September 18, 2020
By Mark Klaassen (assistant professor of immigration law at the Europa Institute of Leiden University)
To what extent can irregular migrants rely on the protection of Article 8 ECHR to regularize their irregular residence? The European Court of Human Rights (the Court) has dealt with this issue before, in different cases with various factual backgrounds. The starting point of the Court has always been – and remains to some extent – that only in exceptional circumstances the state is under an obligation to regularize the stay of an irregular migrant. In my view – which I expressed before in ‘Between facts and norms: Testing compliance with Article 8 ECHR in immigration cases’ – the test to determine whether such obligation exists is unclear and would benefit from clear guidance from the Court.
The Pormes v. Netherlands judgment is another example of a situation in which the unclear test leads to an untransparent balancing of interests. In this blog I will first discuss the facts of the case and the ruling of the Court. In my analysis, I will first focus on the test used to determine whether Article 8 ECHR has been violated. Then I will argue that the Court has not been consistent in using the factors in the balancing of interests that it has outlined in the present judgment and in its previous case law. Lastly, I will discuss the contribution of Pormes v. Netherlands to the body of existing case law on the regularisation of unlawful residence.
Facts of the case
The case concerns an Indonesian national born in 1987 who moved to the Netherlands with his father at the age of four, after the death of his Indonesian mother. However, his father had not been married to his mother. On that basis, the applicant did not acquire Dutch nationality a birth. At the age of four, the applicant starts living with his aunt and uncle, in whose care he remained after his father returned to Indonesia. The applicant’s father passed away in Indonesia in 1999. The applicant (allegedly) discovered that he was not a Dutch national in 2004, after he was not able to obtain a certificate from the municipal registry which he needed for his school. After that, the Court reports that the applicant experienced stress, started using drugs and dropped out of the training programme he was enrolled in.
On 1 August 2006, the applicant was convicted of indecent assault and four counts of attempted indecent assault. He was sentenced to 240 hours of community service, a twenty-two-hour training order and a six-month probatory prison sentence. On 27 June 2008, the applicant was convicted for another two counts of indecent assault and three counts of attempted indecent assault. The crimes of the applicant consisted of following young women on a bike, making them stop or fall and sexually assaulting them. The criminal sentence shows that his acts did not amount to rape, but does indicate that the physical integrity of the victims was severely affected, potentially causing long-term effects. The applicant was convicted to ten months imprisonment, of which five months probatory, and the execution of the six-month probatory sentence for which he was convicted before.
In between the applicant’s criminal convictions, he applied for a residence permit to stay in the Netherlands with his uncle and aunt. This application was rejected because the authorities deemed the applicant as a threat for public order. Even though he successfully appealed the refusal of a residence permit at the District Court, the Council of State ultimately upheld the rejection on 13 November 2013. According to the Council of State, the balancing exercise that was conducted complied with the requirements of Article 8 ECHR. The authorities could attach great weight to the offences committed by the applicant. Even though the applicant might have problems to adjust to life in Indonesia, the Council of State concludes that there is no objective impediment to enjoy family life with his Dutch foster parents in Indonesia and that he is of adult age and capable of managing by himself there as well. On 1 August 2016, the applicant left the Netherlands for Indonesia with the assistance of the IOM.
Judgment of the Court
In its judgment, the Court deems it not necessary to decide whether the applicant exercised family life in the Netherlands. At the time of the final domestic decision, the applicant was twenty-six years old and he did not permanently live with his foster-parents anymore. In line with earlier case law, the Court rules that the factors to be examined are the same regardless of whether private life or family life are engaged. The Court however mainly focuses on the applicant’s private life in the Netherlands.
The balancing of interests starts with the ‘statist presumption’ that the state is entitled to control the entry and residence of aliens. Then the Court explains the difference between settled migrants, for which “very serious reasons are required to justify expulsion”, and aliens seeking admission even though the alien has resided in the territory already for some time. The criteria which have been developed for cases of settled migrants (in Boultif, Üner and Maslov) “cannot be transposed automatically to the situation of an alien who has not been granted formally a right of residence.” In my view, the Court could easily have held that the same criteria apply but that different weight should be attached to those criteria in different circumstances.
Instead of discussing the criteria from the above cited case law, the Court continues with a discussion of the factors that should be taken into account in assessing whether a state is under a positive obligation to allow for residence. These factors are:
If the latter factor applies, only in exceptional circumstances the refusal of residence would lead to the finding of a violation of Article 8. Furthermore, the Court repeats its maxim from the Butt-judgment that “weighty immigration policy considerations militate in favour of identifying children with the conduct of their parents”, in order to avoid the situation that parents abuse the position of their children to benefit their own immigration status.
Applying this to the facts of the case, the Court concludes that it cannot be held against the applicant that he established his private life in the Netherlands even though he was aware of his precarious immigration status. He also cannot be identified with the conduct of his foster parents as these are Dutch nationals who cannot benefit from a change in the applicant’s immigration status. That being the case, the Court holds that the case is different from that of a settled migrant, but that it also cannot be held that it concerns a purely positive obligation in which a violation is only found in exceptional circumstances. Instead, the assessment of the different interests involved must take place from a neutral starting point. This is a new concept in the case law of the Court, indicating a shift in the level of protection offered by Article 8, as before it was assumed that regularisation of irregular residence is only possible in exceptional circumstances.
The Court concludes that the applicant has strong ties with the Netherlands and “not strong” ties with Indonesia. Would the applicant not have committed any crimes, considering that he cannot be reproached for the unlawful residence in the Netherlands, his interests to remain in the Netherlands would have prevailed in the balancing exercise. However, the applicant was repeatedly convicted for serious crimes. In that light, the Court deems that the interests of the state outweigh the interests of the applicant. The Court accepts that his relocation would have entailed a certain amount of hardship. But the Court finds the applicant to be a “healthy adult man” and it has not appeared that he was unable to manage himself in Indonesia. The Dutch authorities have therefore not overstepped their margin of appreciation.
Judges Ranzoni, joined by judge Ravarani, has added a dissenting opinion to the judgment. The dissenting judges conclude that the domestic authorities failed to carry out a thorough and fair balancing exercise, emphasizing that not all factors have been taken into account.
Towards a single test
It is unclear why the Court finds it problematic to assume an interference in each and every case involving the right of residence of a foreign national and apply the justification test of Article 8(2) ECHR accordingly. By developing clear guiding principles and identifying that the weight attached to each factor could differ depending on the type of immigration case concerned (settled migrant, first admission or regularisation of irregular residence), the Court could provide more guidance to the domestic administrations and judiciaries. It is often unclear which test applies and which factors should be taken into account, undermining legal certainty. The present case is an illustration of that. I believe that the Court could provide more procedural guidance without affecting the substantive level of protection by assuming an interference with the right to respect for private and family life in each case involving the termination or refusal of residence to a foreign national in which private and/or family life is established. This would be especially an improvement for cases involving the regularisation of irregular residence, which I have referred to as ‘hybrid cases’ before. This would not make it possible to predict the outcome of each case, as weighing of interests implies that different outcomes may be reached, but improves the applicability of the Article 8 ECHR test in domestic jurisdictions.
Missing factors in the fair balance test
In para. 56 and 57 of the present judgment, the Court outlines the different factors that should be taken into account in assessing whether a state is under a positive obligation to regularise irregular residence of a foreign national. These factors are listed above in bullet points. This overview of the relevant factors is not complete, as is indicated in the use of the words “such as” in the Court’s own formulation. As Article 8 ECHR needs to be applied in domestic jurisdictions, a clear overview of the applicable factors would be helpful. There are more factors which are identified in the case law of the Court that can play a role in the balancing of interests. I would add the following factors to the list:
Using guiding principles which should be considered in the balancing of interests is a good way to provide guidance for the application of Article 8 in the contracting parties. In case the Court does not follow my suggestion to just use one set of guiding principles in all immigration cases, the second-best option is to get a clear overview of the relevant benchmarks. The incomplete overview that is provided for in the present judgment is a missed opportunity in this regard.
Neutral starting point
Instead of ruling that the present case should be treated as a clear negative or positive obligation case, the Court establishes that a neutral starting point should be adopted for the balancing of interests. In my view, a neutral starting point should be adopted in all immigration cases. The Court often holds that it is not necessary to make a sharp distinction between negative and positive obligations as the applicable principles are the same. This judgment clearly illustrates that the immigration status of the applicant to a large extent determines the substantive level of protection that is offered by Article 8. It is justified that the immigration status of the applicant can play a role in the determination of whether an immigration decision is in compliance with Article 8. But it is peculiar that the immigration status of the applicant determines the starting point of the balancing of interests. The very purpose of the balancing exercise is that a fair balance is found between the competing interests involved. After this judgment, it seems that there are three different compliance tests:
The differentiation in starting points for the balancing test only adds to the confusion on which test is applicable. Furthermore, it is unclear what a neutral starting point actually entails. In the present case, in my opinion the balancing of interest was not approached from a neutral starting point. By finding no violation, the Court accepts the result of the balancing exercise that was conducted domestically. It surprises me that the Court first outlines that a neutral starting point should be adopted and then comes to the conclusion that the result of the balancing exercise stayed within the margin of appreciation. If the domestic test did not comply with the Court’s standard, at least a procedural violation should have been found.
Furthermore, the discussion of the different factors by the Court itself sheds doubt on whether a neutral starting point was adopted. Some relevant factors do not play a role in the balancing of interests by the Court. Firstly, the fact that the applicant did not reoffend after his criminal conviction in 2008 is mentioned by the Court, but it seems that no weight is attached to this factor. Secondly, the fact that the residence of the applicant was tolerated for a long period, even though the Dutch authorities were well-aware of the unlawful character of the residence of the applicant in the Netherlands, is not considered by the Court at all. This was one of the decisive elements in the similar Jeunesse-judgment of the Grand Chamber of the Court. Thirdly, the Court does not pay any attention to the nationality of the applicant. The only reason why the applicant does not have the Dutch nationality, is that his parents were not married when he was born. Would his parents have been married, then the applicant would have acquired Dutch nationality at birth. In that scenario, the right of residence of the applicant would not have been jeopardised by his criminal convictions. In the domestic proceedings on the acquisition of the Dutch nationality at birth – which ultimately was rejected by the domestic court – the applicant is recognised as his father’s child, as this is mentioned on his birth certificate. Still, the Court refers to the applicant’s father as his ‘presumed father’ in the statement of facts. The fact that these three factors were not considered in the discussion of the balancing test indicate to me that the Court itself failed to adopt a neutral perspective in this case.
The right to regularise irregular stay
Despite these side notes, the present judgment is a welcome addition to the body of case law concerning the regularisation of unlawful residence. For the first time, the Court wholeheartedly accepts that in a situation of long irregular residence, without additional factors like criminal convictions, Article 8 ECHR can be used to regularise irregular residence. The fact that the Court was willing to answer the hypothetical case that the applicant was not criminally convicted makes it clear that the protection of the right of residence of irregular migrants falls within the scope of the right to respect for private and family life. The neutral perspective that is to be adopted – and to be further developed in subsequent case law – means that states no longer can claim that Article 8 only calls for the regularisation of irregular residence in exceptional circumstances.
One aspect of the case law that deserves reconsideration is the identification of children with the culpable conduct of their parents. The present ruling repeats the Court’s approach adopted in Butt that the risk that parents will exploit the position of the child is reason to attribute the parent’s conduct to the child. I understand the sentiment that parents should not be ‘rewarded’ for their irregular residence in the host state. However, I find it problematic that children are blamed for that. Children are independent rights holders and the protection of their human rights should not be made dependent on their parents. This is at odds with Article 2(2) CRC, which prohibits the discrimination of the child on the basis of the status of the parents. Also, within the context of Article 14 ECHR, it is problematic to treat children differently based on the immigration status of their parents. Children do not choose to become an irregular migrant: it is the consequence of the actions of the parents and the refusal of the state to allow for lawful residence. Furthermore, focussing on the possible exploitation of the right of residence by the parent could incentivise irregular migrants to break the ties with the family members who can be blamed for the irregular residence, which could have the effect of rupturing families. In the background article ‘My mother was ordered to leave the Netherlands. I cried non-stop‘ that appeared in the Guardian, Du Saar reports on a case in which the fact that a young adult broke the ties with her parents became the decisive factor in the applicant’s regularisation of her unlawful residence. This is the consequence of the Dutch policy (page 32) in which children are identified with the conduct of their parents in the Article 8-test. In my opinion, the case law of the Court on the right to respect for family life should not lead to a separation of families. This is exactly the effect the case law currently has in the Dutch policy on the regularisation of unlawful residence based on Article 8.
For states, the expanded reach of Article 8 ECHR presents an opportunity to treat irregular migration with less convulsion. Irregular migrants who live already for a long time in the host state have a lot of potential to contribute to society.