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by Ana Rita Gil (FDNUL/OMNIA) and Susana Almeida (IPL) 

Logo_fdunl_OrigIPL instituto politecnico de Leiria

The ECHR has again showed that the principles of effectiveness of protection of rights and of evolutive interpretation do not cease during “times of crisis”. When EU is facing the biggest migratory influx since the Yugoslavia War, the Court reinforced the protection that shall be afforded to migrants’ right to family reunification, affirming that such right must encompass same-sex couples. In the Pajić ruling it declared, on one hand, that same-sex unions should be considered as family life for the purposes of Article 8 ECHR. On the other hand, it put an end to the debate on whether the concept of family for immigration purposes would encompass such unions. However, even if its findings represent a step forward on what regards protection of migrant’s human rights, they do have some limitations, as an actual right to family reunification is yet to be recognised.

A step forward regarding the concept of family

The facts of the case concern a refusal of a family reunification request made by a woman from Bosnia and Herzegovina, Danka Pajić, in order to be reunited with her female partner, Ms D.B., with whom she had been in a relationship for two years, and with whom she wanted to establish a household and start a business. National authorities dismissed the applicant’s request with a summary reasoning indicating that the relevant requirements under the Aliens Act had not been met. In particular, domestic Courts claimed that union between two same-sex persons could not be considered as marriage or an extramarital relationship. Since family reunification was allowed for unmarried different sex partners, the applicant alleged discrimination on the grounds of her sexual orientation in obtaining a residence permit in Croatia, under Article 14 taken in conjunction with Article 8 of the ECHR.

The Court indeed achieved the conclusion that Article 8, read together with Article 14, were breached. The Court did not follow the State’s claims that it was within its margin of appreciation to decide how to construe the concept of family, or that same-sex relationships were not in a comparable situation to unmarried different-sex couples.

Following its latter jurisprudence, the Court held that, just like differences based on sex, differences based on sexual orientation required “particularly convincing and weighty reasons” by way of justification – which were not present in this case. Thus, it claimed that where a difference in treatment is based on sex or sexual orientation the State’s margin of appreciation is narrow. Moreover, and grounding its reasoning on the principle of evolutive interpretation, it affirmed clearly that same-sex unions should be considered as family life. It took also in consideration that a considerable number of Member States had given legal recognition to same-sex couples and that certain provisions of European Union law also reflect a growing tendency to include same-sex couples in the notion of “family” (strongly criticising this finding, see the opinion stressed at the Agenda Europe Blog).

This reasoning is clearly in line with the continuous effort of the Court towards laying down and introducing in the Member States’ systems the principle of non-discrimination on the grounds of “sexual orientation”. Feeling the pulse of the European society, the Court has in the last years brought this principle namely to the Family Law field, with regard to parental rights (Salgueiro da Silva Mouta v. Portugal ), tenancy rights (Karner v. Austria), adoption (E.B. v. France), social protection (P.B. and J.S. v. Austria), rules on child maintenance (J.M. v. the United Kingdom) and now family reunification. This effort has been without a doubt decisive in the construction of a European Family Law more compassionate to the homosexuals’ rights and interests and visibly based on equality.

Until 2010, the conventional organs peremptorily denied the recognition of long-term same-sex relationships as creating “family life” under Article 8, arguing that “despite the growing tendency in a number of European States towards the legal and judicial recognition of stable de facto partnerships between homosexuals, this is, given the existence of little common ground between the Contracting States, an area in which they still enjoy a wide margin of appreciation”. The first cases where we can find this reasoning were precisely raised by immigrants (see, mutatis mutandis X. and Y. v. the United Kingdom and Z.B. v. the United Kingdom). The question as to whether same-sex de facto couples would fall within the scope of “family life” was finally solved in the case Schalk and Kopf, where the Court considered “it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy ‘family life’ for the purposes of Article 8”. The Court maintained this ruling in the present case and the obiter dictum regarding the trend of European Union provisions on considering same-sex couples as family is clearly a supporting argument of the consensus communis and a way of confirming that this status will no longer be taken away from same-sex couples by this organ (§64).

The Court further explained in Vallianatos that there can be no basis for drawing a distinction between stable same-sex couples who live together and those who do not, since the fact of not cohabiting does not deprive the couples concerned of the stability which brings them within the scope of family life within the meaning of Article 8. In the case, the fact of not cohabiting with D.B. would not deprive the applicant’s relationship of the stability which would bring her situation within the scope of family life.

In fact, in the process of construction of the concept of “family life” under Article 8, the Court has held that this concept may encompass de facto family ties where the parties are living together outside of marriage as long as the ties are sufficiently close and effective. As the Court often stresses, several relevant factors may be considered in order to demonstrate that the relationship invoked by the applicant has sufficient constancy to create “family life”, e. g., whether the couple lives together, the length of their relationship, whether there are elements of financial and/or psychological dependency involving more than normal emotional ties (see Quintana Zapata v. Spain and Emonet and Others v. Switzerland). Therefore, according to the Court, the effectiveness of interpersonal ties criterion may be fulfilled by other factors besides cohabitation. In this case, the applicant regularly travelled to Croatia, spending long periods of time together with D.B. and, thus, there were sufficiently close interpersonal ties that fall within the scope of “family life” under Article 8.

In what regards the application of the prohibition of discrimination, the Court affirmed that the applicant’s situation was comparable to that of unmarried different-sex couples applying for a residence permit for family reunification – for whom the Croatian legal system recognised the right at stake. Accordingly, the Court considered that by tacitly excluding same-sex couples from its scope, the Aliens Act introduced a difference in treatment based on the sexual orientation of the persons concerned.

Not far from the findings of the case X. v. Austria, the Court further clarified that very convincing reasons must be given to justify the difference in treatment of de facto same-sex couples and de facto opposite-sex couples in order not to breach the Convention. Nevertheless, this judgment maintains untouched the thorny issue of the different treatment of de facto same-sex couples and de iure opposite-sex couples which was addressed, for instance, in the case Gas and Dubois v. France, regarding the second-parent adoption, as well as in Schalk and Kopf v. Austria, concerning the same-sex marriage recognition. In fact, the Court makes it clear in this case that “that there is no need for it to examine whether the applicant was in a situation which is relevantly similar to that of a spouse in a married different-sex couple applying for family reunification” (§71). Therefore, for the time being, this Court will continue to grant a special status to marriage.

 A step forward in immigration law case-law

If the above considerations regarding discrimination might not be surprising, following the ECHR case law on the issue, its application on the immigration context stands as particularly important. In fact, this case would encompass a triple challenge to the margin of appreciation doctrine: the concept of “family life”, the immigration policy, and finally, the positive obligations doctrine where family reunification discussions have always been contextualized.

However, despite the overall result of the ruling – which can be summed up in the premise that if States choose to recognise a right to family reunification, they have to recognise it both to heterosexual and homosexual couples – the Court remained faithful to its traditional approach in some aspects.

Following the defendant State plea, the Court began by acknowledging that a wide margin of appreciation is usually allowed to the State when it comes to matters of immigration, even when family life is concerned. It confirmed that “Article 8 does not include a right to settle in a particular country or a right to obtain a residence permit”. The Court kept its consideration that it is for the State to decide whether to recognise a right to family reunification, as can be read in the following passage: “even in cases in which the State that has gone beyond its obligations under Article 8 in creating a right it cannot, in the application of that right, take discriminatory measures within the meaning of Article 14”. Thus, in what regards the recognition of a positive obligation to family reunification, the Court remained anchored to its traditional view under the ECHR.

Nonetheless, this comment does not undermine the significance of the ruling on imposing limits to immigration policies. Pajić puts an end to some doubts on what concerns, precisely, the concept of family for family reunification purposes. Academics claimed that the principle of prohibition of discrimination would impose that same-sex partners should enjoy family reunification at least in countries that recognise same-sex marriage or civil partnership. The findings in the present ruling are broader. In fact, national law treated homosexual unions differently and these unions were not considered as “family relationships”. The ruling’s most impressive achievement corresponds precisely with the autonomy in relation to domestic law: irrespective of the choice made internally on the rights that shall be afforded to homosexual families, if the State chooses to recognise a right to family reunification, then it shall recognise it for both heterosexual and homosexual couples. That is to say, irrespective of legal internal options regarding equality between these two types of couples, in what regards immigration law, non discrimination is mandatory. Therefore, a domestic law that excludes unmarried same-sex couples from applying to a residence permit while affording that right to unmarried opposite-sex couples must be amended, otherwise the spectrum of a condemnation in Strasbourg will be overhanging.

One should also highlight that the Court called upon EU law, namely to the EU Charter of Fundamental Rights and to the Directives 2003/86/EC and 2004/38/EC, quoting the provisions that call for non discrimination on the basis of sexual orientation and emphasizing the right to family life. It is an interesting reference, which shows that the Court is also aware that those to whom EU law is applicable may benefit from a potentially higher level of protection. This methodology is not entirely new (see, amongst others, the ruling Aristimuno Mendizabal v. France), but is very important in a conjuncture where EU immigration law itself is faced with a very demanding test to its effectiveness due to the current migratory crisis. Obligations to provide for family reunification have now been strengthened, since after this ruling Member States may not exclude same-sex couples from the right to family reunification guaranteed by EU law. This ruling also put an end to the doubts concerning the personal scope of the Directives mentioned above, since their provisions on marriage and partnerships were neutral regarding the couple’s gender. After Pajic’s ruling, no doubt remains that the family reunification rights foreseen in such legal instruments are applicable to same-sex couples.

Finally, this ruling also represents good news to those that are fleeing from persecution on sexual orientation grounds. The ECtHR had already confirmed that these people could be protected against refoulement under Article 3 ECHR. This new ruling opens the possibility for them to ask for being reunited with their partners who may have stayed behind in the country of origin.

Conclusions

The Pajić ruling is a decision strongly and decisively grounded on the principle of non-discrimination on sexual orientation grounds. However, it sets the clear message that, in what concerns immigration, the same concept of family and the same threshold of prohibition of discrimination are applicable. Thus, even without recognising, a se, a right to family reunification, this case-law will represent a strong limitation to national immigration – and asylum – policies. Moreover, it showed that the principle of evolutive interpretation remains applicable, leading to widening the scope of protection of Human Rights, even where States could wish a more precautious approach due to the political conjuncture.

Pajic’s ruling findings are extremely important in the context of the present “migratory crisis”. In fact, some authors claim that the EU answers for overcoming the current migratory challenge must be complex and multi-faced, encompassing, inter alia, the reinforcement of family reunification right to refugees or persons protected under subsidiary protection, and the inclusion of a broader range of family members. Any policy aimed at responding to those claims must necessarily take into account Pajić findings.