FAMILY REUNIFICATION AND ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Article 8 of the European Convention on Human Rights provides that:

“Everyone has the right to respect for his private and family life, his home and his correspondence”.

In regards to family reunification applications, the respect for family life referred to in article 8 becomes of particular importance.

Over the course of its history, the European Court of Human Rights has established a substantial body of case law in regards to both the right to respect for family life individually and its impact on the assessment of unsuccessful family reunification applications. Importantly, the ‘family’ has been established as an autonomous concept, meaning the European Court of Human Rights is not bound by the national courts assessment of what constitutes as a family.

That is not to say that the courts handling of unsuccessful family reunification applications and article 8 is completely unfettered. In its assessment of the individual’s rights under Article 8, the court must find a balance with the host states immigration policies. Usually a wide margin of appreciation is afforded to the state. This reflects the wider policy that it is primarily for the state to ensure that the individual’s rights are upheld. In her article, ‘Family reunification in EU law and under the ECHR’ Nuala Mole points out that the key question in assessing the interplay of family reunification and Article 8 is “whether the state has overstepped this margin of appreciation in the particular case before it and so failed to respect this key right.”

In general, recognition must be given to the well established fact that the ECHR does not guarantee to individuals a choice of country of residence.

Taking a similar interpretation to its stance on family regularisation, the ECHR will generally find that a spouse resident in Europe, whose partner is not within the union, may be required to relocate as opposed to have their spouse join them, unless they show that there are “serious obstacles” preventing relocation. This will not usually constitute a breach of Article 8 as it is not preventing the couple continuing their ‘family life’, even if they are required to do so in another country.

Nuala Mole’s assessment is particularly relevant, “The Court also attaches considerable weight to the fact that the immigration difficulties, which a family is now encountering, were ascertainable at the time of the marriage, and that the couple should not therefore have had an expectation that they would be able to live together in the host country”.

In the case where it is a child who has been left behind, as often happens when families migrate, the ECHR have generally taken the same hard line approach that there is no Article 8 violation where it is possible for the family to carry out family life in their country of origin. However, sometimes a much more favourable approach may be taken. Where circumstances dictate that a different path is necessary, the ECHR may look favourably on the applicant.

Nuala Mole’s article ‘Family Reunification in EU law and under the ECHR’ can be viewed here.

Brophy Solicitors

Zambrano Update! Decision of the Court of Justice in Dereci

The Court of Justice yesterday issued its judgement in Dereci and Others v Bundesministers fur Inneres .

As you may recall from our previous posting this referral by an Austrian court sought clarification on the findings of Zambrano and the interpretation of the Union citizenship provisions in Article 20 TFEU. 

In brief, the facts of the case involve Mr Dereci, the first named applicant, a Turkish national who arrived in the Member State without permission in 2001 and unsuccessfully applied for asylum. He then married an Austrian citizen in 2003 and had three children, all citizens of the Union and all still minors. Mr Dereci did not enjoy permission to work and reside in the State and his spouse was reliant on state welfare payments to support the family. The Union citizens had not exercised their right of free movement and resided in Austria throughout.

The question being determined by the Austrian courts was whether Mr Dereci had a right of residency in Austria. In order to determine this, a preliminary reference was made to the Court of Justice asking, in summary, whether Article 20 TFEU precludes a Member State from refusing a national of a non-member country – whose spouse and minor children are Union citizens – residence of that Member State even where the Union citizens are not dependent on the national of the non-member country for their subsistence. 

In its decision, the Court firstly notes that the ‘free movement directive’, Directive 2004/38 does not apply to the situations at issue because the beneficiaries have not exercised their rights of free movement and continue to reside in Austria. 

The Court then goes on to consider whether the Union citizens may rely directly on the provisions of the Treaty itself concerning citizenship of the Union. The Court notes that such reliance does not require an exercise of free movement and cannot be viewed as purely internal and untouched by EU law, stating at paragraph 61: “the situation of a Union citizen who, like each of the citizens who are family members of the applicants in the main proceedings, has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation”.

 

The Court reiterates as stated in Zambrano, that citizenship of the Union is intended to be the fundamental status of nationals of the Member States and finds that as nationals of a Member State, family members of the applicants in the proceedings enjoy and may rely on their Union citizen rights under Article 20(1) TFEU, including against their Member State of origin, in this case Austria. 

Returning again to the wording used in Zambrano, the Court finds that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of the status. There is seemingly an obligation on the Member State to observe the genuine enjoyment of the substance of rights as a Union citizen.

So what then, qualifies as genuine enjoyment of the substance of those rights?

The Court here refers again refers to the logic of Zambrano: denial of the genuine enjoyment of the substance of the rights refer to “situations in which the Union citizen has in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.” Economic reasons, or desire to keep a family together in the territory of the Union, are not found here to be sufficient reason without prejudice to the question of whether the protection of family life is threatened.

With respect of the protection of family life, the Court refers to the protections afforded by Article 7 of the Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights. The Court notes the obligation on the Member State to observe the right to respect for private and family life but does not elaborate greatly on how those protections may apply in the situations referred. The Court states that should the referring court where it considers that the situation is covered by European Union Law, it must consider Article 7 of the Charter and if it considers that the situation is not covered, it must undertake an examination under Article 8 of the ECHR. Either way, an examination of the right to family and private life is necessary but there is no guidance offered by the Court on where such family protections rank in the genuine enjoyment of the substance of Union citizens rights.

  

The Court then concludes with respect of the question referred:

“In the light of the foregoing observations the answer to the first question is that

European Union law and, in particular, its provisions on citizenship of the Union, must be

interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.”

The decision has therefore provided some clarity on the circumstances in which a non-national may rely on the rights of a Union citizen spouse or child: the basic premise is that the Union citizen must not denied the genuine enjoyment of the substance of their Union citizen rights and can rely on the citizenship provisions in the Treaty directly, despite not exercising their free movement rights.

However, the decision appears to be lacking in detail on the circumstances in which there is likely to be a denial of genuine enjoyment of the substance of those citizenship rights enjoyed by the Union citizen. On the one hand, it appears that the Court has given some leeway to the Member State to refuse a third country residence where their arguments for the rights of residence centre on convenience, economic reasons and a wish to keep the family together. A real threat of relocation outside the Member State and the Union as a whole must be established. However, on the other hand, the Court spells out that it is incumbent on Member State to examine family and private life protections and where spousal ties and relationships with minor children are at question, it appears that such protections may weigh in favour of a right of residence.

We intend to further digest this decision and post updates on its likely impact here in Ireland. As always, we welcome any question or comments you might have.

Brophy Solicitors

16.11.11