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?
Facts and Judgment in Short
The applicant, a Surinamese woman, entered the Netherlands in 1997 on a tourist visa but did not return to Suriname when the visa expired forty-five days later. Instead, she stayed in the Netherlands and made numerous attempts to get a residence permit, all of them unsuccessfully. Meanwhile, Ms. Jeunesse married a Netherlands national of Surinamese origin (whom she had met and lived with before in Suriname) and had three children. Except for her, all family members have Netherlands nationality. To date, the applicant has been living in the Netherlands. The case concerns a refusal to allow her to reside in the Netherlands on the basis of her family life there.
Despite the applicant’s “many years of actual residence,” the Court considered that her case did not concern a “settled migrant” – the notion being used in its case law to refer to persons who have been granted formally a right of residence in the Contracting state (para. 104). The case, therefore, was not examined as one of interference with her right to respect for private/family life – the Netherlands had not withdrawn the applicant’s right of residence (para. 105). The case, instead, was viewed as an allegation of failure by the Netherlands to comply with a positive obligation (para. 105). The issue, the Court noted, was whether the Netherlands was under a duty to grant her a residence permit and thereby enable her to enjoy family life in the country (para. 105).
By fourteen votes to three, the Court found a violation of the applicant’s right to respect for family life. It ruled that, in view of the “particular circumstances of the case” – which were regarded as exceptional – it was “questionable whether general immigration policy considerations of themselves” could sufficiently justify denying the applicant residence in the Netherlands (para. 121). The Court concluded that a fair balance had not therefore been struck between the competing interests at stake, namely the interest of the applicant, her husband and their children in continuing their family life in the Netherlands, on the one hand, and the interest of the state in controlling immigration, on the other (paras. 121 and 122).
Comment: Quiet Shifts through the Exceptional Circumstances Analysis?
My first impression of the Court’s reasoning in Jeunesse is that much remains the same at the level of principles. The Court re-affirms its strict principles in the area (see especially paras. 106-109). For instance, usual emphasis is placed on states’ right to control the entry of non-nationals into their territories and their residence there (para. 100). And less usual emphasis is added on “the duty of aliens” to submit to immigration controls and procedures and to leave the territory of the Contracting state when so ordered, if they are denied entry or residence (para. 100). The Court also recalls that, where immigration is concerned, “Article 8 cannot be considered to impose on a State a general obligation to respect a married couple’s choice of country for their matrimonial residence or authorize family reunification on its territory” (para. 107). The Court itself makes it clear that it is confirming its principles:
The Court, whilst confirming the relevant principles set out above … finds that, on the basis of the above considerations … and viewing the relevant factors cumulatively, the circumstances of the applicant’s case must be regarded as exceptional (para. 122).
So the key to understand the finding of a violation in Jeunesse lies mostly in the Court’s assessment of what it deemed exceptional circumstances of the case. Briefly, these circumstances included the fact that all the applicant’s family members are Netherlands nationals and entitled to enjoy family life with each other in the Netherlands; that the applicant herself held Netherlands nationality at birth but then lost it not by her own choice but following Suriname’s independence; that the applicant has lived in the Netherlands for sixteen years and that the state has tolerated her presence for a considerable period of time; and that the applicant has been the primary caretaker of her children, all of whom have always lived in the Netherlands and have no directs links with Suriname (paras. 115-120).
If one looks at several of these circumstances separately, one may realize that they may not be so exceptional in light of the Court’s existing case law. That is to say, similar circumstances have also featured in other cases. Take the circumstance that all family members (save the applicant) have the nationality of the Contracting state. In another recent case, Adeishvili (Mazmishvili) v. Russia, the applicant’s wife and two daughters were Russian nationals but the Court did not attach particular weight to this factor (para. 82). The issue of state’s tolerance of an irregular stay also surfaces in several other cases. Think of Useinov v. the Netherlands, where the state appeared to have tolerated the applicant’s presence also for a long period. In this case, the Court simply noted that such tolerance did not mean that the applicant had been given any assurances that he would get a residence permit and that he could not therefore reasonably expect to continue his family life in the Netherlands (p. 9).
One way to understand the exceptional character of the circumstances in Jeunesse may be to look at them cumulatively (see para. 122 quoted above) rather than at each of them separately. More interestingly, one may ask whether the violation in Jeunesse is not just about the particular circumstances of the case as such but also about the way in which the Court actually assesses these circumstances. It might well be that the Court is just looking at some familiar facts differently – i.e. attaching more weight to applicants’ links in the Contracting state and assessing their irregular stay with some lenience under certain circumstances.
Indeed, the Court seems to attach significant weight to Ms. Jeunesse’s ties – which are deemed “strong” – in the Netherlands given the considerable length (over sixteen years) and features of her stay (no criminal record) and given the state’s attitude (tolerance of her presence during a lenghty period of time) (para. 116) . Moreover, the Court assesses the applicant’s attitude (failure to leave the country) not in insolation but in connection with the attitude of the state (tolerance for a lengthy period of time). The Court says:
Although she failed to comply with the obligation to leave the Netherlands, her presence was nevertheless tolerated for a considerable period of time by the Netherlands authorities, while she repeatedly submitted residence requests and awaited the outcome of appeals. The tolerance of her presence for such a lengthy period of time, during which for a large part it was open to the authorities to remove her, in effect enabled the applicant to establish and develop strong family, social and cultural ties in the Netherlands. The applicant’s address, where she has been living for the last fifteen years, has always been known to the Netherlands authorities (para. 116).
The Court then notes that there would be no insurmountable obstacles for the Jeunesse family to settle in Suriname – given the applicant’s and her husband’s common background and the relatively young age of their children (para. 117). However, it considers that the latter’s best interests would be best served “by not disrupting their present circumstances” (para. 119).
In a way, that the Court attaches significant weight to the best interests of the applicant’s children is not surprising. There are already instances in its case law showing the child’s best interests weighing significantly in the balance against the state’s interest in expelling their non-national parent (see e.g., Rodrigues da Silva and Hoogkamer v. the Netherlands and Nunez v. Norway). The Court has also paid attention to this aspect in Şen v. the Netherlands, para. 40 and Tuquabo-Tekle and Others v. the Netherlands, para. 47. In fact, that domestic authorities must take into account the best interests of the children in decisions concerning them is not news at Strasbourg (see e.g., Neulinger and Shuruk v. Switzerland, para. 135). Yet Jeunesse seems to give new impetus to an older principle by making clearer the weight that domestic authorities should give to this aspect and by refining what the obligation entails. The Court states:
Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight. Accordingly, national decision-making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it (para. 109).
In assessing the impact of the measure on the applicant’s children, the Court looked at the applicant’s primary role in taking care of the children (the father being absent from home on some evenings due to a shift work); the children’s deep roots in the Netherlands; and their lack of direct links with Suriname, a country where they have never been (para. 119). The Court noted that, in examining whether there would be insurmountable obstacles for the family to settle in Suriname, the domestic authorities had had “some regard” for the situation of the children (para. 120). For the Court, however, this was not enough. The Court was not convinced that the domestic authorities had assessed the evidence on the interests of the children in a way that met the standards required in such cases (para. 120). It thus concluded that they had failed to give sufficient weight to the best interests of the applicant’s children in the decision to refuse her request for a residence permit (para. 120).
It may be too early to tell what exactly to make of the Court’s analysis of the Jeunesse exceptional circumstances. Yet there is a sense in which Jeunesse looks at old issues with “new eyes.” The analysis of some of the Jeunesse exceptional circumstances may contain some shifts in the Court’s approach to certain issues in its immigration and family life case law. Though pinpointing what exactly these shifts may be all about is at times elusive, it appears that they concern the assessment of applicants’ attitude and ties in the Contracting state and the best interests of their children.
 Other circumstances in Jeunesse, however, appear more exceptional, in particular the fact that the applicant once held Netherlands nationality but then lost it not as a result of her choice (para. 115).
 Adeishvili, however, differs from Jeunesse in other facts, most importantly, in the fact that Mr. Adeishvili had a criminal record (para. 80). In fact, and unlike Jeunesse, what was at stake on the other side of the balance in Adeishvili was not immigration control but crime prevention (para. 84). The Court found no violation of Article 8.
 Of course, the links between the weight attached to circumstances such as this and the ultimate outcome of the case have to be understood in connection with the weight attached to other factual circumstances particular to each case.
 Compare for example with the Court’s reasoning in Useinov v. the Netherlands, where the applicant has also lived in the country for a considerable period of time and had no criminal record: “the Court considers that the present case discloses no exceptional circumstances. It observes in this context that the applicant first entered the Netherlands in 1992 at the age of 27. Even though he has now been living in that country for a considerable time, he must still have links with the FYR of Macedonia, where he presumably grew up and underwent his schooling” (p. 9).
 Although it is interesting to note that the best interests of Ms. Jeunesse’s children come to add to the already existing circumstances weighing on her side (compare with Nunez v. Norway, paras. 78-84, where the exceptional circumstances of the case were almost exclusively linked to the far-reaching impact of the measure [mother’s expulsion with a re-entry ban] on the children).