The European Court of Human Rights and the Right of Refugees and Other Persons in Need of Protection to Family Reunion
Posted: 28 Jun 2000 Last revised: 13 Apr 2021
Article 8 of the European Convention on Human Rights does not provide an absolute right for individuals. Equally, it imposes certain obligations on states. It follows that 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. To this end, the Court applies certain general principles but its approach in respect of article 8 is surprising for its lack of any specific criteria.
The Court distinguishes 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. In cases of entry, the Court's approach to the question whether it is reasonable to expect aliens to develop family life elsewhere is particularly restrictive, i.e., the obstacle must amount to an article 3 violation. This is because it proceeds to balance the applicant's right against the state's interest at the early stage of establishing an interference under article 8(1). As a result, no interference has yet been found by the Court in such cases. In cases of removal, on the other hand, the Court will usually balance the individual's rights against the community's interests at the later stage of considering whether or not the interfering measure was 'necessary in a democratic society' under article 8(2). Recent cases suggest that the Court is now scrutinising more closely the seriousness of offences and looking predominantly at elements of family life. This being the case, in situations where a refugee or a person in need of protection has committed serious offences and can show no strong family ties in the country of residence, s/he may only be protected against removal on the ground of article 3. 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.
Keywords: Asylum, ECHR, Article 8, Family life, Private life
JEL Classification: K33
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