Discuss whether Article 8 ECHR is destined to fail to protect migrants because the conceptual framework is dictated by concepts such as “state sovereignty”, the “core or nuclear family” and “integration”.’

Article 8’s protection of the right to a private and family life has been relied on by migrants facing deportation or who hope to be reunited with family. However, in assessing if an interference of ‘private and family life’ is justified, the ECtHR tends to use an insular viewpoint of ‘social integration’ and ‘core or nuclear family’, failing to recognise the reality of many migrants. Moreover, as Article 8 is a qualified right, the ECtHR has placed weight on ‘state sovereignty’ when balancing Article 8 rights, therefore limiting protection for migrants. This is evident in the domestic law, and it is thus clear that Art 8 protection for migrants is not only destined to fail but has actually failed to protect these groups. 

Destined to fail: ‘integration’ 

The requirement of social ‘integration’ in Üner considers factors such as links to the country of nationality, language ability and integration in the labour market. This suggests that the weaker the ties with the country of nationality, the more likely an individual will have ‘integrated’ to the host country, thus interferences with their Art 8 right will be harder to justify. This creates a seemingly unidirectional concept of migration, where an individual exclusively belongs to either their host country or their country of origin. Murphy argues that this is not the reality, even second-generation immigrants often retain their nationalities, and this completely overlooks individuals with dual-nationalities who may be bilingual and identify with multiple cultures. Farahat highlights that this concept of migration discriminates against every practice where migrants try to preserve ties to their language and culture. She notes that every link connecting the migrant to their country of origin is another justification for contravening Article 8. This can be seen in Baghli; the fact the individual occasionally went on holiday to the origin country and could speak Arabic was sufficient to find that his deportation could be justified. 

However, deportation has occurred even without any ties to the ‘origin’ country. In Pormes, the Court justified deportation by saying the individual could just learn the new language, and in Azerkane, the individual was born in the host state, yet still deported. There are surely few greater demonstrations of being socially integrated into a country than having lived there since birth, yet even this is not enough to protect Art 8 rights. Thus it is arguable that the standard of integration that the ECtHR is looking for is impossibly high - even on the facts of Üner, living in the Netherlands since aged 12, with a partner and two children of Dutch nationality, did not satisfy the social integration standard. This particular view of migration, focused on full social integration and severing ties with origin countries, undermines the purpose of Article 8 in protecting migrants, as ultimately, the ECtHR has provided a very large scope for host states to justify deporting a migrant. 

Destined to fail: ‘core or nuclear family’

The ‘family life’ aspect of Article 8 has been conceptualised narrowly in cases like Al-Nashif and Slivenko, effectively reducing the term to ‘core or nuclear family’ of parents and minor children. Peroni notes that this privileges a particular cultural view which carries ‘negative egalitarian implications’ and is out of step with cultural diversity and pluralist societies. This is evident in Onur v UK which found that adult children and parents do not automatically have ‘family life’, so where a claimant ‘can’ possibly relocate, no matter how difficult, they should do so. 

In family reunification cases, the concept of ‘core family’ prevented reunification between an ill elderly woman and her daughter in Senchishak v Finland, despite Judge Kovler’s criticism that this narrow approach fails to account for many European families whose ‘extended’ family is a central part of their family life. However in other cases, even minor children within the ‘core family’ framework have been excluded if they could continue life from a distance (Gül v Switzerland). The proportionately assessment of moving children to the country of their parents, instead of this being a fundamental right, demonstrates that even within the ‘core or nuclear’ family framework, migrant children will be denied entry if there is even the slightest possibility that they can continue to live separately from their parents. 

On the other hand, Thym notes that the ‘family life’ restrictions are less impactful given that the Court is willing to use ‘private life’ to find a breach on the same facts, such as in Slivenko. However, as evident above, the ECtHR often requires impossibly high standards of social integration to satisfy the private life limb. Therefore, in deportation cases, the ECtHR is willing to send an individual to their ‘origin’ state despite having very little connection to that state, whilst in family reunification cases, the Court may refuse children entry to live with their parents, despite having a very strong family connection to that state. Migrants are thus treated with a double standard that does not apply to nationals, illustrating how the narrow conceptual frameworks of Art 8 fail to protect these groups. 

Destined to fail: ‘state sovereignty’ 

Finally, the concept of ‘state sovereignty’, which recently re-arose in Unuame, has given states large margin of appreciations, further endangering the rights of migrants in favour of populist legislation. Dembour believes that the Court’s default starting point is the assertion of state sovereignty instead of the right at stake. This is in contrast with other Convention rights which put the right of the individual before the state. On the other hand, Nafziger would argue that the Court actually puts the right first, suggesting there is an obligation under customary international law to admit if the migrant poses no risk. However Nafziger’s position is questionable given the case law; the judgement in Unuame explicitly starts from the position that states have the power to control immigration (paragraph 70). 

Thus, the Unuame approach threatens the rights of many migrants at the expense of state sovereignty, and the impact of this can be seen in the UK. The government have limited Art 8 in the Immigration Act 2014 s.19, which allows for the automatic deportation of serious offenders unless there are very compelling circumstances, and medium offenders unless their right to private or family life is breached. However, as is clear from ECtHR jurisprudence, the thresholds to breach these is very high, and even higher for ‘compelling circumstances’. Strict requirements are also furthered by s.117B of the Nationality, Immigration and Asylum Act which requires the consideration of financial independence and the ability to speak English, although ‘little weight’ is given to a private life. 

For reunification, Appendix FM to the Immigration Rules 2012 provides family routes to enter or remain. Although there are harsh requirements to qualify, like stringent income and language requirements, these have been held as compatible under the ECHR. The difficulties of this are evident in Ribeli; a mother with a degenerative disease could not join her daughter (a UK citizen) as the daughter could travel to South Africa if needed. This shows the dismissal of migrants rights even for second-generation migrants who are assumed to be able to just return to where they came from. The ECtHR ‘state sovereignty’ approach thus has enabled the domestic framework to lawfully treat migrants as outsiders, ultimately furthering anti-migrant rhetoric in the UK. 

To conclude, Article 8 fails to protect migrants as the ECtHR continues to place significant emphasis on ‘state sovereignty’, enabling anti-immigration domestic laws to disregard the rights of these already underrepresented groups. The lack of protection is mirrored in the ECtHR itself, where one-sided conceptions of ‘core family’ and ‘integration’ disproportionately disadvantage migrants. The ECtHR needs to reinterpret the conceptual framework to account for differing cultures, whilst lowering the margin of appreciation given to states where vulnerable groups are at risk of being deported or denied the right to enter. 

The writer, Simrhan Khetani, is a law graduate from the University of Cambridge and future trainee solicitor at Akin Gump LLP. She has a keen interest in Equity and Trust law and will be pursuing this interest in her work as a solicitor.

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