The European Court of Human Rights and the right of refugees and other persons in need of protection to family reunion

Publication Type:
Journal Article
International Journal of Refugee Law, 1999, 11 (3), pp. 427 - 450
Issue Date:
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While article 8 of the European Convention on Human Rights (ECHR50) does not provide an absolute right for individuals, it does impose certain obligations on States. In any dispute arising under this article, the European Court of Human Rights must balance two sets of competing interests, the right of individuals to private and family life, on one hand, and the interests of the community, on the other. To this end, the Court applies certain general principles but its approach in respect of article 8 is surprising for its lack of any specific criteria. The Court distinguishes between cases of entry of non-citizens into the territory of a contracting State for family reunion purposes, and cases of removal or deportation, for example, as a consequence of criminal conviction, resulting in the break up of family life. In cases of entry, the Court's approach to whether it is reasonable to expect non-citizens to develop family life elsewhere is particularly restrictive. This is because it balances the applicant's right against the State's interest at the early stage of establishing an interference under article 8(1). As a result, no interference has yet been found by the Court in such cases. In cases of removal, on the other hand, the Court will usually balance the individual's rights against the community's interests at the later stage of considering whether or not the interference was 'necessary in a democratic society' under article 8(2). Recent cases suggest that the Court is now scrutinising more closely the seriousness of the offences committed by the non-citizen, and looking predominantly at elements of family life. This being the case, where a refugee or a person in need of protection has committed serious offences and can show no strong family ties in the country of residence, he or she may only be protected against removal under article 3 ECHR50. However, where the person in need of protection has not committed a serious offence, the balance of interest would most likely weigh in his or her favour.
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