the right to enjoyment of possessions. The Court found that an Austrian citizen and Gaygusuz were like-for-like, in the sense that they both contributed to social security funds and must therefore be treated in the same way. In this case, the Court made what is still regarded as a bold statement in stating that ‘very weighty reasons were required to justify discrimination’ between legally settled long-term migrants and citizens.Footnote 52 In subsequent cases, the Court has continued to entertain discrimination claims, also in conjunction with the long-term migrant's right to family life, holding, for example, that denial of child benefits to legal long-term migrants because their residence permits were time-limited was discriminatory.Footnote 53

It was the Anakomba Yula case against Belgium in 2009 that allowed the Court to elucidate a more principled stance with respect to discriminatory practices against irregular long-term migrants. The government, in this case, argued that the irregular status of a migrant is an objective ground for discrimination in the context of requests for judicial assistance in paternity proceedings.Footnote 54 The Court rejected this argument and stated that only ‘very weighty reasons could justify a difference of treatment between the applicant who did not have a residence permit and people who did have such a permit’.Footnote 55 In reaching this conclusion, however, the Court used fact-specific arguments that the applicant was a ‘quasi-regular migrant’; thus it fell shy of developing a normative stance that tied equality claims with the time spent by the migrant in the country and not the legal status of the migrant.Footnote 56

The case of Bah v United Kingdom in 2011 put to the test whether the ‘very weighty reasons’ concept meant a special type of balancing exercise in discrimination cases involving long-term migrants.Footnote 57 The applicant in this case was denied equal treatment in accessing priority social housing because, even though she was a long-term migrant with regular residency status, her juvenile son, who travelled from Sierra Leone to join her, was in the UK under immigration control orders. The housing authorities refused to put her on the priority social housing list on the basis of the immigration status of her son. The UK Equality and Human Rights Commission argued, in a third party intervention in the case, that this was a form of structural discrimination as the UK housing policy was based on a needs assessment and parents with children enjoyed priority under the scheme regardless of the status of the child.Footnote 58 The ECtHR, however, held that the government had a legitimate objective interest – the fair distribution of social housing – and enjoyed a wide margin of discretion in this area.Footnote 59 In this respect, the government's prerogative to organise and allocate limited resources in the area of social policy was given the upper hand at the expense of the ‘very weighty reasons’ doctrine. The Court found that:Footnote 60

[The] differential treatment to which the applicant was subjected was reasonably and objectively justified by the need to allocate, as fairly as possible, the scarce stock of social housing available in the United Kingdom and the legitimacy, in so allocating, of having regard to the immigration status of those who are in need of housing.

The time spent by a legal migrant in the receiving country thus was trumped by the prior needs of the citizens to access local housing.

4. Discrepancies Between Strasbourg Case Law and Stopler's Normative Framework

The preceding analysis shows that while the length of time spent by a migrant in a country receives a normative place in the case law of the European Court of Human Rights, more time spent does not generate more rights or equal rights with citizens. Instead, the length of stay is a criterion that is taken into account together with other criteria, in particular, in conjunction with the strength of personal and social ties that a migrant is able to develop in the time that he or she spends in the receiving country, the legal nature of the length of time spent, and the recognition that citizens enjoy priority over long-term migrants in the distribution of resources. The Court, therefore, does not see jus temporis on a sliding scale, but in competition with other considerations.Footnote 61 This approach is likely to favour those who arrived in a country as a child, those who have children whose other parent is a citizen, those who can speak the language of the country and those who indisputably lost their social ties with the country from which they came. Undoubtedly, the Court also looks more favourably upon legally resident long-term migrants than irregular migrants, despite the significant amount of time the latter may have spent in a country.Footnote 62 None of these considerations taken together, however, can trump the weighty public interests of states, which allow them to deny residency and expel migrants or to refuse to distribute social benefits based on migration status.

Why is there a discrepancy between the case law and the liberal normative theory of jus temporis? We may consider two arguments to explain this. The first argument focuses on the logic of European human rights law and the way in which legal stock shapes how the ECtHR views long-term migrants. The second focuses on the liberal theory itself and asks whether making rights in immigration part of a balancing exercise, while also assigning heightened importance to the time spent in the receiving state, offers a sound applied normative theory.

4.1. The Limits of the Law

In European human rights law, the articles in the European Convention on Human Rights under which legal argumentation can be made matter significantly. Given the absence in the Convention of legally established hard norms on the rights of migrants, the case law on such rights has focused exclusively on their right to private and family life and the right to non-discrimination. While the focus on the right to private and family life humanises the migrant, it also places the burden of legal integration on the migrant, who must show that she has legal status as well as a vibrant family and social life in the receiving country. The migrant also must show that her right to private or family life is not ‘transportable’ elsewhere.Footnote 63 In most respects there is a heavy burden on the migrant to prove legal and social integration irrespective of the time spent in the receiving country. What is more, this approach does not take into account the negative effects that precarious legal arrangements or lack of citizenship have in developing a vibrant private life.

The necessity of proving the existence of a legally and socially integrated private and family life in the receiving country distracts from the neutrality of the jus temporis approach. This approach proposes time spent in the receiving country as a proxy for the existence of social ties and integration, and places the burden of legal integration on the state and not solely on the migrant. Under the temporal requirement, a migrant does not additionally have to show that she has become a successfully integrated person. The time requirement, which the Council of Europe Committee of Ministers recommends as ‘at least five years’,Footnote 64 is all that is required. The social integration model carries the risk of creating different classes of migrant without paying adequate attention to the opportunities available to migrants for such integration.

The social and legal integration bias of the case law aside, the European Court of Human Rights further sees states as enjoying a wide margin of appreciation when it comes to migration.Footnote 65 This margin of appreciation is both explicit and implicit, and is deeply entrenched in the general approach to long-term migrants in the case law of the Court. The Court has made some inroads into placing constraints on deporting migrants, as discussed in Section 3. These criteria, however, are relative to one another, and lead to casuistic reading rather than principled reasoning concerning long-term migrants. The case law is not about long-term migrants, but a long-term migrant. Cases turn on the facts, which means that the long-term status of a migrant has factual significance, but not normative significance. What is more, as long as domestic courts pay due regard to the long list of criteria that the Court has identified, the Court carries out a lenient review of the facts in the cases it adjudicates.Footnote 66

A central weakness of the Court's case law on assigning normative significance to long-term migration is its association of long-term migrants with long-term legally resident migrants. The Court, for example, holds that an illegal migrant cannot come within the protection of the right to family life on the territory of the receiving state if she and her relations had knowledge of the illegality when the family ties were formed.Footnote 67 The private and family life of an irregular or illegal migrant, therefore, is suspect, despite the length of time the person stays in another country. This assumption also goes against assigning normative significance to time. It further reifies the distinction between legal long-term migrants and illegal long-term migrants and therefore strengthens the margin of appreciation of states. It is, after all, states who decide on the legal status of migrants on their territory.

4.2. Limits of Time as a Feature of a Liberal Theory based on Balancing

The previous sections have shown that the liberal argument for jus temporis having a stand-alone normative significance in theories of migration has not been well received by the case law of the European Court of Human Rights. Time is never considered in isolation in its case law, and it receives even less consideration for irregular or illegal migrants. Is this merely as a result of the limits of human rights law and its statist bias,Footnote 68 in particular in the field of migration? Could there also be shortcomings in the liberal normative framework itself?

The liberal approach to migration, of which Stopler's work forms part, is built on two central premises. First, the theory starts with the assumption that the rights in migration are a matter of balancing between the interests of the migrant and the interests of the receiving community. This means that the moral significance of borders and national membership are taken for granted in approaching migration. Second, in the balancing act, time spent in the receiving country must work in favour of the migrant's naturalisation and her full inclusion into the society. The second aspect of the theory aims to assert that liberal theory, as applied within national borders, is nevertheless sensitive to the equal moral worth of individuals. Time spent in the country is a neutral proxy for the social integration of migrants into a national society and thus legitimises their request to be treated as citizens. Focusing on time and not social integration further respects the cultural identity of the migrant and does not place the burden of integration solely on the migrant herself.

What the analysis of Strasbourg case law shows, however, is that time spent in the country does not have a stand-alone weighty normative status as a matter of European human rights law. Its importance does not increase in the case law based on the length of time a migrant is present in the country. European liberal democratic states continue to argue, and the ECtHR tends to agree, that how and under what status the migrant spends that time matter more than the length of time itself in balancing the interests of migrants and their receiving communities, as evidenced by the cases discussed above.Footnote 69 Could liberal normative theory do more to bolster the centrality of jus temporis, while holding on to the idea that the state must play a central role in controlling migration in the interests of its citizenship?

One way forward with the weak traction of jus temporis in human rights law is to insist that after the passage of a certain amount of time (say, ten years) time spent must gain lexical priority over other concerns. In other words, it may no longer be subject to being balanced with the interests of migrant-receiving communities. Among liberal theorists, this is the position most strongly advocated by Carens.Footnote 70 In this account, the passage of time not only increases the interests of migrants, but solidifies their interests and triggers absolute duties for liberal democratic states. These duties concern equal treatment of long-term migrants with citizens in all spheres of law and policy, including the duty not to deport them. It is also argued that the lexical priority accorded to time spent must apply to both legal and irregular migrants.

A second option towards moving forward would be to expand the range of normative considerations that are included in the balancing act, so that the balancing act does not produce indeterminate outcomes for long-term migrants based on the facts of each and every case, but that it operates to defend the rights of long-term migrants qua long-term migrants. This can be done, for example, by asserting that time is not only a trigger of rights for migrants, but also of duties by the state. This requires asking not simply what the migrant has done in that time, but also whether the liberal state has met particular requirements for trying to integrate migrants. This would enable the Court to include in its examination of the cases whether there are obstacles in obtaining citizenship (say, after five years) and whether the state has provided adequate opportunities for irregular migrants to regularise their status and to apply for citizenship. Whether a state lacks an enabling environment for regularising or naturalising migrants then would become part of the balancing act in considering the right-to-remain cases of migrants. In other words, liberal theories of rights in migration may benefit from focusing on impediments that prevent jus temporis doing its normative work and highlighting more that states owe duties of inclusion to long-term migrants. The re-centring of the focus of time towards state duties would garner support both from theories of ‘fair terms of integration’Footnote 71 and from commitment to democratic inclusion.

5. Conclusion

In this article, departing from Stopler's liberal normative framework of rights in migration and her emphasis on the significance of jus temporis to demand more rights for migrants in the receiving communities, I have surveyed how jus temporis figures in the case law of the European Court of Human Rights. I have argued that jus temporis is present in the case law of the Court, but it lacks a normative significance in striking a fair balance between the rights of migrants and the receiving communities. I further held that the absence of a principled use of jus temporis in the case law of the Court is not as a result of a general statist bias, but is also because of the ambiguous guidance offered by liberal theory about how time should figure in balancing the rights of migrants and the receiving communities. The Court needs further guidance from liberal theories of migration about how normatively to defend jus temporis as a weighty normative concern. For critics of liberal theory of migration, this is a dead end. Balancing exclusion with inclusion has deeply indeterminate qualities with built-in biases in favour of exclusion, national borders and national membership.Footnote 72 At a time when, in liberal democracies across Europe, hostility to open migration policies and migrants in general is on the rise, liberal normative theory must do more to defend the rights of long-term migrants, who are stuck in the maze of domestic immigration laws. This will have the potential to improve the current case law on long-term migrants at the ECtHR, which currently focuses on the rights of individual migrants on a case-by-case basis, rather than a normative principled approach to the rights of long-term migrants in a liberal democratic regime.

References

1 Stopler, Gila, ‘Rights in Immigration: The Veil as a Test Case’ (2010) 43 Israel Law Review 183 Google Scholar. Liberal theorists disagree over the moral relevance of borders and whether they should be taken as givens (despite their historical arbitrariness) for a liberal theory of justice broadly, or of migration more specifically, or not. With respect to the former position, see Rawls, John, The Law of Peoples (Cambridge University Press 2001)Google Scholar; Miller, David, ‘Immigrants, Nations and Citizenship’ (2008) 16 Journal of Political Philosophy 371 Google Scholar. With respect to the latter position and the review of the former position, see Cole, Philip, ‘Beyond Reason: The Philosophy and Politics of Immigration’ (2014) 17 Critical Review of International Social and Political Philosophy 503 Google Scholar.

2 Stopler, ibid 187–91.

3 ibid 201–04.

4 International Organization for Migration, Global Migration Data Analysis Cenre, ‘The Central Mediterranean Route: Deadlier than Ever’, Data Briefing Series Issue No 3, June 2016, https://publications.iom.int/system/files/pdf/gmdac_data_briefing_series_issue3.pdf.

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6 ECtHR, Hirsi Jamaa and Others v Italy, App no 27765/09, 23 February 2012; European Council, ‘EU–Turkey Statement’, Press Release 144/16, 18 March 2016, http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement.

7 Xanthaki, Alexandra, ‘Against Integration, for Human Rights’ (2016) 20 The International Journal of Human Rights 815 Google Scholar.

8 ECtHR, K2 v United Kingdom, App no 42387/13, 7 February 2017 (stripping of UK citizenship from a UK/Sudan dual citizen on the ground of invovlement in terrorism).

9 ECtHR, Jeunesse v The Netherlands, App no 12738/10, 3 October 2014.

10 ECtHR, Khan v Germany, App no 38030/12, 21 September 2016.

11 ECtHR Osmanoğlu and Kocabaş v Switzerland, App no 29086/12, 10 January 2017; ECtHR, Ebrahimian v France, App no 64846/11, 26 November 2015; ECtHR, SAS v France, App no 43835/11, 1 July 2014; ECtHR, Belkacemi and Ousar v Belgium, App no 37798/13, 11 July 2017; ECtHR, Dakir v Belgium, App no 4619/12, 11 July 2017.

12 For a comprehensive and critical review of migrant-related case law of the ECtHR, see Dembour (n 5).

13 Stopler (n 1) 189.

14 ibid 190.

15 Carens (n 5).

16 Stopler (n 1) 189. But see also Antoine Pécoud and Paul de Guchteneire, ‘Migration Without Borders: An Investigation into Free Movement of People’, Global Commission on International Migration/UNESCO, Global Migration Perspectives No 27, April 2005, http://www.cestim.it/argomenti/50libera_circolazione/2005-pecoud-guchteneire-migration_without_borders.pdf.

17 Walzer, Michael, Spheres of Justice: A Defense of Pluralism and Equality (Basic Books 1983) 52 Google Scholar.

18 Carens (n 5) 89. See also Marin, Ruth Rubio, Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany and the United States (Cambridge University Press 2000)CrossRefGoogle Scholar.

19 Carens (n 5) 150.

20 Lenard, Patti Tamara, ‘The Ethics of Deportation in Liberal Democratic States’ (2015) 14 European Journal of Political Theory 464, 468Google Scholar.

21 Carens (n 5) 36.

22 ECtHR, Ramadan v Malta, App no 76136/12, 21 June 2016, para 84.

23 ECtHR, Üner v The Netherlands, App no 46410/99, 18 October 2006.

24 Khan (n 10).

25 Ramadan (n 22); K2 (n 8)

26 European Convention for the Protection of Human Rights and Fundamental Freedoms (entered into force 3 September 1953) 213 UNTS 221 (ECHR).

27 ECtHR, Karassev v Finland, App no 31414/96, 12 January 1999, para 1(b).

28 ibid; ECtHR, Savoia and Bounegru v Italy, App no 8407/05, 11 July 2006.

29 ECtHR, Genovese v Malta, App no 53124/09, 11 October 2011. The Court found that not granting citizenship to an illegitimate child of a Maltese citizen was discriminatory.

30 Ramadan (n 22). See also the dissenting opinion of Judge Pinto de Albuquerque.

31 Üner (n 23) para 54. See also Jeunesse (n 9) para 100.

32 Üner (n 23) para 55.

33 ibid para 56.

34 Jeunesse (n 9) para 104. See also Üner (n 23) para 59: ‘It must be accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of “private life” within the meaning of Article 8. Regardless of the existence or otherwise of a “family life”, therefore, the Court considers that the expulsion of a settled migrant constitutes interference with his or her right to respect for private life’. Legal status is also a significant aspect of European Union (EU) law in assigning rights to long-term migrants: Council Directive 2003/109/EC of 25 November 2003 Concerning the Status of Third-Country Nationals who are Long-Term Residents [2004] OJ L 16.

35 ECtHR, Boultif v Switzerland, App no 54273/00, 2 August 2001; Üner (n 23); ECtHR, Savasci v Germany, App no 45971/08, 19 March 2013; ECtHR, Maslov v Austria, App no 1638/03, 23 June 2008; ECtHR, Udeh v Switzerland, App no 12020/09, 16 April 2013; ECtHR, Omojudi v United Kingdom, App. no 1820/08, 24 February 2010.

36 cf Jeunesse (n 9), where ‘settled’ is used exclusively to refer to legal status; also ECtHR, Slivenko v Latvia, App no 48321/99, 9 October 2003, where the Court places emphasis on the long-term presence of the applicants in Latvia.

37 Jeunesse (n 9) para 105.

38 ECtHR, Emre v Switzerland, App no 42034/04, 22 May 2008.

39 Slivenko (n 36); Üner (n 23).

40 ECtHR, Trabelsi v Germany, App no 41548/06, 13 October 2011; ECtHR, Berisha v. Switzerland, App. no 948/12, 20 January 2014.

41 These are the legitimate aims for restriction of the rights under art 8 of the ECHR (n 26).

42 In Boultif (n 35) the Court set out detailed criteria, which include the nature and seriousness of the offence committed by the applicant; the length of the applicant's stay in the country from which he or she is to be expelled; the time elapsed since the offence was committed and the applicant's conduct during that period; the nationalities of the various persons concerned; the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life; if there is a spouse, whether the spouse knew about the offence at the time when he or she entered into the family relationship; whether there are children of the marriage, and if so their age; and the seriousness of the difficulties that the spouse is likely to encounter in the country to which the applicant is to be expelled. See also Üner (n 23) para 58.

43 Trabelsi (n 40). In this case the applicant was born in Germany in 1983 and at the time of the decision had been living there for 28 years.

44 In Omojudi (n 35) the Court took into account the nature and seriousness of the offence and the migrant's family, social and cultural ties with the host and the citizenship state, in conjunction with 26 years of residence in the UK to find the deportation order disproportionate. In Udeh (n 35) paras 52–54, the Court recognised seven and a half years as a significant amount of time in terms of length of stay.

45 Khan (n 10).

46 Üner (n 23) para 58. Despite the importance of the principles set out, the Court found no breach of art 8 of the ECHR (n 26). While it accepted that the applicant had strong ties with the Netherlands, he had weak family relationships with his partner and son. The Court held that returning the applicant to Turkey, while it may not be easy, was not unreasonable given the seriousness of his criminal convictions.

47 Jeunesse (n 9).

48 She had arrived in the Netherlands on a short-term tourist visa and remained unlawfully in the country after her visa expired.

49 Jeunesse (n 9).

50 Protocol No 12 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, (ETS No 177), also gives the principle of non-discrimination an independent status. To date, however, only 20 states have ratified Protocol 12. On the scope of art 14 and Protocol 12 see Arnardóttir, Oddný Mjöll, ‘Discrimination as a Magnifying Lens: Scope and Ambit under Article 14 and Protocol 12’ in Brems, Eva and Gerards, Janneke (eds), Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge University Press 2013) 330 Google Scholar.

51 ECtHR, Gaygusuz v Austria, App no 17371/90, 16 September 1996. See also Dembour, Marie-Bénédicte, ‘Gaygusuz Revisited: The Limits of the European Court of Human Rights’ Equality Agenda’ (2012) 12 Human Rights Law Review 689 Google Scholar.

52 Gaygusuz, ibid para 42.

53 ECtHR, Niedzwiecki v Germany, App no 58453/00, 25 October 2005; ECtHR, Okpisz v Germany, App no 59140/00, 25 October 2005.

54 ECtHR, Anakomba Yula v Belgium, App no 45413/07, 10 March 2009, para 29.

55 ibid para 37.

56 ibid para 38.

57 ECtHR, Bah v United Kingdom, App no 56328/07, 27 September 2011. See also the discussion of these cases in Dembour (n 5).

58 Bah, ibid paras 33–34.

59 ibid para 49.

60 ibid para 52.

61 On the distinctions between jus temporis and jus nexis, see Espejo, Paulina Ochoa, ‘Taking Place Seriously: Territorial Presence and the Rights of Immigrants’ (2016) 24 The Journal of Political Philosophy 67 Google Scholar.

62 ECtHR, Abuhmaid v Ukraine, App no 31183/13, 12 January 2017. The applicant had lived in the Ukraine for over 20 years.

63 Maslov (n 35) para 63.

64 Council of Europe, Recommendation Rec(2000)15 concerning the Security of Long-Term Migrants, 13 September 2000.

65 Ebrahimian (n 11); SAS (n 11); Bah (n 57).

66 Abuhmaid (n 62). On the lenient review of domestic court decisions of the ECtHR see Çalı, Başak, ‘Towards a Responsible Domestic Courts Doctrine? The European Court of Human Rights and the Variable Standard of Judicial Review of Domestic Courts’ in Arnardóttir, Oddný Mjöll and Buyse, Antoine (eds), Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations Between the ECHR, EU, and National Legal Orders (Routledge 2016) 144 Google Scholar.

67 Jeunesse (n 9). When the Court recognises that the long-term irregular migrant (a mother of three children who are all Dutch citizens) has a family life, it is very cautious to underline that this is an exceptional situation.

68 Dembour (n 5). On the analysis of discrepancies between normative theory and human rights law as a result of the latter's statist bias, see also Meckled-Garcia, Saladin and Çalı, Başak, ‘Lost in Translation: The Human Rights Ideal and International Human Rights Law’ in Meckled-Garcia, Saladin and Çalı, Başak (eds), The Legalization of Human Rights, Multidisciplinary Perspectives (Routledge 2006) 11 Google Scholar.

69 cf Omojudi (n 35) paras 45–46. EU law also reflects this approach: see, in particular, the EU Directive 2003/109/EC (n 34).

70 Carens (n 5).

71 Stopler (n 1) 192.

72 Dembour (n 51).