Article 8 ECHR and the ‘temporary turn’ in European asylum policies

Abstract

In response to the relatively high numbers of refugee claimants in 2015, European countries have introduced restrictive policies aimed at deterring future arrivals. In addition to border controls and safe third country agreements, measures have included the mandated cessation of refugee status when the need for protection ends, sharpened conditions for permanent residence and barriers to family reunification. Through an analysis of relevant Strasbourg jurisprudence, we examine how these policies, part of a ‘temporary turn’ in asylum, interact with refugees’ right to private and family life under Article 8 ECHR. We show that attachments developed between refugees and their countries of asylum are systematically devalued by three factors related to the wide margin of appreciation granted to states in these cases: (1) the acceptance of differential treatment of various refugee groups, (2) the formalistic distinction between ‘settled’ and ‘precarious’ migrants and (3) the limited weight given to children's best interests. We conclude that the European Court of Human Rights’ approach contributes to long-term uncertainty for refugees and their descendants in tension not only with the solutions orientation of international refugee law, but also with human rights law principles of legal certainty and effective protection.

1. Introduction: Human rights and the ‘temporary turn’ in asylum

This article explains how the human rights to family and private life protected by Article 8 of the European Convention on Human Rights (ECHR) interact with restrictive measures aimed at reducing the security of residence of people with refugee backgrounds. ¹ Within Europe, the recognition of refugee or subsidiary protection status has traditionally provided a predictable path to permanent residence. ² While refugee law permits the withdrawal of protection when the need for asylum no longer exists, most states have been reluctant, in the interests of efficiency and predictability, to apply ‘cessation’ provisions proactively. ³ During the past decade, however, the idea that states are only obliged to provide residence for the duration of a refugee's risk has been revived in response to the ‘migration crisis’ in 2015. ⁴ In addition to border closures, safe third country policies and containment measures abroad, measures adopted include the ‘bureaucratic fractioning’ ⁵ of existing protection statuses and the introduction of new and more contingent ones with shorter-term residence periods and more limited rights. In addition, some states introduced more active cessation practices. ⁶ These efforts to put asylum ‘on the clock’ through systematic protection reviews are perceived as not only politically desirable but also consistent with the purpose of refugee law. ⁷

In addition to measures directly affecting the durability of asylum, states have reduced the rights attached, by limiting social benefits for certain refugee groups, expanding powers of revocation on grounds of criminality and sharpening conditionalities for family reunification, permanent residence and citizenship. These conditionalities are promoted as measures that limit migration and motivate immigrants to adapt culturally and economically, ‘earning’ the right to remain, settle and eventually secure citizenship. ⁸ In recent years states have also intensified revocation and denaturalization practices to deter and sanction asylum fraud as well as criminal activities that may threaten the broader society. ⁹ Both individually and collectively, these measures can be described as part of a ‘temporary turn’ in European asylum policies, arguably led by Scandinavian frontrunner states. ¹⁰ The consequence is that people with previously privileged legal statuses (that is, refugee, permanent resident, citizen) are at increased risk of losing their right to remain. ¹¹

This turn to greater temporariness departs in important ways from earlier debates about the non-permanence of refugee protection. Previously, temporary asylum was framed as either an exceptional response in times of mass influx (for instance, as applied to refugees from Bosnia and Kosovo during the 1990s) or as part of a holistic approach to protection, linking the provisional grant of asylum with efforts to consolidate peace in countries and regions of refugee origin. ¹² Both models were grounded on an optimistic assumption that refugee-causing events would resolve within a reasonable period. Today, we know, at least two-thirds of all refugees are unable to safely return to their previous homes within five years of displacement, meaning that protection needs are typically protracted. ¹³ Thus this recent ‘temporary turn’ serves a more explicitly deterrent purpose, creating precarity within the asylum regime for people who may predictably remain for the long term. ¹⁴

The possibility of losing a residence permit following the cessation of refugee status or the non-renewal of a residence permit negatively affects the family and private lives which refugees have developed over time in their countries of residence. The same is true of measures postponing the possibility of reunification of close family members. Thus migration control policies must be tested against the requirements of Article 8 ECHR, which protects the right to family and private life from arbitrary state interference. The factors to be considered and the weight accorded to them in determining whether a ‘fair balance’ between individual and state interests has been struck are the subjects of extensive jurisprudence by the European Court of Human Rights (ECtHR) as well as academic debate. ¹⁵

In the following section, we review the main contours of the ECtHR's migration-related jurisprudence under Article 8. After presenting a typology of Article 8 cases, we analyse how the ECtHR has addressed two practices central to the ‘temporary turn’: limits on refugee rights related to family reunification, and the revocation of residence permits for people who do not (or no longer) need protection. We show how these practices are enabled generally by the wide margin of appreciation that characterizes the ECtHR's supervision of state compliance in immigration cases (section 3.A). ¹⁶ Specifically, they are sanctioned through the Court's implicit acceptance of fragmented protection regimes for different refugee groups (section 3.B); the weaker protection of Article 8 rights for so-called ‘precarious’ migrants (section 3.C); and the limited weight given to children's best interests in revocation decisions (section 3.D). We also demonstrate, with examples from Norway, the UK and Denmark, how states navigate and exploit grey areas in the Court's jurisprudence. In our view, the Court's approach produces legal uncertainty and undermines the effective protection of Convention rights. In particular, we point out its inadequate consideration of the broader normative environment in these cases. Thus the article aims to contribute to existing literature not only concerning the interpretation of Article 8 ECHR but also about the interaction between specialized regimes for the protection of refugee and children's rights, and general human rights law. ¹⁷

2. A typology of Article 8 immigration cases

To preface our discussion, we provide a concise overview of the ECtHR's jurisprudence in Article 8 cases involving immigration to structure the admittedly unclear limits imposed by human rights obligations on a state's general right to control the entry and residence of foreigners. Article 1 ECHR reminds us that states parties must guarantee Convention rights to all within their territory, and Article 3 (the prohibition against torture, inhuman and degrading treatment) has emerged as an important defence to deportation for migrants who may not qualify for refugee status under the Refugee Convention but nonetheless would face serious harms upon return to a country of origin or transit. ¹⁸ Article 8 ECHR, meanwhile, provides fertile grounds for contesting not only the deportation of resident migrants, but also the refusal of admissions to close family members of resident migrants or nationals. As we discuss, a third category of cases and one that is particularly pertinent to the ‘temporary turn’ are those that challenge the state's refusal to renew a residence permit granted on a conditional basis. This includes people granted temporary residence as refugees, for as long as their need for protection persists.

Protection of family and private life under Article 8 is not absolute. Article 8(1) provides that everyone ‘has the right to respect for his private and family life, his home and his correspondence’. At the same time, interference in this right by public authorities may be permitted, if the interference is ‘in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’ (Article 8(2)). Immigration control measures are typically linked to a country’s economic well-being, public safety and/or the prevention of crime. For example, in M.A. v. Denmark, the Court agreed that restricting family reunification for temporary protection status holders served the ‘general interests of the economic well-being of the country and of ensuring the effective integration of those granted protection with a view to preserving social cohesion’. ¹⁹

In immigration cases, the principle of state sovereignty is the Court's point of departure when assessing compliance with Article 8 ECHR. The Court will typically reiterate the state's entitlement to control the entry and residence of foreigners, and recall that the Convention does not guarantee the right of foreigners to enter or reside in their country of choice. ²⁰ This statist assumption has been criticized for its lack of normative foundation and for relegating the protection of rights to the realm of exceptions in the Court's compliance analyses. ²¹

ECtHR jurisprudence typically distinguishes between a state's positive obligation to ‘respect’ the right to private and family life under Article 8(1) and its negative obligation not to arbitrarily interfere with that right under Article 8(2). In practice, this means that family reunification cases centre on whether a positive duty exists to admit a foreign national while deportation cases (often triggered by criminality or security issues) concern the negative obligation not to disrupt family and/or private life ties. In practice, however, this distinction is often hard to draw and cases often have elements of both (see section 2.C). ²² For example, for people unlawfully present on a state's territory, the obligation to refrain from deportation also implies a duty to provide a legal basis for residence. However, no matter how the state's duty is conceptualized, the question in all cases is whether a ‘fair balance’ is struck between competing interests, considering the ‘certain margin of appreciation’ the state exercises, which expands and contracts depending on the nature of the case and the obligations involved. ²³ Sometimes the Court does not even explicitly determine whether it is assessing compliance with a positive or negative obligation. ²⁴

For the purpose of analysis, we will refer to cases involving primarily positive and primarily negative obligations as ‘admissions’ cases and ‘expulsion’ cases, respectively. ²⁵ In addition, we discuss a category of ‘hybrid’ cases that typically involve the withdrawal or renewal of a residence permit to someone with unauthorized or ‘precarious’ residence. These include refused asylum seekers, migrants who overstayed their visas or entered clandestinely and people whose residence was granted on fraudulent grounds. In these cases, the ECtHR considers that the refusal to grant a residence permit is only unlawful in ‘exceptional circumstances’ (section 2.C). The reliance on legal status as a proxy for the strength of family and private life interests is not a normative requirement in human rights law and the subject of strong scholarly critique. ²⁶ Nonetheless, it is an empirical fact of the Court's practice, and an important one to understand how states manoeuvre various considerations in developing and defending their migration control policies.

A. Admission cases

In cases concerning the admission of a foreign national, for example to reunite with close family members, states enjoy a wide margin of appreciation in aligning their policies to comply with the Convention. Article 8 does not impose a general duty upon states to respect a married couple's choice of residence or to authorize family reunification. ²⁷ Instead, the extent of a state's obligation to admit relatives of residents is subject to a balancing of the individual and community interests: ‘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’. ²⁸ Other considerations include children's best interests; whether the sponsor has settled status; the physical presence of the person seeking reunification in the Contracting State; whether family life was created at a time when the immigration status of one person was precarious; and whether the sponsor can cover the new resident's cost of living expenses. ²⁹

B. Expulsion cases involving ‘settled’ migrants

A second type of case involves the interference of family or private life of migrants granted a formal right of residence in a host country, so-called ‘settled migrants’. ³⁰ A subsequent withdrawal of that right, often because the person was convicted of a criminal offence, must satisfy the proportionality requirement under Article 8(2). The criteria to be considered, set out in Boultif v. Switzerland, include the nature and seriousness of the offence committed by the applicant; the length of the applicant's stay in the country of residence; the time elapsed and the applicant's behaviour since the offence; and the family situation, including the nationalities of persons concerned, the length of any marriage, and the ages of children. ³¹ In a later judgment, Üner v. Netherlands, the Court elaborated that these criteria include a consideration of the best interests and well-being of any children involved, ‘in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled’. ³² In addition, the assessment must review the ‘solidity of social, cultural and family ties with the host country and with the country of destination’. ³³ The Court further clarified in Maslov v. Austria the role that age plays in applying these criteria: ‘for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile’. ³⁴ The duration of the exclusion order is relevant, in particular whether a ban on re-entry is limited or permanent, as are medical issues. ³⁵ While both family and private life interests are relevant in cases involving the expulsion of ‘settled’ migrants, whether the focus is more on the applicant's private or family life will depend on the facts of the case. ³⁶

C. Hybrid cases involving migrants in a ‘precarious’ situation

A mix of negative and positive obligations comes into play in cases involving the denial of a residence permit to someone who has been residing in a Contracting State on an unlawful basis. ³⁷ For those in a ‘precarious’ situation, the ECtHR has concluded that refusal to grant residence and a subsequent deportation of the foreign national violates Article 8 only in ‘exceptional circumstances’. It enumerated some guiding principles for assessing such cases in Rodrigues da Silva & Hoogkamer, concerning a Brazilian applicant in the Netherlands who had never had a legal right of residence, but who sought to remain there with her young Dutch daughter after her relationship with the girl's Dutch national father had ended. ³⁸

As articulated in Rodrigues da Silva and Hoogkamer, important considerations are whether ‘insurmountable obstacles’ exist to exercising family life elsewhere, and 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’, either because the person is present without authorization (following a failed asylum application, or the expiration of his or her visa) or misinformed authorities in order to obtain residence. ³⁹ Other relevant factors include the extent of family ties in the host state, whether there is a history of immigration law breaches, public order concerns and, where relevant, the strength of the bond between the applicant and his or her children. The Court considers that the best interests of the child are meant to carry ‘significant weight’ (see section 3.D). ⁴⁰ Other relevant considerations relate to the applicant's legitimate expectations of stay, for example whether he or she could have secured lawful residence at some point, and whether the person was aware of his or her unlawful residence at all. ⁴¹ If the applicant had grown up under the assumption that he or she was lawfully resident, the Court has deemed the ‘exceptional circumstances’ test to be too restrictive. Instead, the assessment must ‘be carried out from a neutral starting point, taking into account the specific circumstances of the applicant's case’. ⁴²

Policies pursued by states to make refugee protection and long-term residence less secure intersect with this typology at two levels. First, as described in section 3.B, the fragmentation and proliferation of protection categories enable states to selectively suspend certain rights normally accorded to refugees. These include the right to family reunification, giving rise to questions about states’ positive duties to facilitate admission of close family members and the legitimacy of making distinctions between populations with similar needs for protection. Second, revocation practice is facilitated by the exploitation of grey zones in the Court's jurisprudence concerning ‘precarious’ and ‘settled’ migrants, as well as its strong deference to states’ claimed interests in immigration control. This results in a narrow scope for the grant or retention of residence rights based on private and family life interests.

We now turn to how features of the ECtHR's approach under Article 8 ECHR permit states to leverage gaps and inconsistencies in the Court's jurisprudence in furtherance of restrictive migration control policies.

3. Interpretive factors enabling the erosion of family and private life interests

In the following sections, we analyse how the margin of appreciation accorded to states parties in the application of Article 8 ECHR enables and legitimizes the ‘temporary turn’ in asylum. Related to its weak scrutiny of states’ claimed interests in various aspects of migration control (section 3.A), we show how the ECtHR has implicitly accepted an increasing fragmentation of protection categories (section 3.B), leading to a deepened stratification of refugee rights. We then discuss how grey areas in case law on ‘settled’ and ‘precarious’ migrants have emboldened states to make highly formalistic distinctions which erode the protection of family and private life as well as children's best interests (section 3.C). Finally, we critique the partial and inconsistent integration of children's rights in the Article 8 analysis (section 3.D). Independently and through their interaction, these factors establish a wide scope for states to pursue return-oriented asylum policies that interfere with the protection of refugees’ rights.

A. The point of departure: A wide margin of appreciation

The margin of appreciation refers to the room for manoeuvre that states parties have in securing treaty rights to individuals within their jurisdiction. As the ‘doctrinal expression of the principle of subsidiarity’, the margin of appreciation is justified by the claim that national authorities, through their democratic mandates and more grounded understanding of the local context are better positioned than supranational bodies to make decisions affecting their own populations. ⁴³ The margin of appreciation doctrine shapes the Court's substantive assessment of cases that require a balancing between individual and state interests. It is applied to determine whether an interference with qualified rights is proportionate (Articles 8–11) or if differential treatment is, in fact, discriminatory (Article 14). In the field of migration, the Court asserts that immigration control serves the general economic interests of the state, to which a broad margin of appreciation applies. ⁴⁴ During the past decade, the margin of appreciation doctrine has been re-enforced by several initiatives by member states to ensure a maximum degree of autonomy in securing ECHR rights. For example, following a series of High Level Conferences on the Future of the ECtHR, states parties adopted Protocol No. 15 to the ECHR, introducing a new recital in the ECHR preamble specifically mentioning the principle of subsidiarity and the margin of appreciation. ⁴⁵ The 2018 Copenhagen Declaration, drafted under the Danish Presidency of the Council of Europe, emphasizes that the Court's jurisprudence ‘makes clear that States Parties enjoy a margin of appreciation in how they apply and implement the Convention, depending on the circumstances of the case and the rights and freedoms engaged’. ⁴⁶ The Danish government had initially tried to include more explicit language pressuring the Court to exercise restraint in its review of migration-related cases. Although this effort failed in the end, political signals have arguably influenced the Court's jurisprudence. ⁴⁷

The wide margin of appreciation infuses several dimensions of the Court's evaluation of state compliance with the ECHR. In general, an interference with qualified rights will only be justified if it responds to a ‘pressing social need’ and the interference itself is ‘proportionate to the legitimate aim pursued’. ⁴⁸ As Gerards observes, this ‘necessity test’ is so unevenly applied it risks being ‘more important as a rhetorical device’ than as a frame for analysis. ⁴⁹ In Article 8 jurisprudence, we see a shift in the type of scrutiny applied to the state's justification for limiting the rights of non-nationals. In earlier cases involving the expulsion of settled migrants (usually with criminal records), the Court examined the legitimacy of the state's claimed interest in migration control from an individual perspective, considering the severity of the crime or legal infraction, the risk of reoffending and the effects on society and the individuals concerned. ⁵⁰ In contrast to this case-specific qualitative scrutiny, the Court now endorses state interests reflecting more generalized concerns. State aims related to the number of migrants, unspecified security threats and maintaining trust in the asylum system have gone largely unchallenged in the Court's examination.

For example, in M.A., the Court referred to the ‘drastic increase in the number of asylum-seekers’ and the concomitant obligation of domestic authorities to provide social benefits and allowances to people granted protection. ⁵¹ A similar deference is accorded to states’ securitization rationale used to justify deporting people who violate domestic immigration law. Such infractions are associated with a myriad of harms, related to public security, to the welfare state and more generally to a trust-based society. ⁵² However, breaches may be endorsed as very serious even if there are no aggravating features, or no evidence of the claimed deterrence effect of the sanction imposed. No distinction is made between decades-old infractions and those that pose a current threat to the relevant societal interests. In Alleleh and Others v. Norway, the Court endorsed the ‘weighty immigration policy arguments in favour of the expulsion’ of a Djibouti national who had claimed to come from Somalia more than a decade earlier in order to secure asylum; in approving the Norwegian government's decision to deport the applicant, despite her subsequent marriage to a Norwegian national and the birth of their four children, it emphasized ‘the seriousness of her offences’ in repeating the falsehood in subsequent residence applications, and the ‘necessity’ of a sanction in the form of expulsion to uphold respect for the law. ⁵³

The lack of scrutiny of the state's aim can itself be considered an expansive application of the margin of appreciation doctrine. ⁵⁴ In addition, it feeds a wider margin of appreciation in the proportionality assessment. While the question in a proportionality analysis should centre on whether the state interest is sufficient to outweigh its interference in individual rights, more recent jurisprudence seems to shift focus by examining whether the cumulative effects of the interference for the individuals concerned are strong enough to prevail over the state's general interest in migration control. In procedural terms, by taking the state's interest as an unscrutinized starting point, the burden of justification effectively shifts from the state to the affected individual applicant. As a result, the control and deterrence rationale are endorsed without considering whether the measures taken can be reasonably expected to secure the objective pursued.

We now turn to the specific ways in which the ECtHR's weak scrutiny of states’ claimed interests in migration control enables the implementation of restrictive policies as part of the ‘temporary turn’ in asylum.

B. Accepting differential treatment of refugees in different protection categories

The creation of new protection categories for at-risk groups, and the fragmentation of existing ones is as Zetter argues, one of the ‘defining characteristics’ of the 21st-century refugee regime. ⁵⁵ In the field of refugee law, this development has been a source of controversy, not least because it leads to a protection lottery within Europe: people fleeing for the same reasons access different types of status and residence permits depending on where they are. For example, Syrians seeking protection in 2015 within Europe received mainly refugee status in Austria, Norway and Greece while in Sweden, Spain, Cyprus and Malta they received subsidiary protection. ⁵⁶ In Denmark, a tertiary protection status was extended to many Syrians while male applicants were mostly recognized as Convention status refugees due to their risk of persecution for reasons of impugned political opinion due to draft evasion.

As part of the increased policy focus on temporariness of protection and regular review of asylum permits, states have introduced additional (sub)categories of refugees with a view to applying different legal standards to the various categories. The differentiation has affected the rights accorded to refugees during protection as well as the threshold for bringing protection to an end by revoking asylum permits when the need for international protection is considered to no longer exist. ⁵⁷ As a common feature, the distinctions appear to be based on vague assumptions on the nature and perceived duration of the need for protection rather than empirical reality. ⁵⁸ Thus states have argued that the need for protection is of shorter duration for persons fleeing generalized risks or for those who became refugees after leaving their country of origin (sur place refugees), as described in the following section. ⁵⁹

1. Tacit approval of distinction: Suspended family reunification for certain refugee categories

As mentioned above, one of the restrictive policy responses to the 2015 asylum crisis was the introduction of differential standards on the right to family reunification for refugees with varying forms of subsidiary or temporary protection. Thus waiting periods and requirements of financial independence have been imposed on persons not falling within the Convention refugee definition who are granted subsidiary or temporary protection. Although this was considered compatible with the EU Family Reunification Directive, according to which only Convention status refugees are exempt from certain general requirements, ⁶⁰ suspension or denial of family reunification for persons merely due to their belonging to other protection categories has been seen as a potential opener to discrimination. This was challenged before the ECtHR in a number of cases, but so far the human rights compatibility of the distinction made between various protection categories has not been comprehensively reviewed by the Court.

One explanation for the limited judicial scrutiny is the fact that among the few ECtHR judgments concerning refusal of family reunification to refugees, some cases have been examined only under Article 8 ECHR on the right to respect for private and family life, and not under Article 14 ECHR prohibiting discrimination. Remarkably, in the first leading case examining the suspension of the right to family reunification for a beneficiary of temporary protection under Danish law, the ECtHR found no need after finding a violation of Article 8 to examine separately the complaint under Article 14 in conjunction with Article 8. This latter complaint was based on the alleged discrimination against sponsors with temporary protection status as compared to those with Convention refugee status or ordinary subsidiary protection status. ⁶¹

At the same time, despite the absence of a separate examination of Article 14 in conjunction with Article 8, the ECtHR has implicitly approved the differential treatment of persons with temporary protection status. Thus, as part of the Article 8 reasoning in the M.A. judgment the Court not only accepted a wide margin of appreciation for states’ decisions to impose a waiting period for family reunification with certain protection categories, ⁶² but it also stated in more substantive terms that it found no reason to question the distinction made by the Danish legislature in respect of persons granted protection due to an ‘individualised threat’, that is, refugee status under the Refugee Convention or subsidiary protection status under Danish law on the one hand, and those granted temporary protection status due to a ‘generalised threat’ on the other hand. ⁶³

2. Discrimination test blurring the comparability of various refuge categories

Importantly, the ECtHR did not consider the comparability of the various protection categories when making these generalized statements, although proper analysis of this question would seem to be crucial to the assessment of the alleged discrimination under Article 14 ECHR. The absence of such analysis as a basis for the implicit approval of the distinction may have affected the legal reasoning in cases that were exclusively examined under Article 8, and it seems particularly problematic because it may have influenced the Court's less than clear approach in subsequent cases.

The complaint of discrimination was indeed examined under Article 14 ECHR in M.T. and Others v. Sweden, but with some hesitation as to whether persons with subsidiary protection were in a relevantly similar, that is, comparable, situation to that of Convention status refugees. ⁶⁴ Following somewhat inconsistent observations on the alleged lack of comparability between the various protection categories, ⁶⁵ the Court declared itself willing to proceed on the basis of the assumption that the applicant was in an ‘analogous or relevantly similar’ situation to that of persons granted Convention refugee status. Having thus accepted their comparable situations for the purpose of examining the difference in treatment as regards the right to family reunification, the Court considered the differential treatment reasonably and objectively justified by the need to control immigration in the interest of the country’s ‘economic well-being’ and therefore not in violation of Article 14 in conjunction with Article 8. ⁶⁶

In a more recent case concerning stricter requirements for family reunification for a certain subcategory of Convention status refugees, the ECtHR once again focused on Article 8 ECHR while considering it unnecessary to examine separately the complaint under Article 14, having regard to its ‘reasoning and findings under Article 8 of the Convention’. ⁶⁷ The case concerned distinctions made in Swiss law and practice between Convention status refugees fleeing a risk of persecution that existed before leaving their country of origin, and those whose fear of persecution in the country of origin has arisen following their departure from that country and, in the Court's view, ‘as a result of their own actions’ such as the applicants’ illegal exit. ⁶⁸ For the latter subcategory, falling within the concept of refugees sur place, the Court held that common ground can be discerned at national, international and European levels in terms of not distinguishing between different refugees within the meaning of the Refugee Convention as regards requirements for family reunification. ⁶⁹

Although noting that such common ground reduces the margin of appreciation afforded to states parties, and that Switzerland's approach had been criticized as discriminatory by the Council of Europe Commissioner for Human Rights, CERD and UNHCR, ⁷⁰ the ECtHR returned to the situation at hand. The Court stated that it was not in a position to question that the circumstances surrounding the applicants’ departure from their countries of origin and their separation from their family members were distinct from those of ‘refugees who were forced to flee persecution in their countries of origin’. Recognizing that the Court's case law does not require that the conditions of departure and family separation be taken into account as an element in the assessment as to whether a duty exists under Article 8 to grant family reunification, the Court considered that it ‘cannot discern that it is manifestly unreasonable to do so per se’. ⁷¹

The ECtHR's line of reasoning leaves the impression that the balancing under Article 8 may have been conflated with considerations of comparability for the purpose of discrimination analysis under Article 14 ECHR. Even if the Court may have intended to focus on the degree of deservingness versus the personal fault of the sur place refugees applying for family reunification, it seems to have resorted to considerations pertaining to whether or not they are in a relevantly similar situation to that of other refugees who fled an already existing risk of persecution. ⁷² In doing so within the Article 8 framework, the Court in fact pronounces itself on the comparability issue more or less disconnected from an adequate discrimination test in accordance with Article 14 jurisprudence.

C. Enabling the stealth expansion of the ‘precarious’ migrant category

As described in the typology above (section 2), the ECtHR applies a different test to Article 8 cases concerning the withdrawal of residence from a ‘settled migrant’ with formal residence status and those involving the grant of residence to migrants without a legal basis for stay. In state practice, the artificial fault line between ‘settled’ and ‘precarious’ migrants is deepened further by the expansion of the ‘precarious’ category to include foreign nationals who do have a legal basis of stay, including refugees. As ‘precarious’ migrants they may either be considered to lack a legally protected interest under Article 8 or be subject to the ‘exceptional circumstances’ test under Article 8(2). This expansion of the ‘precarious’ migrant category, as we show in the following sections, is enabled by gaps in the Court's jurisprudence, excessive formalism by state authorities and the failure to integrate norms and principles of refugee law into the interpretation of Article 8.

1. Temporary residence as a proxy for precarious status: the case of refugees

The increased emphasis on regular protection reviews for people with refugee status raises the question of where, on the ‘settled’ versus ‘precarious’ spectrum, individuals subject to revocation and deportation because they are no longer deemed to need asylum should be positioned. This type of hybrid case has not been directly considered by the ECtHR so far; by analogy one could look at other categories of immigrants who are ‘conditionally’ resident: through family reunification, a temporary work permit or a study visa. In such circumstances, the Court has traditionally taken a broad assessment of whether a fair balance has been achieved. In Berrehab v. the Netherlands, concerning an applicant whose residence permit in the Netherlands was granted ‘solely for the purpose of enabling him to live with his Dutch wife’, the denial of renewed residence following their divorce was found to be a disproportionate interference under Article 8(2). ⁷³ The Court emphasized that deportation would prevent him from maintaining consistent contact with his young daughter. Further, it took account of the lawful basis for his original residence and the absence of any criminal behaviour. ⁷⁴ The balancing test undertaken by the Court in Berrehab suggests that migrants with conditional residence are subject to the same threshold for protection under Article 8 as settled migrants.

The terms of Mr Berrehab's visa are comparable to those of a refugee granted asylum, in the sense that it provided a lawful residence conditioned on the absence of a relevant change in circumstances. Nonetheless, some states have exploited gaps in refugee-specific jurisprudence to interpret Article 8 in ways that arguably overstretch its normative bounds. In a 2018 judgment, for example, the Norwegian Supreme Court found that Article 8 was not engaged in a case concerning the withdrawal of a three-year temporary residence permit from an Afghan refugee and her daughter. ⁷⁵ The revocation of residence was based on a finding that the grounds underlying the mother's need for asylum – her lack of male support upon return to Afghanistan – had been resolved once her husband, whom she had been separated from during her flight, had come to Norway to rejoin his family. She argued that deportation was a disproportionate interference in the right to private life for her and her daughter, who had established ties to the country during their stay. In this case, the Supreme Court accepted the state's argument that refugees with temporary residence have no legitimate expectation of stay; they were therefore not to be considered as ‘settled migrants’ with an established right to private life. The phrase ‘settled migrants’, it concluded, connotes ‘foreigners who have come to the host country to live there indefinitely, and where this has been accepted and formalized’. ⁷⁶ Accordingly, ordinary permits given for a limited duration ‘normally will not provide the basis for protection under Article 8’. ⁷⁷ In the UK, meanwhile, the Supreme Court has accepted that for persons lacking permanent residence, private life interests under Article 8 should be accorded ‘little weight’ unless there are ‘particularly strong features of the private life in question’. ⁷⁸ It therefore extends the concept of a ‘precarious immigration status’ beyond its main scope of application – that is, to people in the UK unlawfully or who obtained leave fraudulently – to anyone with limited leave to enter or remain. In such cases, continued residence based on Article 8 grounds depends on whether ‘exceptional circumstances’ exist.

2. Interpreting Article 8 in its normative environment: the role of refugee law

With these decisions, national courts have endorsed reasoning that, in our view, transgresses even the highly deferential approach to Article 8 that the ECtHR takes in immigration cases. Indeed, the ECtHR has criticized overly formalistic decisions by domestic authorities that fail to account for the applicant's justified expectations of stay. ⁷⁹ Such expectations may arise through the grant of consecutive and renewable temporary permits; the absence of reaction by state authorities to a person's unlawful presence for a period of time; or the person's lack of awareness concerning his or her unlawful status. ⁸⁰ We argue that this is also the case for most refugees, for whom the duration of protection needs is unknown.

In B.F., the respondent government used the stigma of precarity in the attempt to justify the disputed distinction between sur place refugees and other refugees, invoking the difference in terms of nature and duration of the stay between refugees granted ordinary asylum that was meant to be permanent from the outset, and that of ‘provisionally admitted’ sur place refugees whose stay was ‘precarious’ and not meant to be permanent. Remarkably, the ECtHR refuted this assertion, stating that it did not appear to be sufficiently supported by evidence. Referring to information from national authorities in the respondent state, the Council of Europe Commissioner for Human Rights and UNHCR, the Court observed that recognized refugees, whether they belong to the former or the latter category, are as a rule unable to return to their countries of origin in the long run. Consequently, the ‘provisionally admitted’ sur place refugees were considered to have ‘de facto settled status’ in Switzerland, unless the revocation of their status is foreseeable. ⁸¹ Thus, despite its incoherent approach to the discrimination issue that was only implicitly dealt with, the ECtHR cannot be said to have approved the formal distinction between ‘precarious’ and ‘settled’ refugees in this case, but focused on the factual situation of the affected individuals.

The recognition of a refugee's justified expectation of stay is consistent with a purposive reading of the Refugee Convention and an interpretive approach to Article 8 ECHR that takes into account the treaty's normative environment. ⁸² While refugee status is not meant to be permanent, as the cessation provisions codified in Article 1C of the Refugee Convention confirm, the treaty's central purpose is to ‘restore at-risk individuals to membership of a national community’, enabling them to rebuild their lives through a stable legal status and attached rights. ⁸³ The duration of the need is completely unrelated to the type of residence permit they receive under domestic law, which may range from a short term temporary permit to immediate permanent residence. ⁸⁴ In some jurisdictions, conditionalities have been introduced for all migrants, including refugees, to qualify for permanent residence. These include income thresholds, language tests and ‘good character’ requirements; in practice they sever the traditional link between a foreigner's duration of stay and an increasingly secure residence status. As a consequence, refugees and other migrants unable to meet these conditions may remain ‘temporary’ indefinitely. It would undermine the human rights of lawful residents with legitimate prospects of stay to insist based on the technicality of the type of permit they have that their private and family life is not, or only exceptionally, deserving of protection. ⁸⁵

Thus the starting point of an Article 8 assessment, in keeping with the interpretive duty to take into account other relevant sources of international law, is not the duration of the residence permit itself, but the person's legitimate expectation of stay based on the initial recognition of refugee or other protection status, to which a significant degree of legal certainty is attached. Therefore, while the outcome of the Norwegian judgment might be legitimate, given the relatively short period of residence and the particularities of the applicant's risk, the specific reasoning used by the Supreme Court to get there was not. The question is not whether Article 8 applies at all, or whether ‘exceptional circumstances’ exist, but rather whether the impact of removal to a situation of internal displacement in Kabul and in light of the child's best interests can be justified by a pressing social need and is proportionate to the community's interest in removing people who no longer need protection.

D. Restricting the weight of children's best interests in revocation decisions

A third way in which the ECtHR's interpretation of Article 8 ECHR enables the protracted deportability of refugees and other migrants is through its inconsistent and limited integration of children's rights in the assessment of whether an immigration decision reflects a ‘fair balance’ between individual and community interests. As mentioned above, the ECtHR recognizes the duty of states to interpret international treaties, including the ECHR, in light of the broader normative environment. Thus the Court has repeatedly stated that children's best interests, a principle of international law stemming from the Convention on the Rights of the Child (CRC), are of ‘paramount importance’ in the interpretation of Article 8, including in decisions regarding the revocation of a child's or a parent's residence permit. ⁸⁶ While ‘paramount importance’ sounds even more forceful than the phrase ‘primary consideration’ used in the CRC, the ECtHR has moderated the impact of children's best interests by stating that although such interests ‘must be afforded significant weight’, they are not alone decisive. ⁸⁷ While it has identified relevant factors for the best interests assessment, including age, the strength of the child's bond to his or her parents, and attachments of the child to the country of proposed return, the Court does not assess these factors consistently or treat the best interests principle as an independent right in itself. ⁸⁸ As Smyth observes, children's best interests drift ‘in the slip-stream of other factors’ whether positive or negative for the applicant. ⁸⁹ Not surprisingly, then, children's best interests have become a site of contestation in revocation practice, as governments aim to limit the weight and relevance of children's ties to their country of residence.

For example, in expulsion cases involving migrants deemed to have ‘precarious’ residence, children's best interests have been subsumed into the ‘exceptional circumstances’ test that the Court has developed under Article 8. In the Alleleh case mentioned above, the ECtHR endorsed the test applied by the Norwegian Supreme Court, which reasoned that ‘where serious violations of the Immigration Act lead to the basis for residence falling away, deportation will generally only be disproportionate to the children if it entails unusually heavy or extraordinary burdens upon them. Interventions in family life that do not go beyond what must be assumed to be a general consequence of an expulsion decision – financially, socially and emotionally – are not in themselves sufficient for the intervention to be considered disproportionate’. ⁹⁰ Applied to the facts of the case, both courts concluded that there was nothing about the children's situation that made them particularly vulnerable, and their distress at the impending separation from their primary caregiver was a normal and expected reaction. The ECtHR distinguished the facts from other cases involving the children of ‘precarious’ migrants, pointing out that there was nothing unusually protracted about the case processing time, and there were no previous disturbances in the children's upbringing that would set the case apart. In other words, it held that the child must be exceptionally affected by the deportation of a parent for his or her best interests to be determinative.

This standard not only imposes an extra requirement of ‘special vulnerability’, systematically devaluing the best interest principle, and firmly places the burden on the applicant to demonstrate harm in a comparative way. It incentivizes states to take what Bailliet calls a ‘restrictive contestational approach’. ⁹¹ A more principled point of departure would integrate the state's duty not to separate a child from parents except when in his or her best interests (Article 9, CRC). ⁹² Recognition of this right would shift the focus more securely to the question of whether any interference in the child-parent relationship which is not in the child's interest is nonetheless justified by a pressing state aim.

4. Conclusion

This article has critically examined the intersection of European asylum policies and the right to family and private life as protected under Article 8 ECHR. The recent ‘temporary turn’ in asylum – characterized by the mandated revocation of residence permits, sharpened conditions for permanent residence and barriers to family reunification – represents a significant departure from the traditional link in Europe between the grant of refugee status and possibilities for long-term settlement. By intensifying the risk of deportability and family separation, it threatens the protection of migrants’ private and family lives under Article 8 ECHR. Through an analysis of ECtHR jurisprudence and illustrative state practices, we have highlighted three critical factors that facilitate this erosion of rights: the exploitation of legal status categories, the formalistic distinctions made between ‘settled’ and ‘precarious’ migrants in the assessment of Article 8 compliance and the limited weight accorded children's best interests.

The proliferation and fragmentation of protection categories are leveraged by states to limit refugees’ right to family reunification, largely without oversight of the basis for these categories and their potentially discriminatory effects. The ECtHR’s jurisprudence, while occasionally providing relief in individual cases, does not adequately scrutinize the state's justifications for the stratification of status and limitations on attached rights.

Further, the distinction the ECtHR draws in its own jurisprudence between ‘settled’ migrants and those with ‘precarious’ residence systematically devalues the family and private life ties that individuals develop over time in their place of abode. The lack of relevant jurisprudence on conditional migrants like refugees exposes a grey area that states exploit in pursuit of restrictive agendas. Rather than exclusively focusing on the person's formal legal status to determine the scope of protection under Article 8, the degree of actual interference considering a person's reasonable expectation of stay and their de facto family and private life ties should be the point of departure in a holistic assessment.

While the Court integrates the principle of children's best interests in the interpretation of Article 8, its approach is compromised by selectivity when it comes to the relevant factors and also by the variable weight these have. This results in a wide scope for separating families and disregarding children's best interests in decisions to deport them. In light of these findings, we advocate for a more rigorous jurisprudence under Article 8 ECHR, guided by the principles of treaty interpretation and the proportionality doctrine. First, this would demand a more systemic integration of relevant sources of law into the Article 8 analysis, to ensure adequate consideration of children's and refugee rights elaborated in specialized instruments. Second, the substantive dimension of the margin of appreciation should be aligned with the principles of proportionality which requires a more structured examination. This includes the identification of a pressing state aim and the state's duty to demonstrate that any interference is narrowly targeted and does the least possible harm to individual rights. These two changes – interpreting Article 8 in light of other relevant norms and applying a more structured proportionality assessment – would not only promote greater coherence between human rights law and the solutions orientation of refugee law, but they would also ensure greater legal certainty and effective protection under Article 8 ECHR.