CYIL vol. 12 (2021)

CYIL 12 (2021) The Influence of EU Law in ECtHR’s Case-law on Family Migration 5. Conclusion The contrast between the ECtHR’s and CJEU’s approach on the right to family life is remarkable. The ECtHR’s proportionality assessment, that normally requires a balancing of the interference with the individual’s rights and the state’s interest, does not reflect a clear proportionality standard due to the multi factor balancing approach. The Court’s use of the necessary test is too vague and general and the balancing test which is often used by the Court is complex, subjective, and not transparent. 94 Further, the state’s interest in migration control infuses the Court’s approach and it is assumed that refusal of entry and removal in themselves pursue legitimate aims which makes the case-law unstable. Even though the ECtHR’s case- law allows the state an area of discretion, the Court has not determined where to draw the line when a state has overstepped its margin of appreciation. 95 This case-law is in stark contrast to the CJEU case-law on family reunification where clearer rights and more rigorous proportionality assessment are being used and TCNs’ family members of EU citizens have a stronger protection. Therefore, it is of interest for the ECtHR to draw inspiration from EU law. 96 If the ECtHR would use the means-ends test thoroughly, it could be an important complement to the balancing test. The means-ends test would require the Court to explicitly determine the interests involved in the case and to give the reasons why the measures were used to achieve the goals, which is often left out in the ECtHR’s balancing test. In order to limit the inconsistency and move towards a similar protection as EU law the Court should take the rights of the family as the basis and look at the Convention to find out whether the state can legitimately limit this right and not seeing state sovereignty as the basis and look for limitations of state sovereignty in the Convention’s codification of human rights. Thus, paying less attention to the margin of appreciation given to the Contracting States which risk negating the need for uniformity and the related concerns of legal certainty, predictability, and coherence. 97 Lastly, a creative engagement between ECtHR and CJEU may offer the best way to contest inconsistency under the right circumstances. As Laurent Scheek explained it: Just as in cooperative binary puzzles where two players must solve the game together and where both lose as someone tries to win over the other, solving Europe’s binary human rights puzzle has required of European judges a new way of thinking where it’s not the institutions, but their linkage that matters. 98 Therefore, drawing inspiration fromEU lawwill lead to greater legal certainty for contracting parties and individuals and limit the widely diverging practices by the states and the ECtHR. 94 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. 95 See T. Spijkerboer, T. Structural Instability: Strasbourg Case Law on Children’s Family Reunion, European Journal of Migration and Law , 2009, 11. 96 Costello, Cathryn, The Human Rights of Migrants and Refugees in European Law , Oxford Studies in European Law, Oxford University Press, 2016, p. 130. 97 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, p. 372. 98 Laurent Scheek, ‘The Relationship between the European Courts and Integration through Human Rights’, 65 Heidelberg Journal of International Law 837, 2005, p. 885.


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