Few judgments have sparked more criticism than N. v. the United Kingdom. The high Article 3 threshold set in the case of a seriously ill woman expelled to Uganda where she died shortly after her return has been criticized both inside and outside the Court. Following what some considered a missed opportunity in S.J. v. Belgium last March, the Grand Chamber now has a renewed chance to revisit the N. approach in Paposhvili v. Belgium. In a third-party intervention in the case, the Human Rights Center at Ghent University invited the Grand Chamber to reconsider the unduly restrictive approach adopted in N. In this post, I highlight the main points we made in our intervention as well as some of the parties’ Article 3 oral arguments during last week’s hearing.
In sharing my experience with methodological issues during my Ph.D., I would like to focus on the aspects I considered essential when selecting the frameworks that informed my case law analysis. In what follows, I outline the main criteria I used to select some of these frameworks and then zoom in on the process I followed in making further selections from within one of my frameworks: critical discourse analysis.
By Lourdes Peroni
What role do discriminatory insults play when the Court considers a certain instance of ill treatment in the light of Article 3? The answer seems to depend on which case one looks at. The role is that of “an aggravating factor,” if one looks at the recent judgment in Identoba and Others v. Georgia. However, if one looks at another relatively recent judgment in a case involving similar issues, Karaahmed v. Bulgaria, the answer seems “none.” Continue reading
I am happy to share with the readers the recent publication of my chapter “On the Road to Substantive Equality: Due Process and Non-discrimination at San José,” written for the book When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint, by Marie-Bénédicte Dembour (Oxford University Press 2015). Continue reading
By Lourdes Peroni
Karaahmed v. Bulgaria, a case recently decided at Strasbourg, concerned incidents arising from a demonstration by followers of “Ataka,” a political party known for its views against Islam and its adherents. The place of the demonstration: in front of the Banya Bashi Mosque in Sofia. The time: during Friday prayers. The manner: carrying flags featuring slogans such as “Let’s get Bulgaria back;” shouting insults at the worshippers such as “Turkish stooges”, “filthy terrorists,” “scum” and “Your feet stink! That is why you wash them!;” pelting them with eggs and stones; cutting a Turkish fez with a pocket knife while saying “Can you hear me? We shall now show you what will happen to each one of you!” and setting fire to prayer rugs.
The Court declared the Article 3 complaint, either alone or in conjunction with Article 14, inadmissible but found a violation of Article 9. In this post, I offer some preliminary thoughts on the inability of the Article 9 analysis to make visible what the events were really about at their heart.
By Lourdes Peroni
At a time when family life takes increasingly diverse forms in Europe and elsewhere, the recent judgment in Senchishak v. Finland clings to the ideal of parents and minor children as the yardstick to determine the existence of family life at Strasbourg. The Court declared the complaint under Article 8 inadmissible, after finding that an elderly mother seeking to reunite with her adult daughter failed to prove that she was dependent on the latter. Senchishak reaffirms a problematic line of jurisprudence, which restricts the notion of family life to the “core” family, namely parents and minor children. This restrictive understanding of family life is especially pervasive in family reunion and expulsion cases. The Court’s approach in these cases does not only seem out of place in growingly diverse societies. This approach impoverishes the notion of family life with unequal implications for those whose family life does not match the parent/minor children standard. Continue reading
By Lourdes Peroni
Readers familiar with the Court’s case law on family life and immigration will know that applicants’ chances of success are slim if family life was formed at a time when those involved knew that the migration status of one of them was such that their family life would be precarious in the Contracting state. Where this is the case, the principle is that the expulsion of the non-national family member will amount to an Article 8 violation “only in exceptional circumstances” (Rodrigues da Silva and Hoogkamer v. the Netherlands, para. 39 and Nunez v. Norway, para. 70). The Court has been reluctant to find a violation where there are no “insurmountable obstacles” to enjoying family life elsewhere (Arvelo Aponte v. the Netherlands, para. 60 and Useinov v. the Netherlands, p. 9).
In the recent case of Jeunesse v. the Netherlands the Court’s Grand Chamber did find a violation of Article 8 despite the applicant’s awareness of her precarious residence status before starting her family life in the Netherlands and despite the absence of insurmountable obstacles for the family to settle in the applicant’s country of origin. So what was exceptional about the circumstances in Jeunesse? And what to make of the Court’s analysis of these exceptional circumstances? Might this analysis signal any shift or refinement in the Court’s approach to some issues in its immigration and family life jurisprudence? Continue reading