Bog post by Dr Alan Desmond, University of Leicester
Introduction
Immigrants facing expulsion from Council of Europe member states sometimes seek to resist their removal by arguing that it would violate their right to respect for private and / or family life, as codified in Article 8 of the European Convention of Human Rights (ECHR). However, the interpretation and (non-)application of the concepts of family life and private life by the European Court of Human Rights (ECtHR) in cases concerning immigrants makes it almost impossible for them to successfully invoke Article 8 ECHR as a bar to expulsion. This is symptomatic of a wider approach taken by the Court in its migration case law, diagnosed by Dembour as ‘the Strasbourg reversal’. The Strasbourg reversal means that the Court, in its migration case law, gives pride of place to state sovereignty, with immigrants’ Convention rights taking a back seat to state powers of immigration control.
In this blog post I will briefly explain how the ECtHR’s application of Article 8 ECHR in its expulsion case law has shrunk the protection potential of Article 8 for immigrants, and why this is problematic. I will conclude by mapping a pathway for the Court to undo the Strasbourg reversal in its expulsion jurisprudence by deploying Article 8 in a way that is more immigrant-friendly and more consistent with its approach in its wider Article 8 case law.
Deleterious distinction: differential definition of family life in immigrant v non-immigrant cases
The ECtHR has held that whether or not there is ‘family life’ between individuals is essentially a question of fact depending upon the existence in practice of close personal ties (e.g. K. & T. v. Finland (2001)). Thus, in non-migration cases the Court has found that, at the very minimum, family life for the purposes of Article 8 extends beyond the parent(s) and minor child(ren) configuration to encompass ties between near relatives such as grandparents and grandchildren (e.g. Marckx v. Belgium (1979), Scozzari & Giunta v. Italy (2000)). When it comes to migration cases, however, the Court has been largely consistent in taking a restrictive view of the relationships that constitute family life for the purposes of benefiting from Article 8 protection.
This view consists in conceptualising the family for the purposes of Article 8 as the nuclear or core family, comprising parents and their dependent, minor children. When it comes to immigrant applicants, other relationships, such as those between adult siblings or between parents and adult children, may attract Article 8 protection but in principle relationships between adult immigrants do not enjoy such protection without ‘evidence of further elements of dependency involving more than normal emotional ties’ (e.g. Javeed v. The Netherlands (2001)).
This differential approach to the definition of non-citizens’ family life has never been explicitly justified by the Court, and yields outcomes that are as conceptually counterintuitive as they may be practically devastating for individual applicants and their families. The mechanistic approach to family life in migration cases is exemplified by Slivenko v. Latvia (2003), the first Article 8 expulsion ruling delivered by the Grand Chamber. The case concerned the removal from Latvia to Russia of Tatjana and Nikolay Slivenko and their Latvian-born daughter following restoration of Latvian independence in 1991, in accordance with a bilateral treaty that required Russian officers to leave Latvia with their families. The Grand Chamber found that the family’s ‘enforced migration’ (para 97) from Latvia did not interfere with their family life since they had been deported as a whole and could continue an effective family life in Russia. Tatjana’s links with her elderly parents who were living in Latvia could not be viewed through the lens of family life as they were adults who neither belonged to the core family nor had been shown to have been dependent members of the applicants’ family.
An equally perverse outcome was produced by the Court’s approach to immigrants’ family life in Senchishak v. Finland (2014). Marina Senchishak, a widowed Russian citizen paralysed on her right side, entered Finland in 2008 on a 30-day visa to join her daughter, a Finnish citizen resident in Finland since 1988. Marina’s request for a residence permit in Finland on the basis of family ties was refused in 2009, and her removal ordered. Mother and daughter had lived in different countries for 20 years, but Marina argued that during her five years in Finland she had had a close family relationship with her daughter and her family, and that in Russian culture grandparents were family members who needed protection, it being the adult children’s responsibility to take care of their parents.
The ECtHR, however, was not satisfied that Marina’s relationship with her daughter involved an additional element of dependence beyond the normal, emotional ties. Paramount importance seems to have been attached to the applicant’s irregular stay in Finland, which guided the Court in finding an absence of family life within the meaning of Article 8. Noting the 20-year putative interruption in the family life between the applicant and her daughter, the Court found that a stay of five years in Finland did not create a relationship that could amount to ‘family life’ within the meaning of Article 8. It found that even if Marina were dependent on outside help to cope with her daily life, ‘this does not mean that she is necessarily dependent on her daughter who lives in Finland, or that care in Finland is the only option’ because ‘there are both private and public care institutions in Russia, and it is also possible to hire external help’ (para 57).
Application in other cases of this approach would make it almost impossible to establish dependency. How often will it be the case that an applicant’s child is the only individual who can help a dependent adult parent ‘to cope with her daily life’ (ibid)? The logic-defying finding that cohabitation for five years of an ailing, elderly widowed mother with her adult daughter did not create a relationship sufficiently strong to constitute family life reveals the ease with which the ECtHR can make a finding of non-existence of family life. This renders a complaint under Article 8 inadmissible and relieves the Court of the need to engage in evaluating the relative merits of the claims made by the parties to the dispute: because family life is found not to exist, expulsion cannot be found to constitute an interference with it, and thus requires no justification under Article 8(2).
The Court’s invidious application of the concept of family to immigrant and non-immigrant applicants also opens it to the accusation that this strand of its case law falls foul of the non-discrimination provision in Article 14 of the Convention on two grounds. Firstly, on the ground that it disadvantages without justification immigrant applicants as distinct from non-immigrant applicants who seek vindication of their Article 8 rights and, secondly, on the ground that it discriminates in particular against immigrants whose social and cultural backgrounds mean that their understanding and practice of family life do not conform to the narrow conceptualisation of family life that prevails in the Court’s migration cases.
Private life as bar to expulsion?
Does the Court’s narrow definition of family life in migration cases matter in practice? Daniel Thym has argued that it does not ‘translate into a diminution of human rights protection’ since it is complemented by autonomous protection of private life which, in his view, provides a suitable lens for consideration of wider social relations beyond the nuclear family. It is certainly true that the Grand Chamber in Slivenko, following its counterintuitive finding that the Slivenkos’ ‘enforced migration’ from Latvia did not interfere with their right to respect for family life, went on to find that removal to Russia did ultimately infringe Article 8 by violating the right to respect for private life, characterised by the Grand Chamber as ‘the network of personal, social and economic relations that make up the private life of every human being’ (para 96). This was the first time the ECtHR brought the private life limb of Article 8 into play as a standalone bar to deportation, something it has repeated in a small number of subsequent cases including A.W. Khan v. UK (2010), A.A. v. UK (2011), and Ghadamian v. Switzerland (2023).
The deployment of private life as a bar to removal is, however, the exception rather than the rule. An inventory of the Court’s expulsion jurisprudence reveals a pronounced preference for examination of the family life limb and a general reluctance to engage substantively with the private life limb of Article 8. The reasons for this are not immediately clear. The Court only provides the oracular explanation that it depends on the circumstances of a particular case as to whether it is appropriate to focus on the family life rather than the private life aspect. The result, however, is clear: judgments which find that expulsion will not violate the right to respect for family, and which fail to then examine the expulsion under the private life limb of Article 8, as exemplified by cases like Üner v. The Netherlands (2006) and Senchishak (2014). A restrictive definition of family life, coupled with a routine failure to give substantive consideration to private life, means that expulsion will only seldom be found to engage and violate Article 8.
Revising the approach to family and private life in Article 8 expulsion cases
There are two complementary recalibrations that the ECtHR could adopt to foreground immigrants’ rights in its Article 8 expulsion case law. Both of the proposed recalibrations have been identified within the ranks of the Court itself in multiple separate opinions.
Firstly, when it comes to private life, the Court may wish to consider the opinion of Judge Wildhaber in Nasri v. France (1995) that invocation of the right to respect for family life without any reference to private life is ‘artificial’. Instead, it would be more realistic to look at ‘the whole social fabric which is important to the applicant, and the family is only part of the entire context, albeit an essential one’. This would see the Court take as its starting point an examination of the private life limb of Article 8 of which family life would, if present, constitute a key element. It would ensure meaningful engagement with both limbs of Article 8 in expulsion cases.
Secondly, the Court may wish to heed the calls by the likes of Judge Kovler in Slivenko and Judge Spielmann in Shevanova v. Latvia (2006) to adopt the broader definition of family life employed in much of its non-migration case law. In that case law (e.g. Marckx v Belgium (1979)) the Court has held that respect for family life obliges states to act in a manner calculated to allow ties between family members to develop normally. This recalibration would entail a shift of emphasis from states’ right to regulate immigrants’ movement and residence to the right of family members to enjoy each other’s company (e.g. Penchevi v. Bulgaria (2015)).
Conclusion
The dynamic potential of Article 8 and the Court’s openness to modifying earlier interpretations, coupled with its existing case law and the interpretive tools at its disposal, provide it with the capacity to move in a more pro-immigrant direction. Its toolbox contains all of the implements necessary to allow it to address the Strasbourg reversal in this discrete line of case law and to unlock the Convention’s protection potential for immigrants facing expulsion. In the absence of a move in this direction the Court should, at the very minimum, justify its restrictive approach to family life when it comes to immigrant applicants and explain its reluctance to substantively engage with the private life limb of Article 8 in expulsion cases where it finds no violation of the right to respect for family life.
More in-depth discussion of the questions raised in this blogpost is available in Alan Desmond, ‘The Private Life of Family Matters: Curtailing Human Rights Protection for Migrants under Article 8 of the ECHR?’ (2018) 29(1) European Journal of International Law 261.
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