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
This post was written by Nadia Ismaili, Ph.D. researcher at the migration law section of the Free University Amsterdam (*)
On 25 March 2014 the second chamber of the European Court of Human Rights handed down its judgment in the case of Biao v. Denmark. The case concerned the refusal to grant family reunion in Denmark to the Ghanaian wife of a naturalized Danish national originally from Togo. The Court decided unanimously that there had been no violation of the right to family life (Article 8). By the smallest majority of four votes to three, the Court held that there had been no violation of the prohibition of discrimination (Article 14) in conjunction with Article 8. This post focuses only on the divided reasoning on the prohibition of discrimination.
This guest post was written by Georgios Milios*
On October 9 2013, Leonarda Dibrani, a 15-years old Roma girl, was arrested by the French police in front of her teachers and classmates and deported to Kosovo along with her parents and five siblings. Initially, it was argued that the family had left Kosovo some years ago seeking better opportunities but according to Leonarda’s father, the Kosovo story was a lie and the whole family had been living for many years in Italy where almost all of the children were born but had not managed to acquire the Italian nationality. Furthermore, the father argued that they moved to France in 2008 and sought asylum claiming that they all come from Kosovo. The ‘Kosovo lie’ did not work and the whole family was expelled on the grounds that they were residing illegally in France. Continue reading
This week, in a divided ruling, the Court rejected the case of Berisha v. Switzerland. By four votes to three, the Court held that the refusal of residence permits to the applicants’ three children – who were born in Kosovo and entered Switzerland illegally – did not violate the parents’ right to respect for family life. In this post, I discuss the Court’s analysis of the best interests of the children involved in the case and show how the analysis fails to live up to this principle.
It looks like freedom-of-religion season has arrived in Strasbourg. After leaving aside the “freedom to resign” doctrine in Eweida, the Court has just made another move towards greater recognition of the importance of freedom of religion. In Vojnity v. Hungary, the Court clearly recognizes religion as a “suspect” ground of differentiation. As a result – and just like distinctions based on race, sex and sexual orientation – states must give “very weighty reasons” if they wish to justify differences based on religion. In less than a month, the Court has thus put freedom of religion and non-discrimination on the basis of religion on firmer grounds in Strasbourg.
In its recent judgment in Fernández Martínez v. Spain, the European Court of Human Rights appears to have abandoned its tried and tested formula of ad hoc balancing between the collective dimension of freedom of religion and individual human rights, established in Obst v. Germany, Schüth v. Germany and Siebenhaar v. Germany. In Fernández Martínez,the Court accepted the Spanish courts’ categorical balancing to the benefit of church autonomy instead, thereby echoing the opinion of the United States Supreme Court on the ‘ministerial exception’ in Hosanna-Tabor.