Between facts and norms: Testing compliance with Article 8 ECHR in immigration cases

Date01 June 2019
Published date01 June 2019
Between facts and norms:
Testing compliance with
Article 8 ECHR in
immigration cases
Mark Klaassen
Assistant Professor, Institute of Immigration Law, Leiden University, Leiden, the Netherlands
The European Court of Human Rights plays a subsidiary role in the protection of the rights and
freedoms set forth in the Convention. To enable national authorities to perform their primary
role, it is important that the Court offers sufficient guidance on the interpretation of the Con-
vention. It has already been argued that the case law of the Court on the right to respect for family
life in immigration cases, lacks consistency in terms of procedural and substantive protection. The
inconsistency in the case law is mostly the case in the admission and regularisation case law. This
manifests itself in specific issues including the determination of whether an interference has
occurred as well as the court’s determination of the best interests of the child. Consequently, the
case law difficult to apply by national authorities which leads to widely diverging practices by the
Contracting Parties. The objective of this article is to outline the differences and inconsistencies in
the different forms of immigration cases and the corresponding compliance tests of the Court. The
article aims to offer a solution that would enable both the Court and the Contracting Parties to
differentiate the level of protection that is offered by Article 8 in immigration cases, while providing
sufficient guidance to national decision-making authorities and judiciaries so that they can efficiently
and effectively exercise the primary role they play in the protection of the right to respect for
family life in immigration cases.
Immigration, family life, human rights, proportionality, best interests of the child
Corresponding author:
Mark Klaassen, Assistant Professor, Institute of Immigration Law, Leiden University, Steenschuur 25, 2311 ES, Leiden, the
Netherlands Quarterly of Human Rights
2019, Vol. 37(2) 157–177
ªThe Author(s) 2019
Article reuse guidelines:
DOI: 10.1177/0924051919844387
Considering the subsidiary role the European Court of Human Rights (‘the Court’ or
‘ECtHR’) plays in the protection of human rights in Europe, it is essential that the different
administrative and judicial bodies in the contracting parties have sufficient guidance in the
interpretation of the rights laid down in the European Convention on Human Rights (‘the
Convention’ or ‘ECHR’).
With respect to Article 8, the Court does not apply a c onsistent
approach in determining whether contracting parties have complied with the Convention.
contracting parties have a ‘certain’ margin of appreciation, but it is often unclear what the
precise boundaries of this margin are.
However, one aspect is similar in all immigration cases in which the Court tested whether the
contracting party complied with the right to respect for private and family life. The Court in each
and every case emphasises that as a matter of international law, States are free to determine which
foreign nationals are allowed to enter and reside, but are limited in this sovereign competence by
the Convention.
This has been characterised as the ‘statist assumption’, which the Court makes in
adjudicating immigration cases under Article 8 ECHR.
In immigration cases concerning the right
to respect for private and family life, States are granted a certain margin of appreciation, which
depends on the strength of the residence status of the applicant. Settled immigrants with a right of
residence enjoy a higher level of protection than foreign nationals seeking entry or requesting to
regularise their irregular migration status.
The differentiation in the level of protection granted under Article 8 ECHR is reflected in the
manner in which the Court tests whether the Contracting Party has complied with its obligations
under this provision.
In this article, the tests used by the Court are categorised as follows.
1. In the Preamble of Article 1, Protocol 15, the subsidiary role the Court plays in the protection of the rights set forth in the
Convention is made explicit. The newly included Preamble reads: ‘Affirming that the High Contracting Parties, in
accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined
in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the
supervisory jurisdiction of the European Court of Human Rights established by this Convention’. See also Mark
Klaassen, The Right to Family Unification: Between Migration Control and Human Rights (Meijers Instituut 2015),
available via
2. Thomas Spijkerboer, ‘Structural Instability: Strasbourg Case Law on Children’s Family Reunion’ (2009) 11 European
Journal of Migration and Law 271.
3. In her discussion of the scope of the margin of appreciation, Gerards places the formulation ‘certain margin of
appreciation’ in a middle category on the level of scrutiny applied by the Court, between a ‘narrow margin’ and a ‘wide
margin’, indicating a ‘type of intermediate scrutiny’. See Janneke Gerards, ‘The Margin of Appreciation Doctrine, the
Very Weighty Reasons Test and Grounds of Discrimination’ in Marco Balboni (ed.), The principle of discrimination and
the European Convention of Human Rights (Editoriale Scientifica 2018).
4. The origin of this formulation can be traced back to the seminal Abdulaziz ruling. See Abdulaziz, Cabales and Balk-
andali v United Kingdom (1985) 7 EHRR 471. See for an analysis also Marie-B´en´edicte Dembour, When Humans
Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint (OUP 2015).
5. Cathryn Costello, The Human Rights of Migrants and Refugees in European Law (OUP 2015) 12.
6. This is criticized by Thym, who argued in 2008 that it was expected that the Court would clarify the interaction between
the Convention and national and European immigration laws. See Daniel Thym, ‘Respect for Private and Family Life
under Article 8 ECHR in Immigration Cases: A Human Right to Regularize Illegal Stay?’ (2008) 57 International and
Comparative Law Quarterly 87.
7. See Klaassen (n 1) For an explanation of the differentiation used by the Court, Eva Hilbrink, Adjucating the Public
Interest in Immigration Law: A Systematic Analysis of Strasbourg and Luxembourg Case Law on Legal Restrictions to
Immigration and Free Movement (Vrij Universiteit Amsterdam 2017).
158 Netherlands Quarterly of Human Rights 37(2)

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