Is the assessment under Article 8 ECHR for migrants justifiable?
| Author | Václav Stehlík,Jennie Edlund |
| Published date | 01 February 2022 |
| Date | 01 February 2022 |
| DOI | http://doi.org/10.1177/1023263X211061435 |
| Subject Matter | Articles |
Is the assessment under Article
8 ECHR for migrants justifiable?
Jennie Edlund, LL.M. and
Assoc. Prof. JUDr Václav Stehlík, LL.M., PhD
Abstract
The paper analyses the protection granted under Article 8 of the European Convention of Human
Rights for different immigration cases. The way the European Court of Human Rights determines
compliance with Article 8 for settled migrants differs from the way the Court determines com-
pliance for foreign nationals seeking entry or requesting to regularize their irregular migration sta-
tus. The paper argues that the European Court of Human Rights application of different principles
when determining a States’positive and negative obligations is contradicting its own case law. It
also argues that the absence of justification grounds for the refusal of foreign nationals who are
seeking entry lacks legitimacy. By treating all immigration cases under Article 8(2) the paper sug-
gests that the differentiation between cases should be based on how a refusal of entry or an expul-
sion would impact on the family life. The paper also suggests that more consideration should be
given towards the insiders interests when balancing the individual rights against the state’s inter-
ests. These changes would lead to a more consistent and fair case law and generate a more con-
vergent practice by the states which will increase the precedent value of the Court’s judgements.
Keywords
Family life, immigration, Article 8, European Convention of Human Rights, family reunification,
human rights, European Court of Human Rights
1. Introduction
In each and every case concerning migration control the European Court of Human Rights (ECtHR)
emphasizes 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 European
Faculty of Law, Palacky University Olomouc, Tr. Listopadu 8, 771 11 Olomouc, Czech Republic
Corresponding author:
Jennie Edlund, LL.M., Faculty of Law, Palacky University Olomouc, Tr. Listopadu 8, 771 11 Olomouc, Czech Republic.
E-mail: jennie.m.edlund@gmail.com
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(1) 100–117
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X211061435
maastrichtjournal.sagepub.com
Convention of Human Rights (ECHR).
1
The Court’s principle of state sovereignty regarding migra-
tion control has become the starting point instead of one element amongst others when determining
compliance with Article 8 ECHR.
2
This is especially shown in cases concerning migrants who are
seeking entry to a state
3
or in cases where a migrant requesting to regularize their irregular migration
status in order to enjoy family life.
4
In admission cases the Court holds that the refusal of entry does
not constitute an interference with the right to respect for family life, but that instead it must be
ascertained whether the state is under a positive obligation to allow for the entry and residence
of a foreign national based on the right to respect for family life. This differs from how the
Court tests whether a state has a negative obligation not to expel a foreign national who is a
settled migrant
5
with a right of residence. These types of cases are labelled ‘expulsion cases’in
the paper. The Court has concluded that when it comes to positive obligations this is an area in
which the Contracting Parties 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.
6
Settled migrants with a right of residence, on the other hand,
concern an area in which the Contracting Parties enjoy a more narrow margin of appreciation in
determining state compliance, meaning that there is a greater demand placed on the casual relation
between measure and aim compared to cases concerning positive obligations where less demand
may be placed on the casual relation between measure and aim.
7
Therefore, settled migrants
with a right of residence enjoy a higher level of protection since the expulsion measure has to
achieve one of the aims listed under Article 8(2) ECHR.
8
The gap and differentiation in the level
of protection between immigration cases has been criticized among scholars claiming it is unfair.
9
This paper analyses the different assessments under Article 8 ECHR between settled migrants
with a right of residence and migrants seeking entry or requesting to regularize their irregular migra-
tion status. It argues that the Court is contradicting its own case law by not applying the same prin-
ciples in different migration cases. The paper also argues that the lack of justifying refusals and not
1. See, among many other authorities, ECtHR. Abdulaziz, Cabales and Balkandali v. the United Kingdom, Judgment of 28
May 1985, Application No. 9214/80; 9473/81;9474/81 para. 67; ECtHR, Boujlifa v. France, Judgment of 21 October
1997, 122/1996/741/940, para. 42.
2. There are some exceptions to this principle. See for instance ECtHR, Berrehab v. The Netherlands, Judgement of 21 June
1988, Application No. 138; ECtHR, Sen v. Netherlands, Judgement of 21 December 2001, Application No. 31465/96
and ECtHR, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, Judgement of 12 October 2006, Application No.
13178/03.
3. Cases of this type are labelled as ‘admission cases’in the paper.
4. Case of this type are labelled as ‘hybrid obligation cases’by Klaassen, in M. Klaassen, ‘Between Facts and Norms:
Testing Compliance with Article 8 ECHR in Immigration Cases’, 37(2) Netherlands Quarterly of Human Rights
(2019), p. 164, because they cannot be considered purely positive obligation cases as the applicant has already
entered and lives in the host state.
5. When using the term ‘settled foreign national’or ‘settled migrant’the authors are referring to foreign nationals with a
long-term lawful residence right.
6. ECtHR, Abdulaziz, Cabales and Balkandali v. the United Kingdom, para. 67.
7. The distinction between different types of migration cases will be explained more in section 4.B.
8. How the Court determines whether a state is under a negative obligation is explained in section 2.B.
9. See among others C. Costello, The Human Rights of Migrants and Refugees in European Law (Oxford Studies in
European Law, Oxford, 2016) and D. Thym, ‘Respect for Private and Family Life Under Article 8 ECHR in
Immigration Cases: A Human Right to Regularize Illegal Stay?’,57International and Comparative Law Quarterly
(2008), p. 87.
Edlund and Stehlík 101
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