1. Introduction
Article 8 of the European Convention on Human Rights
and Fundamental Freedoms (hereinafter the Convention) provides the right to
respect for everyone’s private and family life and reads as follows:
1 Everyone has the right to respect for his private
and family life, his home and his correspondence.
2 There shall be no interference by a public authority
with the exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.
Thus, the right enshrined in article 8 of the
Convention is not an absolute right for individuals. Equally, it imposes
certain obligations on states. It follows that the European Court of Human
Rights (hereinafter the Court) must proceed to balance two sets of competing
interests, the right of individuals to private and family life, on one hand,
and, the interests of the community, on the other.[1] This is a
difficult exercise to carry out because it requires the Court, first, to assess
the nature of the interference by the public authority and its effect on the
individual and, second, to give prevalence to one over the other in each
particular case. This is also a delicate task to fulfil in view of the
well-established principle of international law that states have the right to
control the entry of non-nationals into their territory, which includes the
right to deport and expel. They must nevertheless respect their treaty obligations
in good faith, in particular, article 8 of the Convention and the judgments of
the Court. They may not however be required to reform their laws accordingly.[2]
Keeping in mind that my focus is on aliens in general,
refugees and other persons in need of protection in particular, the rest of
this paper is divided into five sections. In the next section, I will examine
the relevance and applicability of article 8 to immigrants, refugees, and other
persons in need of protection. I will go on, in section three, to determine the
general principles applied by the Court in assessing the scope of states’
obligations under article 8.
In view of the scarcity of the cases involving
refugees and other persons in need of protection decided by the Court on the
basis of article 8, the approach of the Court will be discussed with reference
to cases relating to immigrants. A survey of the case law shows that, in each
case before it, the Court starts by establishing the existence of an
interference with the right to respect for private and family life under
article 8(1). Only in cases where it is successful at finding an interference,
does the Court proceed to consider whether the interference can be justified as
‘necessary in a democratic society’ under article 8(2). Furthermore, it
recognises that states enjoy a wide margin of appreciation in complying with
the Convention. The Court introduced a distinction between cases of entry of
aliens in the territory of a contracting state for family reunion purposes and,
cases of removal of aliens from the territory of a contracting state resulting
in the break up of family life. A 'jurisprudence constante' reveals that, in
cases of entry, the Court will usually balance the individual’s rights against
the community’s interest at the early stage of establishing an interference
under article 8(1). In cases of removal, on the other hand, it will only
balance the individual’s rights against the community’s interests at the later
stage of considering whether or not the measure was necessary under article
8(2). Thus, I will discuss the Court's approach in establishing the existence
of an interference with the right to respect for private and family life under
article 8(1) in section four. Section five will examine the Court's approach in
finding an interference to be justified in a democratic society under article
8(2).
Finally, in section six, the approach of the Court
regarding immigrants will be applied to cases of refugees and other persons in
need of protection in particular, in order to appreciate the extent to which a
finding under article 8 may depend upon the formal status of an alien. I
conclude that the case law of the Court relating to article 8 and aliens is
still underdeveloped. As it stands, however, the Court follows a rather liberal
approach towards integrated aliens, including refugees and persons granted a
residence permit on the basis of article 3 of the Convention, particularly in
cases of removal. However, it is now looking more closely at the seriousness of
offences, and predominantly at elements of family life. Its position towards
other persons in need of protection remains uncertain nevertheless.[3]
2. The relevance and
applicability of article 8 to aliens, particularly refugees and other persons
in need of protection
In this paper, I shall use the term ‘refugee’ to mean
a person recognised as a refugee under article 1A(2) of the 1951 Convention
relating to the Status of Refugees (hereinafter the 1951 Convention) and
accordingly granted full Convention refugee status and permanent resident
permit (i.e., asylum). The principle of family reunion is supported in both the
Universal Declaration of Human Rights of 1948 and, the Covenant on Civil and
Political Rights of 1966.[4] Though absent
from the text of the 1951 Convention, it was unanimously endorsed by the
Conference of Plenipotentiaries which adopted the 1951 Convention, in its Final
Act.[5] Furthermore,
the principle of family reunion has been extensively promoted by the United
Nations High Commissioner for Refugees (UNHCR) over the years in various non
legally binding instruments.[6] The question
whether or not the family of a refugee can be reunited is therefore a question
to be determined by domestic provisions on asylum and immigration. The laws and
practice of European states show that reunion is generally recognised to the
nuclear family of a refugee.[7]
In addition to asylum granted to refugees, there
exists in Europe two alternative forms of protection for persons who fail to be
recognised as refugees: subsidiary protection and temporary protection.
Subsidiary protection concerns the possibility for remaining recognised to
individuals who do not qualify for refugee status but who nevertheless cannot
be returned to their country of origin by application of the principle of
'non-refoulement'. Beneficiaries of subsidiary protection include humanitarian
cases, persons protected under article 3 of the Convention, persons in a
refugee-like situation, and persons fleeing other situations not covered by the
1951 Convention. They are usually granted lesser rights than refugees, in
particular, a renewable but only temporary residence permit and no right to
family reunion. Temporary protection, on the other hand, refers to measures of
protection of a temporary nature for displaced persons (i.e., persons
requesting international protection in the event of a sudden mass flight of
people) and who, given the opportunity, may well qualify as refugees under the
1951 Convention.[8] Like
beneficiaries of subsidiary protection, their right to remain is only
temporary. A few states only are willing to accept close family members in this
context.[9] The Commission
of the European Union is proposing to extend the right of family reunion to
beneficiaries of temporary protection in its current draft for a joint action
on temporary protection for displaced persons.[10]
At the time of writing, this proposal has only received lukewarm support and
discussions continue. In particular, some member states are strongly opposed to
the right of family reunion.[11]
Thus, in most European states, persons not recognised as refugees but
nevertheless in need of protection (i.e., asylum seekers, humanitarian or de
facto refugees and to some extent displaced persons) are denied the right to
family reunion. This is in spite of the fact that family reunion is considered
a basic human right. All the same, states are bound to comply in good faith
with Convention law, including the judgments of the Court.
The Court originally recognised the relevance and
applicability of article 8 of the Convention to aliens seeking entry into the
territory of a contracting state in order to join their respective wives
lawfully residing there in Abdulaziz, Cabales and Balkandali v. UK.[12]
This principle was extended to cases of minors seeking entry in the territory
of a contracting state in order to join their parents in Gül v. Switzerland,[13]
Nsona v. the Netherlands,[14]
and Ahmut v. the Netherlands.[15]
The Court relied for the first time on article 8 in a case of deportation in Berrehab
v. the Netherlands.[16]
This was confirmed in several other instances, such as, Moustaquim v.
Belgium,[17]
Beldjoudi v. France,[18]
Bouchelkia v. France,[19]
and Boujlifa v. France.[20]
Finally, the Court even recognised the application of article 8 to cases
specific to one country, i.e., permanent exclusion from the French territory,
in Mehemi v. France[21]
and El Boujaidi v. France.[22]
Thus, article 8 imposes limitations on the scope of a contracting state’s power
of removal or of refusal of entry of an alien and it is this scope which has
come under increasing scrutiny by the Court during the last 15 years.
Considering the sensitivity of the matter, the Court repeatedly added that such
limitations did not however amount ‘to impose on a State a general obligation
to respect the choice by married couples of the country of their matrimonial
residence and to authorise family reunion in its territory’.[23]
It must be noted that article 8 is not the only
provision of the Convention imposing an obligation upon contracting states to
refrain from deporting or expelling an alien. The Court, in particular,
recognised that, in extreme cases, a state’s responsibility may be engaged
under article 3 if it were to expel a person to a country where s/he may be
subject to torture, inhuman or degrading treatment.[24]
The principle was first held in the context of extradition in Soering v. UK.[25]
It was further extended to cases of expulsion, removal and deportation of
asylum seekers,[26]
unaccompanied minors[27]
and, drug smugglers.[28]
Furthermore, the Court recognised that the applicant must be guaranteed an
effective remedy against a decision of expulsion under article 13 of the Convention.[29]
The recent case law of the Court shows the increasingly significant role played
by article 13 in cases of removal of aliens, and points out to confirming the
autonomous character of article 13 vis-à-vis a violation of a provision of the
Convention, i.e., the applicant only need to show that s/he has an ‘arguable
claim’ of a violation of the Convention.[30]
3. Principles applicable by the Court
Since Abdulaziz, Cabales and Balkandali v. UK,[31]
the Court has had to deal with just over 15 cases of alleged breaches of
article 8 brought against a contracting state by a non-national, the majority
of which concerned integrated aliens (including second-generation immigrants)
facing deportation. Only two of the cases involved illegal immigrants facing
expulsion (Cruz Varas and Others v. Sweden and Boughanemi v.
France).[32]
A further two cases involved beneficiaries of subsidiary protection, who had
been granted a residence permit on humanitarian grounds (Gül v. Switzerland
and Nsona v. the Netherlands).[33]
Thus, there exists no precedent on article 8 and refugees and very little on
article 8 and other persons in need of protection. As a result, this section
will examine the principles applied by the Court as emerging from its case law
on immigrants in order to appreciate, later on, their potential application to
refugees and other persons in need of protection.
The principles applied by the Court in assessing the
scope of states’ obligations under article 8 were summarised in Gül v.
Switzerland as follows:
(a)
The Court reiterates that the essential object of Article 8 is to protect the
individual against arbitrary action by the public authorities. There may in
addition be positive obligations inherent in effective “respect” for family
life. However, the boundaries between the State’s positive and negative
obligations under this provision do not lend themselves to precise definition.
The applicable principles are, none the less, similar. In both contexts regard
must be had to the fair balance that has to be struck between the competing
interests of the individual and of the community as a whole; and in both
contexts the State enjoys a certain margin of appreciation.
(b)
The extent of a State’s obligation to admit to its territory relatives of
settled immigrants will vary according to the particular circumstances of the
persons involved and the general interest.
(c)
As a matter of well-established international law and subject to its treaty
obligations, a State has the right to control the entry of non-nationals into
its territory.
(d)
Where immigration is concerned, Article 8 cannot be considered to impose on a
State a general obligation to respect the choice of married couples of the
country of their matrimonial residence and to authorise family reunion in its
territory. In order to establish the scope of the State’s obligations, the
facts of the case must be considered.[34]
Thus, article 8 may only be violated if family life can not realistically be
continued elsewhere.
In contrast with the Court’s case law relating to
other provisions of the Convention, the Court’s approach in respect of article
8 is surprising for its lack of any precise criteria.[35]
In particular, a comprehensive set of criteria has emerged from the Court’s
case law on article 3, i.e., state’s responsibility may be engaged where
‘substantial grounds’ exist for believing that the applicant faces ‘a real
risk’ of being subjected to ill-treatment in the country to which s/he is to be
returned. Furthermore, the Court specified the criteria used to assess the risk
element as well as the minimum level of severity for ill-treatment.[36]
Specific criteria in the application of article 8 are
lacking. This is particularly relevant with regard to ‘the threshold level of
convictions and re-offending, physical and linguistic handicaps taken into
account, the nature of offences, the substance of family life and definition of
the family community to be protected under Article 8, definition of European
public order in this context’.[37]
The Court follows a case-by-case approach. A survey of the case law, while
revealing consistency in the Court's general approach to article 8,[38]
shows nevertheless discrepancies in its application of the factors relied upon to
assess the existence and necessity of an interference.
4. The approach of the Court in establishing an
interference with ‘the right to respect for private and family life’ under
article 8(1)
4.1. The legal definition of ‘private and family life’
While article 8 of the Convention protects ‘private
and family life’, for many years the Court’s approach has been to rule
exclusively on the basis of ‘family life’ within the context of article 8(1).[39]
It is now looking at both elements.
4.1.1. Family life
In Abdulaziz, Cabales and Balkandali v. UK, the
Court recalled that article 8 ‘presupposes the existence of a family’. It then
added
this does not mean that all intended family life falls
entirely outside its ambit. Whatever else the word “family” may mean, it must
at any rate include the relationship that arises from a lawful and genuine
marriage, such as that contracted by Mr. and Mrs. Abdulaziz and Mr. and Mrs.
Balkandali.[40]
Despite some doubts on the validity of Mr and Mrs
Cabales marriage, the Court considered it sufficient for a family to be
established, that
Mr. and Mrs. Cabales had gone through a ceremony of
marriage and the evidence before the Court confirms that they believed
themselves to be married and that they genuinely wished to cohabit and lead a
normal family life.[41]
It results from the case Berrehab v. the
Netherlands that cohabitation does not constitute ‘a sine qua non of family
life between parents and minor children’ and that
a child born of such a [marital] union is ipso jure
part of that relationship; hence, from the moment of the child’s birth and by
the very fact of it, there exists between him and his parents a bond amounting
to “family life”, even if the parents are not then living together.[42]
And, in Boughanemi v. France, the Court
explicitly recognised that
The concept of family on which Article 8 is based embraces,
even where there is no cohabitation, the tie between a parent and his or her
child, regardless of whether or not the latter is legitimate.[43]
The cases Nasri v. France, Gül v.
Switzerland and Ahmut v. the Netherlands[44]
offer further examples of links amounting to ‘family life’ between a child and
both of his parents or at least one of them.[45]
Thus, in the context of family reunion of an alien,
family life between parents and children does not cease following the divorce
of a married couple.[46]
Nor does it cease as a result of living apart.[47]
The Court has so far explicitly recognised the existence of ‘family life’
between members of the nuclear family, i.e., spouses and, parents and their
minor children.[48]
It seems to have also implicitly recognised family life from ties between near
relatives in the context of family reunion of an alien.[49]
4.1.2. Private and family life
Chorfi v. Belgium offers the
first instance in which the Court decided to consider the relevance of article
8(1) in light of the concept of ‘private and family life’. In this case, the
Court reiterated its longstanding understanding of the concept of ‘family’
within the meaning of article 8, i.e., the tie between lawfully and genuinely
married persons even if not yet cohabiting and leading a normal family life,
and, the tie between a parent and his or her child, regardless of whether or
not the latter is legitimate, and of whether or not there is cohabitation.
Having recognised the existence of family life, it added that
Mr. C established real social ties in Belgium. … He
accordingly also established a private life there within the meaning of Article
8, which encompasses the right for an individual to form and develop
relationships with other human beings, including relationships of a
professional or business nature.[50]
The Court concluded that the applicant’s deportation
amounted to an interference with his ‘right to respect for his private and
family life’.[51]
Explicit considerations of ‘private and family life’ were again made in order
to find interference, in four cases, in 1997.[52]
In all four cases, the Court considered elements drawn from both spheres,
private life and family life, in order to establish an interference (e.g.,
numbers of years spent in France, getting an education there, working there,
and having family ties in France).
4.2. Lack of respect for private and family life
4.2.1. States’ margin of appreciation
It is clear for the Court that the ‘essential object
of Article 8 is to protect the individual against arbitrary action by the
public authorities’, i.e., the state must not interfere with the enjoyment of
the right to private and family life.[53]
In addition to this negative obligation, the state is also under a positive
obligation, i.e., it must ensure that the right to family life is guaranteed
and fully respected to everyone under its laws and, that individuals are
protected against interference by private actors.[54]
The Court also recognises that ‘the notion of “respect” is not clear-cut’; this
is because states ‘enjoy a wide margin of appreciation in determining the steps
to be taken to ensure compliance with the Convention with due regard to the
needs and resources of the community and of individuals’.[55]
As a result, regard must be had to the balance to be ‘struck between the
competing interests of the individual and of the community as a whole’.[56]
In immigration and asylum cases, a positive obligation
arises when an alien seeks to enter the territory of a member state in order to
be reunited to a family member lawfully residing there (e.g., a refugee or the
beneficiary of subsidiary protection or of a temporary protection regime). In
such cases, the failure of the state to admit a family member may result in a
breach of article 8. A negative obligation, on the other hand, arises when the
state is asked by the alien not to be removed because this would result in the
breaking up of family life. Where the applicant is a refugee or a person in
need of protection, states have further obligations under article 3 of the
Convention. Indeed, state’s refusal to admit a family member of a refugee or a
person in need of protection means, a contrario, that this person is expected
to return to her/his country of origin in order to enjoy family life. Likewise,
state’s responsibility would be engaged if it were to remove an applicant to a
country where s/he would run a real risk of ill-treatment. While in cases of
entry, the Court examines the interests at stake when establishing the
existence of an interference, it waits for a later stage in cases of removal.
4.2.2. Aliens seeking entry into the territory of a
contracting state in order to be reunited with a family member
Refusal to enter may only constitute ‘interference’ if
three requirements are met. First, there must be an effective or strong family
life as defined by the Court in the cases discussed above in section 4.1.
Second, the state against which the proceedings have been brought must in fact
be the author of the violation.[57]
Third, obstacles must exist against continuing a normal family life elsewhere,
including the alien’s country of origin.[58]
The Court’s approach to the question of whether it is reasonable to expect
aliens to develop normal family life elsewhere is particularly restrictive
towards aliens seeking entry for the purpose of family creation, i.e., the
members of the family have never lived together or have lived apart for a very
long time. The Court systematically affirms the principle that article 8 cannot
be held to impose on states a duty to respect immigrants’ choice of residence
and authorise family reunion on their territory. It then proceeds to balance
the applicant’s right to family life against the state’s right to control
immigration at the early stage of establishing interference. As a result, no
interference has yet been found by the Court as the following cases show.[59]
In Abdulaziz, Cabales and Balkandali v. UK, the
Court found that ‘the applicants had to a sufficient degree entered upon
“family life”’ but that they had ‘not shown that there were obstacles to
establishing family life in their own or their husbands’ home countries or that
there were special reasons why that could not be expected of them’.[60]
To reach its conclusion, the Court pointed out to the fact that the case concerned
the creation of family life rather than the continuation of already existing
family life and to the absence of obstacles in establishing family life in
their husbands’ countries. It then added that the three wives knew at the time
they entered into marriage that their husband had been admitted in the UK only
for a limited period or, in the case of Cabales, had not yet been given leave
to enter.[61]
The Court reached a similar conclusion in Gül v.
Switzerland. I shall briefly summarise the facts of this case because it
deals specifically with asylum. Mr Gül, a Turkish citizen, arrived in
Switzerland and requested political asylum. Following the rejection of his
request, he was advised to withdraw his application on the grounds that he
would most likely fail again on appeal. He was however granted a temporary
residence permit on humanitarian grounds, valid for himself, his (seriously
ill) wife and their daughter. The Swiss authorities refused to allow his two
sons, who had remained in Turkey, to come and join them. The Court found the
existence of family ties between the parents and their son aged eight. However,
it concluded that no interference had occurred because although ‘it would
admittedly not be easy for [Mr and Mrs Gül] to return to Turkey’ to live with
their son, there existed ‘strictly speaking no obstacles preventing them from
developing family life in Turkey’.[62]
The grounds for the Court’s ruling were as follows: first, Mr Gül had only been
allowed to remain in Switzerland on humanitarian grounds, second, he had
returned to his home country, Turkey, to visit his son in recent years thereby
demonstrating that his home country was safe to return to, third, he would
continue to benefit from an income and allowances in Turkey, fourth, his wife’s
health was improving, and fifth, his son had always lived in Turkey.
In Ahmut v. the Netherlands, the Court,
following its reasoning in Gül v. Switzerland, it did not find a
violation of article 8 on the ground that the refusal to grant a residence
permit to Mr Ahmut’ son did not amount to an interference because there was no
obstacles to his returning to Morocco and to developing family life there. The
Court based its ruling on the following considerations: Mr Ahmut’s son still
had family in Morocco, Mr Ahmut had retained his Moroccan nationality,[63]
it was Mr Ahmut own choice to be separated from his son by moving to the
Netherlands, and no obstacles existed to his return there.
Finally, in Nsona v. the Netherlands, the Court,
after finding that the method of deportation was distressing but not
distressing enough however to amount to a breach of article 3, decided that the
deportation measure did not constitute an interference with the right to
respect the family life of the applicants. It argued that by resorting to
forged documents on the identity of the child, the interference could not be
imputed to the state in question, but to the applicants themselves.[64]
In sum, in cases of entry of an alien into the
territory of a contracting state for the purpose of being reunited with a
family member lawfully living there, including a beneficiary of subsidiary
protection, the Court proceeds to balance the individual’s rights against the
community’s interests when establishing the existence of an interference. As a
result, the balance is bound to come out in favour of the state because it will
be difficult for the individual, who is seeking leave to enter into the
territory of the state in question, to show close ties with the state in
question and weak links with the country of origin.[65]
This restrictive interpretation of article 8(1) reconciles, to some extent,
states’ practice on this issue, i.e., no right to family reunion for persons
benefiting from subsidiary protection. In addition, not all Court’s arguments
are relevant in asylum cases, e.g., the applicant acted of her/his own free
will when leaving her/his child or spouse in the country of origin.[66]
4.2.3. Aliens seeking not to be removed from the
territory of a contracting state because this would break up their family life
The Court has adopted a more liberal approach towards
aliens already present in the territory of a member state. A decision of removal
may constitute ‘interference’ if the same three requirements, as mentioned in
the section above, are met. However, the requirements are applied less
restrictively. Following the finding that private and/or family life exists,
the Court usually recognises the act of deportation, expulsion or permanent
exclusion of a territory per se, to constitute an interference.[67]
In addition, the state must be the author of the violation, as demonstrated in Cruz
Varas v. Sweden.[68]
Finally, in considering whether obstacles exist against establishing a normal
family life elsewhere, the Court, in contrast with cases of entry, will usually
balance the individual’s rights against the community’s interests only after a
lack of respect for the right to private and family life has been established,
that is to say only when considering whether the interference is ‘necessary in
a democratic society’ in the light of article 8(2).[69]
The landmark case is Berrehab v. the Netherlands,
where the Court, after recognising the existence of a ‘family life’, found that
the refusal to renew Mr Berrehab’s residence permit and his resulting expulsion
amounted to interferences.[70]
In Moustaquim v. Belgium, the Court, adopting the same liberal attitude,
decided that the deportation constituted an interference by a public authority
with the right to respect for family life.[71]
Similarly, in Beldjoudi v. France, the Court merely noted ‘in agreement
with the Commission, that enforcement of the deportation order would constitute
an interference by a public authority with the exercise of the applicants’
right to respect for their family life’.[72]
And again, in Nsari v. France, where ‘like the Commission and the
Government, the Court takes the view that the execution of the impugned measure
would amount to an interference with the exercise by the applicant of his right
to respect for his family life’.[73]
And, in Boughanemi v. France, the Court concluded that ‘Mr Boughanemi’s
deportation had the effect of separating him from them [his ten brothers and
sisters] and from the child. It can therefore be regarded as an interference
with the exercise of the right guaranteed under Article 8’.[74]
To conclude this section, Ahmut v. the Netherlands,
like Gül v. Switzerland, is a particularly disappointing case. Had the
Court decided to follow the precedent set in Berrehab v. the Netherlands
(admittedly a case of removal of aliens lawfully residing there), it can safely
be speculated that it would have found a breach of article 8. In particular, it
would have found that the refusal to grant a residence permit to a child and
the resulting departure of the child's parents amounted to interference by a
public authority. It would also most likely have found that such interference
was clearly disproportionate to the legitimate aim pursued (presumably the
economic well-being of the country) since no immigration law nor criminal law
had been breached. This is precisely what it was apparently unwilling to do in
cases of entry. It is regrettable that the Court failed to provide adequate
reasons for distinguishing between cases of entry and cases of removal of
aliens, for such distinction seems difficult to reconcile in practice. Any
refusal to admit a family member, particularly a child, to the territory of a
member state, indeed, suggests a strong expectation that the person lawfully
residing in the territory will have to return to his/her country of origin.[75]
It thus seems extraordinary that the Court chose to differentiate these cases.
It follows that, in cases of entry, interference will
be established only if the individual shows that the state has overstepped its
'wide margin of appreciation'. This makes proof difficult to establish in cases
where the family does not even live together, and the individual seeking leave
to enter has more links with the country of origin than with the country in
which the rest of the family resides. The burden of proof is less stringent in
cases of removal. This is because the individual is already living with his/her
family in the country in question. Thus, interference will not be difficult to
establish. It is only in these cases that the Court will give careful
consideration to all factors connecting the individual to the state of
residence against the 'pressing social need'.[76]
As the next section will show, the outcome of such consideration depends on the
facts and particular circumstances of each case, e.g., the strength of the
connecting factors and the interest that the state seeks to protect. It thus
falls to the state to show that the interfering measure is proportionate to the
legitimate aim pursued.
5. The approach of the Court in establishing that the
measure complies with the requirements under article 8(2)
The right to respect for private and family life under
article 8 is not unlimited. ‘Interference by a public authority with the
exercise of’ the right to respect for private and family life may be justified
if it ’is in accordance with the law and is necessary in a democratic society’.[77]
5.1. The interference must be ‘in accordance with the
law’ and in pursuance of one of the legitimate aims listed
The Court has interpreted the requirement that the
interfering measure must be ‘in accordance with the law’ to mean that it should
have a basis in domestic law, i.e., be certain and sufficiently clear. This
requirement was never disputed before the Court in cases involving aliens.
Neither was the requirement that the interfering measure be necessary in the
interests of one of the eight legitimate aims listed in article 8(2).[78]
Amongst the aims listed in article 8(2), the ones most often referred to by the
Court are the prevention of disorder and crime, and public safety.[79]
The preservation of the country’s economic well-being was referred to once in Berrehab
v. the Netherlands.[80]
5.2. The interference must be ‘necessary in a
democratic society’
The requirement that the interfering measure be
‘necessary in a democratic society’ requires the Court to balance the
individual’s right to private and family life against the community’s interests
while, at the same time, keeping in mind the wide margin of appreciation
afforded to national authorities in the field of immigration. As mentioned earlier,
the Court tends to carry out the balance prior to finding interference in cases
of aliens seeking entry of a family member. And, where no obstacles exist in
developing a normal family life elsewhere, the applicant is usually expected to
return there.
In contrast, in cases of aliens seeking not to be
removed because this would result in separating her/him from family members
already in the country, the Court requires the state to show that the measure
resulting in the interference responds to a pressing social need and, in
particular, is proportionate to the legitimate aim pursued.[81]
When appreciating the requirement of ‘necessary in a democratic society’, the
Court considers elements of family as well as private life. Some discussion of
landmark cases is instructive.
In Berrehab v. the Netherlands, the Court found
that
Having regard to these particular circumstances, the
Court considers that a
proper balance was not achieved between the interests
involved and that there
was therefore a disproportion between the means
employed and the legitimate
aim pursued.[82]
The circumstances referred to by the Court were
elements of private life (e.g., the applicant had lawfully lived in the
Netherlands for several years, he had a job and a home there, and there were no
complaints against him from the government) and family life (e.g., he had
married a Dutch woman, a child was born of the marriage, and the ties between
him and his daughter were very strong).
In Moustaquim v. Belgium, the Court found that
Having regard to these various circumstances, it
appears that, as far as respect for the applicant's family life is concerned, a
proper balance was not achieved between the interests involved …[83]
The circumstances referred to by the Court were
elements of family life (e.g., at the time of deportation, Mr Moustaquim was a
minor and his parents and seven brothers and sisters all lived in Belgium) and
private life (e.g., he arrived in Belgium at the age of two, lived there for
almost twenty years, returned to Morocco only twice for holidays and, all his
schooling had been in French).
In Beldjoudi v. France, the Court found that
Having regard to these various circumstances, it
appears, from the point of view of respect for the applicants’ family life,
that the decision to deport Mr Beldjoudi, if put into effect, would not be
proportionate to the legitimate aim pursued and would therefore violate Article
8.[84]
The circumstances referred to by the Court included
elements of family life (e.g., the age of Mr and Mrs Beldjoudi, the fact that
they had been married in France over twenty years ago and had no children) and
private life (e.g., Mr Beldjoudi had spent over forty years of his life in
France, was educated in French, and knew no Arabic).
Thus, these three cases show that when serious
offences have been committed, by integrated aliens or by aliens who have been
resident for many years in the state in question, the Court considers that
'other circumstances of the case relating to both applicants or to one of them
only, are enough to compensate for this important fact'.[85]
And, in the context of article 8(2), the Court does not restrict itself to
looking at circumstances of 'family life', i.e., strong family ties, but
considers also elements of the much wider sphere of 'private life', i.e., the
length of the stay in question.
This approach has evolved, as the following cases
show. Thus, circumstances of private and family life were again examined in Nasri
v. France, Boughanemi v. France, and Chorfi v. Belgium but it
follows from these three cases that the length of the stay in the state in
question alone is no longer considered a sufficient element to prevent removal.[86]
Further particular circumstances combined with that element are necessary,
i.e., strong family ties and being born in the country in question[87]
or strong family ties and serious physical disability.[88]
Furthermore, in Boughanemi v. France, the fact that the applicant had
retained the nationality of his country of origin counted heavily against him,
he further had demonstrated no intention of acquiring French nationality, and
the Court thus found no violation of article 8.[89]
In contrast, in Beldjoudi v. France, the failure of Mr Beldjoudi to
acquire French nationality was not considered an important factor because of
the existence of strong family ties, i.e., Mrs Beldjoudi was born in France of
French parents, had always lived in France and was of French nationality.[90]
Most recent cases confirm this observation. In Boujlifa
v. France, El Boujaidi v. France, Mehemi v. France, the Court
again referred, first, to elements of the applicants’ private life[91]
and, second, to elements of their family life.[92]
In Bouchelkia v. France, however, the special circumstances considered
by the Court were predominantly family ones.[93]
In three of these cases, the Court concluded that the order for removal from
the French territory was not in breach of article 8 because, in spite of the
existence of private life, the degree of family life was too weak to compensate
for the seriousness of the offences involved. However, this was not the case in
Mehemi v. France where the Court considered the fact that the applicant
had a spouse living in France, three children born in France, all of them with
French nationality, to be sufficient circumstances.
In sum, the European judge recognises that the removal
of an alien may raise serious questions under article 8 depending on the facts
of each case. It considers the following elements to be the most relevant when
assessing the proportionality of the interfering measure under article 8(2):
· the
length of the stay in the country in question (this is illustrated, in
particular, by the case of integrated aliens)[94]
· the
extent to which private life and/or family life is ruptured (in particular, by
assessing the strength of the family ties and of the ties with other human
beings)[95]
· factors
of immigration control (e.g., where the alien is an illegal immigrant)[96]
· being
born in the state in question (as illustrated by the case of second-generation
immigrants)[97]
· the
existence and nature of the links with the country of origin[98]
· retention
of the nationality of the country of origin and desire to acquire the
nationality of the state in question[99]
· the
gravity of the offence, the persistence of the offending behaviour, the age of
the offender and the medical and psychological disorder of the offender[100]
To conclude this section, the Court continues to apply
the principle established in the landmark cases, i.e., provided family links
are strong, only exceptional circumstances can justify the removal of an
integrated alien; criminal sentence in the state of integration is usually
regarded as sufficient.[101]
It seems to prefer a subjective appreciation of the degree of separation
experienced by the applicant to any specific criteria when balancing the
individual’s rights against the community’s interests.[102]
Thus, its approach has sometimes been described as incoherent but never as
lacking pragmatism.[103]
Its appreciation of the relevant factors has
nevertheless evolved since 1995. It seems now to consider predominantly
circumstances of family life. As a result, the existence of strong and
effective family ties is given prevalence over the length of stay, schooling
and, social and business ties. It is now also looking more closely at the
seriousness of offences.[104]
It is still too early to say whether or not a new, more coherent, trend has
been established regarding the assessment of the proportionality of an
interference.
6. Consequences to be drawn for refugees and other
persons in need of protection from the Court's approach to article 8 regarding immigrants
Article 8 does not guarantee refugees and other
persons in need of protection an unlimited right to be joined by family members
nor to be protected against separation from family members. It does however
limit the exercise of states’ discretionary powers in matters of control of
entry and, expulsion or deportation of aliens. The Court requires the existence
of strong family ties, that the interference be imputable to the state in
question and, that obstacles exist preventing the applicant from developing a
normal family life elsewhere, including the country of origin. Consequently, in
cases involving refugees and other persons in need of protection, issues of
family life intrinsically involve considerations of safe return in the country
of origin.
Although article 8 protects ‘everyone’ against
‘interference by a public authority’, the formal status of the applicant is
circumstantial in the finding by the Court of a violation of article 8.[105]
A 'jurisprudence constante' shows that only in certain circumstances would the
Court find it unreasonable to expect family members to follow the person removed
to her/his country of origin (i.e., where family members have themselves been
recognised as refugees, or have been recognised as nationals of the asylum
country, or are fully integrated aliens). In such cases, if the expulsion or
deportation measure results in a disruption or a breakdown of family life, the
interference will also be considered to be unjustified, i.e., disproportionate
to the legitimate aim pursued.[106]
It follows from this approach that persons recognised
as refugees under the 1951 Convention and persons granted a residence permit on
the ground of article 3 of the Convention would have no difficulty convincing
the Court that a return or removal to their (by definition unsafe) country of
origin would either constitute a serious obstacle against establishing family
life there or be disproportionate to the aim pursued, i.e., the protection of
the community’s interest. But this is often unnecessary. Article 3 provides an
absolute and unconditional guarantee against removal to a country where
substantial grounds exist for believing that the person concerned faces a real
risk of being subjected to ill-treatment in the country to which s/he is to be
returned. This protection extends to everyone, irrespective of conduct,
nationality or citizenship. Unlike protection under article 33 of the 1951
Convention, it does not cease as soon as the refugee becomes a danger to the
community or national security. As a result, protection against removal on the
basis of article 3 has come to apply to refugees but also asylum seekers,
beneficiaries of subsidiary protection, and beneficiaries of temporary protection,
be they illegal entrants, convicted criminals, drug traffickers or even
terrorists.[107]
The Court does not consider it necessary to investigate a complaint in the
light of article 8 once it has found a violation under article 3, and such
cases have so far been decided on the basis of article 3.[108]
Should the Court however consider the complaint also on the basis of article 8,
it is most likely that the balance of rights and interests would be weighed in
favour of the applicant and not the community.
This approach by the Court is sound in cases where the
applicant was living with her/his family in the country in question and was
seeking not to be removed from it because s/he will continue to live with
her/his family. However, in cases where the applicant is seeking leave to enter
a country to join a family member, a Court's ruling under article 8, subsequent
to a finding of a violation of article 3, remains useful, in particular, to
guide the national authorities in recognising family reunion. Indeed, family
reunion is only widely recognised to refugees. Most member states remain
unwilling to extend it, as a right, to persons in need of protection other than
refugees. Hence the significance of article 8 in cases of entry.
The Court has dealt with a complaint under article 8,
outside the scope of article 3, in only two cases.[109]
In both cases, the complaint was dismissed at the early stage of article 8(1),
i.e., on the ground that no interference with the right to respect for private
and family life existed. The first case is Gül v. Switzerland in
which the Court found the refusal to admit the child of the holders of a
residence permit on humanitarian grounds to be within the boundaries authorised
by article 8.[110]
This is a distressing finding because it implies that a state would only be
obliged to admit an alien within the context of article 8(1) if the applicant
could show the existence of an obstacle amounting to an article 3 violation to
continuing family life in the state of origin.[111]
The second case is Nsona v. the Netherlands in which the Court dismissed
the issue as follows. Having found no violation of article 3, it considered the
complaint under article 8 only to find that there had been no interference with
the applicant’s right to respect for family life because although the
applicant, Ms. Nsona, had been granted a residence permit on humanitarian
grounds, the child seeking admission into the Netherlands was not in fact her
daughter.[112]
The situation thus remains uncertain in cases where
the applicant is a displaced person or the beneficiary of a residence permit on
grounds other than article 3 of the Convention. In both Nsona v. the
Netherlands and Gül v. Switzerland, the Court dismissed the case at
the early stage of article 8(1).[113]
Should the Court ever deal with such a case beyond the point of interference,
one could say that, in view of the temporary nature of the situation of these
persons, the Court would most likely give greater weight to the control of
asylum over the applicant's rights. This is because strong links with the
country of refuge would be difficult to establish (e.g., on grounds of
education, work experience or family).[114]
As a result, the disproportionate character of the interfering measure would
become less blatant and the temptation to have the 'pressing social need'
prevailing over the applicant’s rights could become more real.[115]
Thus, however liberal this approach, which was developed in the landmark cases,
may be to integrated aliens, it may become illiberal in practice when applied
to displaced persons, asylum seekers and other persons in need of protection.
Recent cases show however that the Court is now
scrutinising more closely the seriousness of offences and looking predominantly
at elements of family life. This being the case, the interest of the state
would most certainly prevail over the applicant's rights, in cases where
serious offences have been committed by the persons in need of protection and
the person in question has no strong family links in the country of
integration. In such situations, only refugees and persons protected on the
basis of article 3 of the Convention would find themselves protected against
removal. However, in a situation where the person in need of protection has not
committed a serious offence, the balance of interest would most likely weigh in
her/his favour. It is thus important that the Court concentrates on elements of
family life and the seriousness of offences when assessing the scope of states'
responsibility under article 8 in respect of persons in need of protection,
rather than focus on circumstances relating to entry and permanent stay.
[1]
Note that it falls to the state’s competent institutions to assess the actual
existence of family links and the necessity requirement that the interfering
measure does in fact affect these links. The task of the Strasbourg organs is
limited to that of a subsidiary organ of control. See, e.g., Meulders-Klein, M.
T. (ed.), Internationalisation des droits de l'homme et évolution du droit
de la famille: Actes des Journées d'études des 15 et 16.12.1994, L.G.D.J.
(1996), 186. On the doctrine of the margin of appreciation and the subsidiary
role of the Convention, see, Harris, D.J., O' Boyle, M., and Warbrick, C., Law
of the European Convention on Human Rights, London: Butterworths (1995),
14-15.
[2]
Court's judgments are merely declaratory (Article 53 of the Convention).
See, Meulders-Klein, note 1, 193 and, more generally, 188-213; also,
Harris, et al., note 1, 26.
[3]
Note that this paper is primarily based on a survey of the judgments of the
Courts. Reference to the decisions of the European Commission of Human Rights
(hereinafter the Commission) will be scarce. For details, refer to Madureira,
J., ‘The case-law of the organs of the European Convention on Human Rights
relating to foreigners’, Council of Europe, Demo MM4 (94) 3 (1994),
Anderfuhren-Wayne, C. S., 'Family United in Immigration and Refugee Matters:
United States and European Approaches', 8 (3) International Journal of
Refugee Law 1996, 356-369, Corouge, E., 'Le respect de la vie familiale:
expulsion des étrangers et article 8 de la Convention Européenne des droits de
l'homme', 13 (2) Revue Francaise de Droit Admisnistratif 1997, 318-21,
Storey, H., 'The Right to Family Life and Immigration Case Law at Strasbourg',
39 International and Comparative Law Quarterly 1990, 329-330, and
Jacobs, F.G., & White, R. C. A., The European Convention on Human
Rights, Oxford: Clarendon (1996), 180-185.
[4]
GA Resolution 217 A (III) of 10 December 1948, article 16(3), and, GA
Resolution 2200 A (XXI) of 16 December 1966, article 23(1).
[6]
For the UNHCR, reunion should concern not only the nuclear family, i.e.,
husband and wife, their minor or dependent, unmarried children, and minor
siblings, but also other dependent members or relatives, such as grandparents,
grandchildren and married brothers and sisters (UNHCR, Division of
International Protection, Resettlement Handbook, Geneva, 1997, 4.6). See
also, EXCOM conclusions No.9 (XXVIII) 1977, No.15 (XXX) 1979, No.24 (XXXII)
1981, EXCOM Report of 12 October 1998, calling on signatories to the 1951
Convention to do more to ensure the unity of refugee families, and, finally,
UNHCR Handbook on Procedures and Criteria for Determining Refugee
Status, Geneva, 1992, Ch.VI.
[7]
Lambert, H., Seeking Asylum: Law and Practice in Selected European States,
Leiden: Martinus Nijhoff (1995), 147-156. See also, article 4 of the Dublin
Convention determining the state responsible for examining applications for
asylum lodged in one of the member states of the European Community and,
article 35 of the Schengen Convention of 19 June 1990.
[8]
Article 1, Commission’s amended proposal for a joint action concerning
temporary protection of displaced persons [1998] O.J. C268/13.
[9]
E.g., Sweden, Norway, Italy and Spain. In the UK, such right was restricted to
displaced persons from the former Yugoslavia accepted under the Temporary
Protection Programme (also known as the '1000 quota'), including those who were
evacuated for medical reasons (background country information provided by
the Home Office, Immigration and Nationality Directorate, June 1998). See,
generally, Parliamentary Assembly of the Council of Europe, 'Report on
temporary of persons forced to flee their countries', Doc.7889, 18 July 1997
and, explanatory memorandum.
[10]
[1998] O.J. C268/13. Under article 7 of the draft proposal, beneficiaries of
temporary protection holding an authorisation to remain are entitled to family
reunification with respect to their spouses and minor and dependent children as
a minimum right.
[23] Gül v. Switzerland, para.38, note 13.
First held in Abdulaziz, Cabales and Balkandali v. UK, para.68,
note 12.
[24]
Article 3: No one shall be subjected to torture or to inhuman or degrading
treatment or punishment. See, Lambert, H., ‘Protection against Refoulement in
Europe: Human Rights Law comes to the Rescue’, I.C.L.Q., forthcoming.
[29]
Article 13: Everyone whose rights and freedoms as set forth in this Convention
are violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons acting in an
official capacity.
In cases where the person is lawfully in a state, this
right is further provided by article 1 of Protocol 7.
[30]
Giakoumopoulos, C., ‘La Convention Européenne des Droits de l’Homme et le droit
de recours des demandeurs d’asile déboutés’, report for the CAHAR, Strasbourg:
Council of Europe, 20 March 1996. See also, Labayle, H., ‘L’éloignement des
étrangers devant la Cour européenne des droits de l’homme’, 13(5) R.F.D.adm.
1997, 983.
[32]
Judgment of 20 March 1991 (case 46/1990/237/307) and judgment of 24 April 1996
(case 16/1995/522/608), respectively.
[33]
Notes 13 and 14, respectively. Note that in Chahal v. UK (note 26) and D.
v. UK (judgment of 2 May 1997, case 146/1996/767/964), the Court found a
violation of article 3 of the Convention and thus did not consider it necessary
to further examine the complaint in the light of article 8.
[35]
Concurring opinion by Judge Pettiti in Nasri v. France (judgment of 13
July 1995, case 18/1994/465/546).
[38]
I.e., in each case before it, the Court establishes the existence of an
interference under article 8(1) prior to considering whether the interference
can be justified under article 8(2).
[39]
See, for instance, Moustaquim v. Belgium, paras.46-47 (note 17):’This conclusion
makes it unnecessary for the Court to consider whether the deportation was also
a breach of the applicant’s right to respect for his private life’. And Beldjoudi
v. France, paras.79-80 (note 18): ‘Having reached this conclusion, the
Court need not examine whether the deportation would also infringe the
applicants right to respect for their private life’.
[45]
Looking at decisions from the Commission, it further appears that some elements
of stability must be shown in order for ties established by an alien in a contracting
state to constitute family life. For instance, the Commission recognised the
ties between a rejected asylum seeker and his Swedish wife to constitute family
life because, although they already knew that his application for asylum would
be rejected before entering into marriage, they had been living together for
several years before their marriage (32025/96 DR 87, p.173, but see 1133/85 DR
43, p.227, 11945/96 DR 51, p.186 and, 12122/86 DR 50, p.268). While,
relationships outside marriage might constitute family life, the Commission
does not however recognise a homosexual relationship to constitute such life
(28318/95 DR 85, p.149) but it may constitute private life (9369/81 DR 32,
p.223).
[46]
E.g., Berrehab v. the Netherlands (note 16) and Chorfi v. Belgium,
judgment of 7 August 1996 (case 35/1995/541/627).
[47]
E.g., in Moustaquim v. Belgium, the Court recognised the existence of
family life from the bonds between the applicant and his parents because
although he had been separated from them for more than five years as a result
of being deported, ‘he tried to remain in touch by correspondence’ (para.36,
note 17). Similarly, in Gül v. Switzerland, the Court ruled that the
bond of family life between the applicant and his eight years old son had not
been broken, despite the fact that the applicant had left Turkey when his son
was three months old, because the applicant had repeatedly asked the Swiss
authorities to allow his son to join him and he had visited him several times
in Turkey (para.32, note 13).
[48]
See, Mas, M.E., 'La protection des enfants mineurs en Europe', 4 Bulletin
des Droits de l'Homme 1995, 30-41.
[49]
In Nsona v. The Netherlands, para.114 (note 14), the Court implicitly
recognised the existence of family life between an orphan child and her aunt
within the meaning of article 8(1). This reasoning is consistent with the
Court’s decisions in cases involving nationals, where it has long recognised
the existence of family life between near relatives (Marcks v. Belgium,
para.45, judgment of 13 Jun. 1979; Olsson v. Sweden, para.81, judgment
of 24 Mar. 1988; Kroon, judgment of 27 Oct. 1994). See, Kempees, P., A
Systematic Guide to the Case-law of the European Court of Human Rights
1960-1994, Vol.I, The Hague: Martinus Nijhoff (1995), 539-550. Generally,
on the contribution of the Council of Europe to family law, see, Lowe, N.,
& Douglas, G. (eds.), Families Across Frontiers, The Hague: Martinus
Nijhoff (1996), 13-25.
[50]
Para.25 (note 46). The Court referred to paragraph 29 of its judgment in Niemietz
v. Germany (1992), where it held that ‘it would be too restrictive
to limit the notion to an “inner circle” in which the individual may live his
own personal life as he chooses and to exclude therefrom entirely the outside
world not encompassed within that circle. Respect for private life must also
comprise to a certain degree the right to establish and develop relationships
with other human beings’. See, Kempees, note 49, 534-35.
[51]
The Court considered the following elements as constituting private life: Mr
Chorfi had lived in Belgium from the age of 11, went to school there, underwent
vocation training and worked there for many years.
[52]
Bouchelkia v. France, Boujlifa v. France, El Boujaidi v. France and, Mehemi
v. France, notes 19, 20, 22, and 21, respectively.
[53]
E.g., Abdulaziz, Cabales and Balkandali v. UK, para.67, note 12, and Gül
v. Switzerland, para.38, note 13.
[54] This is because the Court views the Convention as protecting the
effective rather than the theoretical enjoyment of rights (Golder v. UK,
1975 and, Airey v. Ireland, 1979). See, e.g., Harris, et al., note 1,
19-22; Kempees, note 49, 507-523, and Anderfuhren-Wayne, note 3, 356.
[57]
In Nsona v. the Netherlands (note 14), the Court found no interference
with the right to respect for family life because the state could not be blamed
for the applicants’ deceitful act regarding the identity of the nine years old
child.
[58]
The Commission also recognised that the actual procedure of entry for a spouse
may raise an issue under article 8(1) when the period required for granting an
entry clearance is found to be unreasonably long (7048/75 DR 9, p.42).
[59]
Note that in both cases Gül v. Switzerland (note 13) and Ahmut v. the
Netherlands (note 15), the Commission reported that there had been an
interference. See also, dissenting opinion by Judge Martens in Gül v.
Switzerland, finding that an examination of the interests of the state
should only take place when assessing whether an interference is justified
under article 8(2), therefore after it has been found that there has been an
interference.
[65]
Ovey, C., 'The Margin of Appreciation and Article 8 of the Convention', 19 (1) Human
Rights Law Journal 1998, 10.
[66]
Steijn, A. van, ‘Protection of the Refugee Family and Article 8 of the
Convention’, paper presented at the ELENA International Course, Strasbourg, May
1997.
[67]
Warbrick, C., 'The Structure of Article 8', 1 European Human Rights Law
Review 1998, 38-39. The act must nevertheless be certain and enforceable (Vijayanathan
and Pusparajah v. France, judgment of 27 August 1992).
[68]
In Cruz Varas v. Sweden (note 32), the Court found no interference with
the family life of the applicants on the ground that no obstacles existed
against continuing family life in their home country. The Court, in particular,
referred to its finding of no violation concerning the applicants’ complaints
under article 3. It also referred to the fact that the family members had only
been separated as a result of the applicants disappearing into hiding following
their expulsion order. It therefore concluded that responsibility for family
separation could not be imputed to Sweden.
[72]
Para. 25, note 18. In Lamguindaz v. UK (judgment of 23 June 1993), the
Commission found an interference with family life on the basis of elements
drawn from the sphere of family life but without proceedings to balance these
elements against the community’s interest. Following the revocation of the
deportation order, the case was struck off the list of cases pending before the
Court.
[74]
Para. 35, note 32. See, also Chorfi v. Belgium (note 46), Bouchelkia
v. France (note 19), El Boujaidi v. France (note 22), Boujlifa v.
France (note 20) and, Mehemi v. France (note 21).
[75] Ovey, note 65, 10 (referring to Judge Wildhaber's concurring opinion
in Stjerna v. Finland that too often 'a case can be analysed equally
well in terms of a positive or a negative obligation').
[76]
See, Storey's reference to the 'elsewhere' approach and the 'connections'
approach. Storey, note 3, p.337.
[78]
National security, public safety, economic well-being of the country,
prevention of disorder or crime, protection of health or morals and, protection
of rights and freedoms of others.
[79]
E.g., Beldjoudi v. France and Moustaquim v. Belgium, notes 18 and
17, respectively. Note that the Commission does not consider the refusal to
admit a second wife as contrary to article 8, even if her children are already
living in the state in question. Polygamy being an offence in all European
states, the Commission finds this interference to be ‘in accordance with the
law’ and in pursuance of the protection of morals or of the rights and freedoms
of others. Steijn, note 66.
[81]
E.g., Abdulaziz, Cabales and Balkandali v. UK, para.67 (note 12); Berrehab
v. the Netherlands, paras.28-29 (note 16); Moustaquim v. Belgium,
para.43 (note 17); Beldjoudi v. France, para.74 (note 18).
[86]
20 years in the case of Mr Boughanemi (note 32), 25 in the case of Mr Chorfi
(note 46) and, about 30 years in the case of Mr Nasri (note 35).
[87]
As successfully demonstrated in Beldjoudi v. France (note 18) and Mehemi
v. France (note 21) but not in Boughanemi v. France (note 32) nor Chorfi
v. Belgium (note 46).
[88]
For instance, being born deaf and dumb, as successfully demonstrated by the
case Nasri v. France (note 35).
[89]
Note 32. Warbrick criticises this judgment in the light of Moustaquim v.
Belgium, Beldjoudi v. France and Nasri v. France. Warbrick,
note 67, 40.
[91]
Mr Boujlifa has arrived in France at the age of five, Mr El Boujaidi seven, Mr
Mehemi was born in France; Mr Boujlifa had lived there for 23 years, Mr El
Boujaidi 17, Mr Mehemi 33, they had all received their education in France,
worked there, but they had not shown any desire to acquire French nationality.
Furthermore, Mr El Boujaidi did not show that he knew no Arabic, nor that he
had never returned to Morocco. On the other hand, there was no evidence that Mr
Mehemi had retained links with Algeria.
[92]
When examining the degree of family ties, the Court found that Mr Boujlifa had
his parents and eight brothers and sisters living in France, Mr El Boujaidi had
his parents and three brothers and sisters living in France, and Mr Mehemi had
his parents, four brothers and sisters living in France, as well as his wife
and three minor children who were born in France and had French nationality.
[94]
This element alone is no longer sufficient to outweigh the existence of
offences of a serious nature. See, for instance, Boughanemi v. France
(note 32), Chorfi v. Belgium (note 46) and Boujlifa v. France
(note 20) and compare with Beldjoudi v. France (note 18) and Mehemi
v. France (note 21).
[95]
For instances of strong family links, see, Berrehab v. the Netherlands (note
16), Beldjoudi v. France (note 18) and Mehemi v. France
(note 21) where all three applicants had married a national of the country in
question and in the case of Berrehab and of Mehemi, a child had been born of
the marriage. For instances of weak family links, see, Boujlifa v. France
(note 20), El Boujaidi v. France (note 22) and, Bouchelkia v.
France (note 19).
[97]
In Beldjoudi v. France (note 18) and Mehemi v. France (note 21),
the Court recognised the fact that the applicants were born in France as an important
factor. Note however that in both cases there were also strong family links in
France, and the serious nature of the offence was thereby compensated.
[100]
For instance, Mr Moustaquim had committed 147 offences but at a time when he
was a minor. Thus, the Court recognised the deportation measure to be
diproportionate. However, in Chorfi v. Belgium, the Court considered the
possession of drugs to be a sufficiently serious offence to justify
interference, so was the offence of rape with violence and theft in Bouchelkia
v. France. However, the rape offence was outweighed by the very special
circumstances of Mr Nasri who was born deaf and dumb.
[101]
Referring to its earlier cases, it is true that only very exceptional
circumstances could justify removal. Labayle, note 30, 987.
[103]
Sherlock, along with several dissenting judges, criticise the lack of a clear
position by the Court on the matter but recognise nevertheless that only few
cases have actually been decided by the Court on this issue. Sherlock, A.,
'Deportation of Aliens and Article 8 ECHR’, 23 European Law Review 1998,
70-73. As for Labayle, he questions the Court's recent inclination towards
realism at the price of sacrificing principles established in earlier cases.
Labayle, note 30,993.
[104]
Anderfuhren-Wayne, note 3, 366. For a brief survey of the Commission's approach
to the issue of interference and of justifiability, see, Hugo, note 3, 330-334.
[106]
See, Berrehab v. the Netherlands (note 16), Beldjoudi v. France
(note 18), Moustaquim v. Belgium (note 17) and, Chahal v. UK
(note 26).
[107]
E.g., Soering v. UK (note 25), Ahmed v. Austria (judgment
of 16 December 1996), Chahal v. UK (note 26), D. v. UK (note 33).
[109]
Both were cases where the applicant was a beneficiary of subsidiary protection
(i.e., residence permit on humanitarian grounds) seeking entry of a young
family member.
[114]
This would particularly be the case concerning displaced persons. This may less
be the case, in certain countries, regarding asylum seekers who have been
waiting several years for a decision on their application for refugee status
and who, as a result of such waiting, may be entitled to a residence permit on
humanitarian grounds on a discretionary basis. In the UK, for instance, an
asylum seeker may be eligible for settled status (‘exceptional leave to
remain’) after seven years of residency. The Refugee Council, 'The Bosnia
project 1992-1998: some basic information', London, 1998.
[115]
Conseil de l'Europe - Haut Commissariat des Nations Unies pour les réfugiés,
'la Convention européenne des droits de l'homme et la protection des réfugiés,
demandeurs d'asile et personnes déplacées', 5 Bull. dr. h. 1996, 68-70
By Hélène Lambert*
[Published in: International
Journal of Refugee Law, Vol. 11, No. 3 (1999), 427-450.]
.
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