The European Court of Human Rights: A Guardian of Minimum Standards in the Context of Immigration
| Date | 01 June 2016 |
| Author | Jukka Viljanen,Heta-Elena Heiskanen |
| DOI | 10.1177/016934411603400205 |
| Published date | 01 June 2016 |
| Subject Matter | Article |
Netherlands Q uarterly of Human Ri ghts, Vol. 34/2, 174–193, 2016.
174 © Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands.
THE EUROPEAN COURT OF HUMAN RIGHTS:
A GUARDIAN OF MINIMUM STANDARDS
IN THE CONTEXT OF IMMIGRATION
J V and H-E H*
Abstract
e innovative use of the general doct rines and the nature of the European Convention
on Human Rights as a living instrument have enabled the progressive protection of
immigrants. is research illustrates how the immigration case law of the European
Court of Human Rights has been evolving in the past years. e development of the
immigration jurisprudenc e of the ECtHR has connection to EU law and general concepts
of in tern ation al law, such a s the b est in teres t of ch ild. In add ition , the re cent c ase l aw on
posit ive obli gation s is cont ribut ing to di scuss ion over the rece ption c onditio ns of a sylum
seekers. e Strasbourg jurisprudence sets a minimum standard for the European
immigration policy that should be taken into account even in ex ceptional circumstances.
Keywords: European C ourt of Human Rig hts (ECtHR); family reu ni cation;
immigration law; i nternational trends; living instr ument; object and purpose
1. INTRODUC TION
Europe is facing unprecedented cha llenges on immigr ation. According to the UN
Refugee Agency (UNHCR) over 1 mil lion people had reached Europe across the
Mediterranean, mai nly to Greece and Italy, in 2015.1 During this period the number
of asylum claims in Europe has reached around 1,3 million.2 e European Council
spoke (18 and 19February 2 016) about the response to the migration crisis facing t he
European Union (EU), and stated that ‘the objec tive must be to rapidly stem the ows,
protect our external borders, reduce i llegal migr ation and safegua rd the integrity of
* Jukka Vilja nen (PhD) is Adjunct Professor of Hum an Rights Law and Uni versity Lecture r of Public
Law; Heta-Elena Heis kanen is Doctoral Stud ent, preparing her Doctora l esis on t he ECtHR and
environmenta l rights. Bot h authors work in the Scho ol of Management, Universit y of Tampere,
Finland. ey want to e xpress their g ratitude to the a nonymous revi ewers for their va luable
comments and sug gestions.
1 See U NHCR statist ics on Mediterra nean Sea Ar rivals by Cou ntry //data.unhcr.org/
mediterranea n/download.php?id=490> acc essed 30March 2016.
2 See Eu roStat Asylum a nd rst time a sylum applicants by c itizenship, age a nd sex Annual a ggregated
data (rounded) Last update: 18–03–2016 ec.europa.eu/eurostat/product?code=migr_asyapp
ctza&la nguage=en&mode =view> accessed 3 0March 2016.
e European Cou rt of Human Rights
Netherlands Q uarterly of Human Ri ghts, Vol. 34/2 (2016) 175
the Schengen area’.3 In this migration crisis debate the human rights considerations
are not su ciently on t he agenda.
Sovereign States have the primar y right to control the entry of non-nationals
into their territories.4 However, the immigration policy in Eu rope is not as state-
driven as it used to be. e European immigr ation policy is cu rrently a combination
of EU governance and the case law of European Court of Huma n Rights (ECtHR
or Strasbourg Court). e ECtHR has esta blished diverse imm igration case law.5
Immigration case law includes deportation, expul sion, the right to enter a country,
international protection, reception condit ions, integration, and family-related issues.
Reading of the cases shows t hat there are a number of controversial ndings. us,
there is need for clarif ying what are the common European standa rds for human
rights protection of the im migrants.
is paper develops a systematisation of imm igration jurisprudence of the
ECtHR in order to de ne the minimum standards for human rig hts protection. e
paper illustrates t hat currently the issue of immigrat ion is no longer an isolated area
with a speci c kind of interpretation a nd context dependency.6 Landmark judgments
such as M.S.S. v. Greece and Belgium and Hirsi Jamaa v. Italy have a European-
wide impact on immigration policy-making. e paper further re ects on how the
minimum sta ndards are connected to t he legal concepts such as the be st interest of
the child and integr ation. One of the key concepts to provide ways to go fur ther in
the eld of immigration policy a nd human rights is the positive obligations doctr ine
examined in relation to the case of Tara khe l v. Sw itz er land. Fur thermore, the paper
3 See Eu ropean Counc il Conclusions 18 and 19 February 2016 m.europa.eu/en/
meetings/europea n-council/2016/02/EUCO-C onclusions_pdf/> acc essed 18March 2016.
4 See Gül v Switzerland App no 23218/94 (ECHR, 19 Februar y 1996) para 38. For sovere ignty, Richard
Perruchoud, ‘State Sove reignty and Freedom of Moveme nt’ in Opeski n, Perruchoud, and Redpath-Cross
(eds) , Foun dations of Intern ational Migration L aw (Cambridge Universit y Press 2012) 123–125.
5 e problems related to rig hts under Art icle8 have b een under review i n several cases, star ting
from the case of B errehab v the Nether lands App no 10730/8 4 (ECHR , 21June 1988). It w as foll owed
by the cases of Moustaquim v Belgium App no 12313/86 (ECHR, 18February 1991); Be ldjoudi v
France App no 12083/86 (ECHR, 26March 1992); Gül v Switzerland (n. 4); Boughanemi v France
ECHR 1996-II; Ahmut v the Netherlan ds App no 21702/93 (ECHR, 28November 1996); Cili z v
the Netherlands App no 29192/95 (ECHR, 11July 2000). ese c ases can be divided into groups
where the Court fou nd a violation of Article 8 and where there was no violation. e Court found
a violation in the c ases of Berrehab, Moustaquim, Beldjoudi and Ciliz, while in t he cases of Gül,
Boughanemi and Ahmut, no violation was found. Since c ases like Boultif, Üner and Maslov, the
Court has est ablished criteria that apply to im migration cases in genera l. is continuu m can be
described as prov iding principles in t he context of immigrat ion cases and link ing them to a living
instrume nt approach rather tha n keeping the tr aditional sep aration betwe en immigrat ion cases and
other type s of human rights problems . See Boultif v Switzerland App no 57273/00 (ECHR, 2August
2001); Üner v the Netherlands App no 464 10/99 (ECH R, 18Oct ober 20 06); Masl ov v Austria App no
vSwitzerland App no 12020/09 (ECHR, 16April 2013). For recent literat ure, see Marie-Bénédicte
Dembour, When Humans Becom e Migrants: Study of the European C ourt of Human Rights with an
Inter-American Counterpoint (Oxford University Pre ss 2015).
6 Many s cholars and judges noted that th is led to an approach tainted w ith arbitrarines s. See eg the
dissenting opi nion of Judge Martens in t he case of Boughanemi v Fran ce (n. 5).
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