CYIL vol. 12 (2021)

Jennie Edlund – Václav Stehlík CYIL 12 (2021) 2. The ECtHR application of Article 8 of the ECHR in immigration cases In all immigration cases concerning the application of Article 8 of the ECHR, the ECtHR stresses that a Member State is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there but is limited by its obligations to the ECHR. 3 The Member State has to strike a fair balance between the personal interests of the immigrant on the one hand and the public interest in ensuring an effective implementation of immigration control on the other. In order for the ECtHR to determine whether a Member State has complied with Article 8 of the ECHR it has to decide if the Member State has a positive obligation to admit or a negative obligation not to expel a foreign national. However, the margin of appreciation doctrine as developed by the ECtHR allows Member States to determine whether or not a particular limitation is proportionate to the legitimate aim pursued in the specific circumstances of a case, and thus whether or not a particular limitation amounts to a violation or not. 4 Even though Article 8 of the ECHR has permeated the area of immigration policy critics claim that the case-law has shown a number of extremely problematic developments. 5 Some academic observers argue its application remains very much state-biased, with a marginal impact on sovereign discretion. 6 Cases often turn on distinguishing facts rather than principles and the multi-factor approach produces much uncertainty. 7 Other academics find that this uncertainty reflects a wider uncertainty about the role of the ECtHR vis-a-vis national jurisdictions of the Member States. 8 In order to determine whether there has been a violation of Article 8 of the ECHR the Court uses different compliance tests for different immigration cases. The Court is not distinguishing between positive and negative obligations under Article 8 of the ECHR, in both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole; and in both contexts the state enjoys a certain margin of appreciation. 9 The justification test laid down in Article 8(2) of the ECHR provides for a detailed test with different concrete steps to be followed. It has to be determined whether there is in fact family life, 10 whether there is an interference with the right to respect for family life, 11 and whether the interference with the right to respect 3 See, among many other authorities, ECtHR Abdulaziz, Cabales and Balkandali v. the United Kingdom , judgment of 28 May 1985, Application No. 9214/80; 9473/81;9474/81 para. 67; ECtHR Boujlifa v. France , judgment of 21 October 1997, 122/1996/741/940, para. 42. 4 Henrard, Kristin, (2012) A Critical Analysis of the Margin of Appreciation Doctrine of the ECtHR, with Special Attention to Rights of a Traditional Way of Life and a Healthy Environment: A Call for an Alternative Model of International Supervision, The Yearbook of Polar Law IV : pp. 365–413. 5 Draghici, Carmen, (2017) The Legitimacy of Family Rights in Strasbourg Case-law ‘Living Instrument’ or Extinguishing Sovereignty? Hart Publishing, Oxford and Portland, Oregon, p. 387. 6 Ibid, p. 387. 7 Costello, Cathryn The Human Rights of Migrants and Refugees in European Law , Oxford Studies in European Law, Oxford University Press, 2016, p. 128. 8 Thym, Daniel, (2008) Respect for private and family life under Article 8 of the ECHR in Immigration cases: Human Right to regularize illegal stay? International and Comparative Law Quarterly ; 57, pp. 87–112. 9 See ECtHR Gul v. Switzerland , Judgement of 29 February 1996, Application No. 23218/94, para 38. 10 See for instance ECtHR Al-Nashif v. Bulgaria , Judgement of 20 September 2002, Application No. 50963/99, para 112. 11 See for instance ECtHR Boultif v. Switzerland , Judgement of 2 August 2011, Application No. 54273/00, para 37.

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