June 05, 2026
By Jessica Schultz and Jens Vedsted-Hansen
Last week, the Committee of Ministers adopted the anticipated Chişinău Declaration, outlining political guidance to the ECtHR in cases related to migration control. A target of discontent is the application of Article 8, which may block states from deporting or denying residence to migrants with strong personal ties to the country. The Declaration was preceded by initiatives convened by 9 State Parties to the ECHR (the Open Letter of May 2025) and 27 Council of Europe member states (Joint Statement of December 2025) which called for wider leeway to deport migrants deemed to pose a risk to public order and/or national security.
The ECtHR judgment in V.N. and Others v. Sweden is timely in this regard. The case concerns the Swedish government’s refusal to grant temporary residence to a dying woman’s husband, citing his previous criminal record in Azerbaijan as a threat to public order and security in Sweden. The Court’s majority ruling, characterised by almost blanket acceptance of the Swedish government’s assessment, seems illustrative of how (at least some) States Parties to the ECHR would like the Court to approach migration-related cases in general under Article 8.
The applicants are an Azerbaijani family which includes V.N. and his wife and their two children. The family entered Sweden in May 2013, initially seeking asylum on the basis that their daughter, a minor at the time, needed heart surgery and a pacemaker replacement, which was performed in Sweden in October 2013.
Their asylum request was rejected in 2014 and again on appeal in 2015. Rather than comply with deportation orders, the family largely remained in Sweden illegally. V.N. briefly returned to Azerbaijan in 2016–2017 before coming back to Sweden.
The deportation orders became statute-barred in April 2019, allowing the family to reapply for asylum. In early 2020, V.N.’s wife was diagnosed with cervical cancer. In December 2021, because her cancer drug was unavailable in Azerbaijan, V.N.’s wife and children were granted temporary residence permits. V.N. was refused a residence permit on the basis that he had confessed to committing serious crimes while working for a private security firm in Azerbaijan between 2010 and 2013, including torture, kidnapping, and extortion. Because of these crimes, he was considered by Swedish authorities to be a threat to public order and security in Sweden.
By late 2023, V.N.’s wife’s cancer had become terminal, with medical certificates indicating a short life expectancy. When Swedish authorities attempted to enforce V.N.’s deportation in November and December 2023, he argued this would separate him from his dying wife and dependent daughter. The ECtHR granted an interim measure staying his deportation on 7 December 2023.
The Court accepts the Swedish government’s assessment that the risk posed by V.N. outweighs the effects that the denial of residence has on his rights as well as those of his wife and their minor daughter. Referring to its judgment in M.A. v Denmark involving restrictions on the right to family reunification, the Court broadly invokes the wide margin of appreciation granted to states in these matters. The Court does not require the state to assess whether past crimes really pose a current threat in Sweden. Nor does it review key factors of the present case relevant to the proportionality assessment required under Article 8, including the strength of family attachments in Sweden, the limited duration of the requested residence permit or the best interests of the child.
Thus, the Court signals not only a strong deference regarding the aim which may justify interference in Article 8 or the absence of positive obligations under this provision, but also to the criteria which the state deems relevant when assessing whether a fair balance is reached. These distinct elements of a proportionality analysis collapse into an inchoate, unstructured assessment, reflecting only nominal engagement with the Court’s previous case law. By failing to provide a more structured review, the Court’s majority missed an opportunity to show how a state’s legitimate concerns could be accommodated in a meaningful way without completely devaluing the Court’s own oversight function.
As mentioned above, the majority of the Court concluded that the Swedish authorities had struck a fair balance under Article 8. Judge Kučs was unconvinced. Unlike previous cases under Article 8, he pointed out that this case was not about a right to asylum or an ordinary residence permit. Instead, it was about the right to reside briefly in Sweden as a family while V.N.’s wife was dying (para. 4). He further argued that the Court’s established criteria for balancing state and individual interests in cases involving criminality (eg. Üner v. the Netherlands) had not been sufficiently assessed by the domestic authorities. These included the time that elapsed since the offences were committed and the applicant’s conduct in the intervening period, as well as the applicant’s family situation. In Kučs’ view, factors like the length of the marriage and the short duration of the residence permit required should also be considered. Drawing on Boultif v. Switzerland, he argued that the Court’s case-law rejects ‘irrebuttable presumptions of dangerousness based solely on past offences’ (para. 11). Instead, it requires an individualised assessment of current circumstances. Blanket deference to states may ‘erode the established standards’ of the Court as well as the applicants’ trust in it (para. 13).
The V.N. case reflects recent developments in migration-related Article 8 jurisprudence, in which the Court’s case-specific analysis has been replaced by a broad acceptance of generalized stated interests, including migration numbers (M.A. v. Denmark), respect for immigration law (Alleleh and others v. Norway) and, as in this judgment, vague and broadly defined security threats. In theory, the doctrine of proportionality requires that an interference with a qualified right like Article 8 will only be justified if it responds to a pressing social need and the interference itself is reasonably balanced against the state’s legitimate aim. Where public safety is concerned, this requires considering the severity of the crime or legal infraction, the risk of reoffending and the effects on society and the individuals concerned.
In the case of V.N., there is no finding that that his temporary residence would cause or increase risk to Swedish society based on his previous criminal acts in Azerbaijan. Even though an alternative rationale – the state’s economic wellbeing – is mentioned by the Court in a somewhat blanket reference to immigration control (para. 86, restated in para. 98), it fails to engage properly with whether refusing V.N. a limited right to remain is proportionate, given his past refusal to comply with deportation orders and, implicitly, the already significant resources spent on the family’s healthcare.
If considerations related to the country’s economic wellbeing had been granted meaningful weight, it would have been open to the majority to declare, in line with the view of the dissenting Judge, the application inadmissible in its entirety due to the Swedish government’s compliance with the interim measure granted by the Court. In combination with the temporary residence permits issued to V.N.’s wife and two children, this had in fact allowed V.N. to stay together with his wife and children during the wife’s terminal illness.
Instead, the majority focused primarily on V.N., giving insufficient weight to the deceased wife’s interests despite confirming the children’s legitimate interest in bringing the application on her behalf (para. 59). With regard to the minor daughter, moreover, the Court creates uncertainty about the role of children’s rights by noting merely that she was ‘almost adult’ (para. 90).
The majority’s reasoning further raises questions about the evidentiary standard required in expulsion cases. On the one hand, the weight given to V.N.’s criminal past in his home country – which in the majority’s view was decisive for Swedish authorities’ decision (para. 94) – has a solid basis in his own explanations during four interviews with the authorities. On the other hand, the impact of ‘information indicating that [V.N.] was withholding his passport and had submitted falsified documents’ was unspecified, leaving doubts about the standard of evidence for such conduct to be taken into account and endorsed by the Court.
Although the Chişinău Declaration was adopted almost three months after the ECtHR judgment in V.N., this Declaration and the political developments leading to its adoption provide an important illustration of the dilemmas that are exposed by the majority ruling and the dissenting opinion. While certain statements concerning Article 3 in the Declaration appear ambiguous, the Declaration does not suggest any substantive changes of the application of Article 8. Rather, it can be seen as a logical extension of the 2018 Copenhagen Declaration which aimed at emphasising and furthering the Court’s practice on the margin of appreciation and largely succeeded in doing so.
The Chişinău Declaration ‘welcomes’ the ‘continuing further development of the principle of subsidiarity and the doctrine of the margin of appreciation by the Court’ (para. 4). While this implies business as usual, other parts of the Declaration may be perceived to suggest that the nature of a state’s public safety and national security interests, as well as the weight to be attributed to them, should be shielded from substantive review by the Court (paras. 31-32). In the wider political context the Declaration may justify or even amplify an already problematic development in which the measures interfering with Article 8 rights are assumed rather than proven to further the aim invoked by states as legitimate. While a more structured review might have resulted in the same outcome for V.N. and his family, the failure to conduct one produces legal uncertainty which serves neither states nor applicants well.
Meanwhile, the prospect of a political declaration that materialised in Chişinău on 15 May 2026 seems to have already influenced on-the-ground practice by emboldening states to propose further limits on Article 8 obligations (as described in Denmark here and in the UK here). In these policy processes, the ECtHR judgment in V.N. combined with the Declaration risk opening for the deportation of long-term residents with strong family and private life ties to the state, based on ‘information indicating’ that they might have done something deemed to threaten public order or national security. Against that backdrop, clarification of evidentiary standards concerning the state’s interest would be welcomed as an element of the Court’s further development of the principle of subsidiarity.
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