ARTICLES 3 AND 8 ECHR   Page 3 Copyright Deirdre Fottrell  March 2005 - All rights reserved. No part of this document may be copied or used without the written permission of the author.

Continued 

Family and Private life in the immigration context

• Henao v Netherlands, E Ct HR (24^th June 2003)

“contracting states have the right as a matter of well established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens’

• Abdulaziz, Balkandali and Cabales v UK [1985]  7 EHRR 471

‘the duty imposed by Article 8 can not be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their choice of matrimonial residence and to accept the non national spouses for settlement in that country’

• Gul v Switzerland – Turkish father obtained residence permit on humanitarian grounds – W had severe health problems – 12 year old son refused permission to live in SZ – no violation of Article 8 – family could return to Turkey – hence could pursue family life elsewhere.

• Boutif v Netherlands [2001]

·    Was the interference in accordance with the law – means that it had a basis under domestic law and was sufficiently accessible such that its impact was foreseeable – likely to be the case in immigration cases – see Razgar

·    Is the interference necessary in pursuance of a legitimate aim – usually fits under Article 8 (2) – in relation to economic well being or national security.

·    Were the measures taken proportionate – this is the key principles once the interference has been established.

·    R v Secretary of State for Home Department (ex parte Mahmood) [2001] 1 WLR 840  – unsuccessful asylum seeker – entered the UK illegally – while awaiting the outcome of his claim – married and had two children – also worked in the Ukm – JR to the CA on the decision to remove following his unsuccessful application for Asylum

·        MR took the view that proportionality was a matter for the Secretary of State – however provided the following guidance on ECHR case law (para 49

a.   State has a right to regulate entry of non nationals into its territory

b.   Article 8 does not impose an obligation to respect the choice of residence of a married couple

c.    Removal of a family member where other family members are lawfully resident will not necessarily infringe Article 8 provided there are no ‘insurmountable’ obstacles to the family living together in the country of origin

d.  Article 8 likely to be violated by expulsion where the family has been long established in a state and it is not reasonable to expect family members to follow the expelled member

e.   Knowledge a the time of marriage that the rights of residence were precarious militates against a finding that an order expelling the spouse violates Article 8

f.     Whether interference with family rights is justified in the interests of controlling immigration will depend on the facts of the case and the circumstances prevailing in the State

 What constitutes an ‘insurmountable obstacle’ ? 

• See the approach of the ECHR in Boutif v Switzerland (2 August 2001)– Applicant was convicted of criminal offences and subsequently refused a residence permit – E Ct HR found a violation of Article 8 –

• Court indicated that the following guidelines should be considered

  • Length of an applicant’s stay in the country from which he is to be expelled

  • The applicant’s family situation – including length of marriage

  • Number and age of children

  • Seriousness of difficulties a spouse or children may encounter in the country of origin

The Court considers that the applicant has been subjected to a serious impediment to establish family life, since it is practically impossible for him to live his family life outside Switzerland. On the other hand, when the Swiss authorities decided to refuse his continuing stay in Switzerland, the applicant only presented a comparatively limited danger to public order. The Court is therefore of the opinion that the interference was not proportionate to the aim pursued.

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