August 01, 2013
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.
The applicants are the parents of four children. Three of them – R., L. and B. – were born in Kosovo in 1994, 1996 and 2003, respectively. The fourth child was born in Switzerland in 2010. The father has now been living in Switzerland for more than fifteen years and the mother for almost six years. Both hold permanent residence permits. Their three older children have lived illegally in Switzerland for more than three years.
In fact, the father arrived in Switzerland back in 1997 and was initially granted a temporary residence permit. He married a Swiss national and later on received a permanent residence permit. The marriage ended up in divorce. In 2007, he married his current wife – whom he had known since 1993 and with whom he had had the three children in Kosovo. His wife moved to Switzerland and got a residence permit on the ground of family reunification. Relying on the same ground, the applicants unsuccessfully applied for residence permits for the three children, R., L. and B.
Following the rejection of their application, the parents brought their three children to Switzerland clandestinely and later on informed the Migration Office that they had been living there illegally. They applied again for residence permits. The request was dismissed for several reasons. In particular, the Swiss authorities considered that the applicants had not only initially concealed the existence of their three children but they had also brought them to Switzerland illegally. The children were ordered to leave the country.
The existence of family life between the parents and their two minor children was not disputed. The government, however, contested the existence of family life with the oldest son, who, by now, has reached the age of majority. The government’s argument was based on the Court’s well-known principle applied mostly in entry and expulsion cases that the relationship between parents and adult children do not fall within the scope of Article 8 unless additional factors of dependence other than normal emotional ties are established. Slivenko v. Latvia is probably the case that best epitomizes the Court’s restrictive approach: the limitation of “family life” to the “core” family (namely, parents and minor children).
I have critiqued this narrow construction of family life for its inegalitarian character elsewhere (see my blog post in A.A. v. the United Kingdom here and an article I have written on the issue here). This construction privileges and “normalizes” a certain form of family life (nuclear) while disadvantaging others implicitly deemed “deviant.” The Court has somehow relaxed the approach in several cases concerning the deportation of settled non-nationals by accepting the existence of family life between parents and young adult children who have not yet founded a family of their own (see e.g., Maslov v. Austria).
In Berisha, the Court gets around the issue by leaving it “open”. This approach, though not ideal because of its lack of clarity, at least leaves room for discussion in the next stage of the elements arising from the type of relationship like the one the applicants have with their adult son.
The Best Interests of the Child, Really?
Before moving on to the analysis of whether a fair balance was struck between the applicants’ interest in developing a family life in Switzerland and the State’s interest in controlling immigration, the Court reiterates the principle that, in all decisions concerning children, their best interests must be paramount. In family reunification cases, this means that “the Court pays particular attention to the circumstances of the minor children concerned, especially their age, their situation in their country of origin and the extent to which they are dependent on their parents” (paragraph 51).
The Court examines the situation of the three Berisha children in the following terms:
60. … despite the applicants’ contentions, they must still have solid social and linguistic ties to their home country, where they grew up and went to school for many years. Although the children are now also well integrated in Switzerland, the Court is of the view that their period of stay in the respondent State is not long enough for them to have completely lost their ties with their country of origin. With regard to the fact that their grandmother looked after them for more than two years and is, after all, still living there now, it must also be assumed that they have strong family ties to Kosovo. Furthermore, the applicants have not disputed that L.’s health has in fact improved to the extent that it would not be a hindrance for her to return to her home country, and, with regard to the alleged financial dependence of R. on the applicants, the Court cannot see why he, as well as his sister, could not be supported at a distance, especially when it is considered that they are now 19 and 17 years old respectively. Lastly, with particular regard to the youngest of the three children, B., the Court notes that the applicants are not prevented from travelling – or even staying – with her in Kosovo in order to ensure that she is provided with the necessary care and education so that her best interests as a child are safeguarded.
What is surprisingly absent in the Court’s reasoning is an analysis of the particular circumstances of the children in Switzerland. Apart from the in passing comment that they are now “well integrated” – without specifying what exactly this means – the Court says no word on the children’s lives there. I find this questionable from the perspective of the child’s best interests, especially when considering that the three children have lived in Switzerland for over three years and that two of them were enrolled in school.
The majority’s silence on these issues becomes even more puzzling when contrasted with the dissenting opinion. The dissenters include several elements of the children’s particular circumstances that any serious “child’s best interests” approach could hardly miss: (i) the youngest daughter B – seven years old at the time of the application for residence permit – arrived in Switzerland at a very early age; (ii) “from the school certificates submitted it appears that she has integrated successfully and made remarkable progress in those three years” and (iii) her teacher “expressed incomprehension regarding the proposed expulsion, stating that it would be against B.’s best interests” (see paragraph 4).
For the dissenters, “her return would therefore inevitably lead to a significant uprooting and major difficulties, which would be contrary to her best interests as a child” (paragraph 4). For the majority, bizarrely, the parents’ travelling to Kosovo would be enough to ensure that her best interests as a child are safeguarded (see quote above). True, the majority also mentions that the parents can stay there with their children. The question is whether this option is actually realistic considering the parents’ job situation and the fact that they have a fourth child born in 2010.
As for the situation of the two oldest siblings, R. and L., the dissenting opinion also reveals several important elements mostly absent in the majority’s examination.: (i) the fact that “they have now lived in Switzerland for more than three years and that they too are apparently well integrated” and, most notably, (ii) the fact that L. “is very well integrated in her Swiss school and that her high marks were such that she was expected to enter high school the following school year” (paragraph 5). Moreover, what about the age of the two oldest siblings, R. and L., and their dependence on the parents at the time of the application for residence permits? I agree with the dissenters when they say: Who can in reality prove the thesis relied on by the Swiss authorities in this case, to the effect that a child of fifteen or fourteen has less need of the parents’ care than a child of seven? (paragraph 5)
To conclude, in failing to take full account of the repercussions that the expulsion would have on the applicants’ children – in particular, on two of the children’s education – the majority does not live up to the announced principle of the child’s best interests. Some may argue that the children’s stay in Switzerland was anyway illegal. However, and as the dissenters rightly hold, “children cannot be held responsible or suffer for their parents’ incorrect or even illegal behavior.”