CYIL vol. 12 (2021)
CYIL 12 (2021) The Influence of EU Law in ECtHR’s Case-law on Family Migration for family life is in accordance with the law. 12 For an interference to be justified, it must have a legitimate aim. Within the text of Article 8(2), five legitimate aims are listed. The interference should be ‘in the interests of national security, public safety or the economic wellbeing of the country’, made ‘for the prevention of disorder or crime’ must be necessary for ‘the protection of health or morals’, or should be necessary ‘for the protection of the rights and freedoms of others.’ This list is exhaustive. Finally, the interference should be necessary in a democratic society. According to the case-law, 13 “necessary in a democratic society” means that there is a “pressing social need” that justifies the interference with the protected right and that the interfering measure is proportionate to the aim responding to that need. In other words, in order for the Court to decide whether there is a violation of Article 8, it has to apply a proportionality test and strike a fair balance between the interests of the community and, in particular, those mentioned in Article 8(2) and the interest of the individual that is the right to respect for his or her ‘family life’. 14 According to the case-law of the ECtHR there must always be a proportionate relationship between the aim pursued by the interference and the Convention’s right at stake. 15 However, when analysing the application of the test of “necessity in a democratic society” by the ECtHR, a non-transparent use of terminology is revealed and there is a tendency to confuse and mix distinct elements of judicial review. 16 It’s been criticized that the Court’s use of the necessary test is too vague and general and that the balancing test which is often used by the Court is complex, subjective and not transparent. 17 By making an “all things considered” assessment of the situation, which is often used, the Court avoids clearly analysing the interference with the right and the state’s justification for such an interference under Article 8(2). This is a problem since the national authorities may only want to mirror the Court’s interpretative approach if the Court’s reasoning is clear and consistent. Another problem is that the Court seems to consider migration control as a social pressing need in itself and doesn’t require the states to articulate the aim of its actions clearly, which weakens the proportionality assessment. 18 The state’s interest in migration control infuses the Court’s approach and it is assumed that the refusal of entry and removal in themselves pursue legitimate aims which makes the case-law unstable. 19 This is especially shown in admission cases. Even though a fair balance has to be struck between the competing interests of the 12 See ECtHR Madah and others v. Bulgaria , Judgement of 10 May 2012, Application No. 45237/08, paras 95–105. 13 See among others ECtHR Nasri v. France , Judgement of 13 July 1995, Application No. 19465/92, para 41 and ECtHR Boughanemi v. France , Judgement of 24 April 1996, Application No. 2270/93, para 41. 14 Milios, Georgios, The Immigrants’ and Refugees’ Right to ‘Family Life’: How Relevant are the Principles Applied by the European Court of Human Rights? International Journal on Minority and Group Rights , 2018, p. 21. 15 Henrard, Kristin, 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 : 2012, pp. 365–413. 16 Gerards, Janneke, Judicial Deliberations in the European Court of Human Rights, in the Legitimacy of Highest Courts’ rulings, in N. Huls, M. Adams, J. Bomhoff, eds., The Hague: T.M.C. Asser Institute, 2008. 17 Gerards, Janneke, How to improve the necessity test of the European Court of Human Rights , Oxford University Press and New York University School of Law, 2013, pp. 482, 471. 18 Costello, Cathryn, The Human Rights of Migrants and Refugees in European Law , Oxford Studies in European Law, Oxford University Press, 2016, p. 127. 19 An example where the migration control approach has been used see ECtHR Omoregie and others v. Norway , Judgement of 31 July 2008, Application No. 265/07.
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