EUROPEAN COURT OF HUMAN RIGHTS IN ACTION / Alla Tymofeyeva (ed.)

Where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunification on its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion. Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. It is the Court’s well-established case-law that, where this is the case, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (see Abdulaziz, Cabales and Balkandali v. the United Kingdom , judgment of 28 May 1985, Series A no. 94, p. 94, § 68; Mitchell v. the United Kingdom (dec.), no. 40447/98, 24 November 1998; Ajayi and Others v. the United Kingdom (dec.), no. 27663/95, 22 June 1999; M. v. the United Kingdom (dec.), no. 25087/06, 24 June 2008; Rodrigues da Silva and Hoogkamer v. the Netherlands , cited above, § 39; Arvelo Aponte v. the Netherlands , cited above, §§ 57-58; and Butt v. Norway , cited above, § 78). Where children are involved , their best interests must be taken into account (see Tuquabo- Tekle and Others v. the Netherlands , no. 60665/00, § 44, 1 December 2005; mutatis mutandis , Popov v. France , nos. 39472/07 and 39474/07, §§ 139-140, 19 January 2012; Neulinger and Shuruk v. Switzerland , cited above, § 135; and X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). On this particular point, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see Neulinger and Shuruk v. Switzerland , cited above, § 135, and X v. Latvia , cited above, § 96). Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight. Accordingly, national decision-making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it. Article 8 includes a parent’s right to have measures taken with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action. In implementing such measures the authorities should take into account the best interests of the child, which are considered in terms of the possibility of using coercive measures to enforce return. The positive obligations under Article 8 of the Convention must be interpreted in the light of the Hague Convention. The adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to execution of the decision delivered require urgent handling, as the passage of time can have irremediable consequences for relations between the children and the parent who does not live with them. Finally, the Court has defined its role in such cases as considering whether the measures taken by the domestic authorities were “adequate and effective” ( V.P. v. Russia , no. 61362/12, § 142, 23 October 2014). The Court has dealt with a number of cases concerning discrimination on account of sexual orientation . Some were examined under Article 8 alone, namely cases concerning the prohibition under criminal law of homosexual relations between adults (see Dudgeon v. the United Kingdom , 22 October 1981, Series A no. 45; Norris v. Ireland , 26 October 1988, Series A no. 142; and Modinos v. Cyprus , 22 April 1993, Series A no. 259) and the discharge of homosexuals from the armed forces (see Smith and Grady v. the United Kingdom , nos. 33985/96 and 33986/96, ECHR

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EUROPEAN COURT OF HUMAN RIGHTS IN ACTION