CYIL vol. 12 (2021)

CYIL 12 (2021) The Influence of EU Law in ECtHR’s Case-law on Family Migration proportionality assessments. 62 EU citizenship entails a stable right of residence for the sponsor with family unification as a right as illustrated by the case-law on EU Citizens’ TCN’s family members. The Omoregie case 63 makes it very obvious how different TCNs’ family members protected under the ECHR are treated in comparison to TCNs’ family members to EU citizens under EU law. Especially when comparing it to the Metock case. 64 In the Metock case, the CJEU found that the spouses’ status as unsuccessful asylum seekers was irrelevant to their EU rights as TCNs’ spouses of EU citizens, while in Omoregie the ECtHR held that Article 8 of the ECHR did not afford any protection to the family life in Norway, as the couple could have had no expectation of the asylum seeker’s continued residence there. Lock states that “ EU law is relevant not only in the determination of the scope of Convention rights, but it is also invoked in the ECtHR’s proportionality analysis. ” 65 With this being said, referring to and drawing inspiration from EU law when determining compliance with Article 8 of the ECHR in immigration case-law, would be an understandable step. 4.1 The use of EU laws proportionality test in ECtHR case-law Janneke suggests that an improvement in the ECtHR’s application of the justification test could be reached if the Court would make more systematic use of the three-part test of proportionality as it has been developed by for instance the CJEU. 66 The three parts of the proportionality test in EU law are suitability, necessity, and proportionality in the strict sense. 67 The suitability and necessity requirements deal with the relationship between the aims of a measure and the means or instruments that have been chosen to achieve these aims. If an interference with a right proves to be unsuitable or superfluous, either because the aims pursued cannot be achieved by it in any case, or because less intrusive means are available, there is no good reason to sustain such an interference. 68 The third requirement, proportionality in the strict sense, concerns the relationship between the interests at stake. It requires that a reasonable balance should be achieved among the interests served by the measure and the interests that are harmed by introducing it. 69 If the conditions of suitability and necessity are shown fulfilled, only then the requirement of proportionality in the strict sense will be applied. 70 In the current ECtHR case-law, the Court is in most cases applying a fair balance test without preceding it with a means-ends test. 71 62 See Costello, Cathryn, The Human Rights of Migrants and Refugees in European Law , Oxford Studies in European Law, 2016, Oxford University Press, p. 169. 63 ECtHR Omoregie and others v. Norway , Judgement of 31 July 2008, Application No. 265/07. 64 Case C-127/08 Metock [2008] ECR I-6241. 65 Lock, Tobias, The Influence of EU Law on Strasbourg Doctrines, European Law Review , Research Paper Series No 2017/03, p. 5. 66 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, p. 469. 67 Rochel, Johan, Working in tandem: Proportionality and procedural guarantees in EU immigration law, German Law Journal , 2019, p. 92. 68 Réaume, G. Denise, Limitations on Constitutional Rights: The Logic of Proportionality , University of Oxford Legal Research Paper Series, Paper No. 26/2009, p. 25. 69 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, p. 469. 70 Rochel, Johan, Working in tandem: Proportionality and procedural guarantees in EU immigration law, German Law Journal , 2019, p. 92. 71 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, p. 488.

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