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by DDr. Philip Czech, Senior Scientist at the Austrian Human Rights Institute, University of Salzburg

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For a long time, the European Court of Human Rights showed great respect for state sovereignty in the field of migration and was very reluctant to affirm a right of aliens to enter a Convention State to reunite with family members living there. Only in very rare cases has the Court found violations of the European Convention on Human Rights when migrants or refugees have been denied reunification with their children or spouses in the state of residence. However, recent case-law points to an increasing shift from respect for states’ prerogatives in the field of immigration to a strengthening of the human rights of aliens. On the one hand, the Court has adjusted its approach under Article 8 ECHR giving increased weight to the interests of refugees and beneficiaries of subsidiary protection to be reunited with their loved ones (1) and on the other hand, applicants have been successful in utilising the Article 14 prohibition of discrimination to claim a right to family reunification (2).

The rising influx of people seeking international protection in Europe has led to efforts among some European states to reduce their attractiveness as countries of refuge. One of the restrictions for refugees and beneficiaries of subsidiary protection concerns their right to family reunification. Led by the assumption that the majority of those who are granted international protection will also attempt to bring their family members, many refugee destination countries have tightened the requirements for family reunification (cf Commissioner for Human Rights, Time for Europe to get migrant integration right, at page 13).

In Austria, for example, the amendments of the Asylum Act that entered into force on 1 June 2016 bring along two major restrictions: refugees who apply for family reunification now generally must prove that they have adequate accommodation, sickness insurance and stable and regular resources (cf Article 7 Family Reunification Directive) unless the application is submitted within three months from the date of granting of refugee status. Exceptions apply for unaccompanied minors and in cases where family reunification is required by Article 8 ECHR. The second amendment concerns beneficiaries of subsidiary protection. They can only apply for family reunification three years after the grant of international protection. As a consequence, unaccompanied minors who have already reached the age of 15 when their asylum proceedings are terminated will no longer be able to apply for family reunification at all as under the Austrian Asylum Act the definition of “family member“ eligible for reunification does not include children aged 18 or older.

These developments give rise to the question of what limitations are set by recent Strasbourg case-law to these restrictive trends. Therefore, the following contribution shall give an overview on its implications for family reunification of refugees and persons enjoying subsidiary protection status.

1. A right to family reunification for refugees under Article 8 ECHR?

According to the established case-law of the ECtHR, Article 8 does not guarantee a right to family reunification. The following statement can be found in practically every judgment on this issue: “Where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunification on its territory.” (recently Biao v. Denmark, Jeunesse v. the Netherlands, Tuquabo-Tekle and Others v. the Netherlands). However, this statement does not prevent the Court from finding violations of the right to respect for family life in cases where family reunion has been denied.

Recent judgments indicate a shift in the Court’s approach. Whilst in earlier judgments an obligation to accept family reunification seemed to be assumed if this was the only way to (re)establish family life (Gül v. Switzerland, Ahmut v. the Netherlands), it was regarded as sufficient in later cases that this was the most adequate way to family life (Jeunesse v. the Netherlands, Tuquabo-Tekle and Others v. the Netherlands). This approach comes down to a weighing of the competing interests. Relevant considerations are: the responsibility for the family members’ separation, nationality and residence status of the persons concerned, the extent of the ties in the Contracting State and in the country of origin, and whether there are insurmountable obstacles preventing the family from living in their country of origin. Where children are involved, their best interests must be taken into account and must be given special weight according to Article 3 of the Convention on the Rights of the Child. In the cases where the ECtHR has assumed a right to family reunification, there were “insurmountable obstacles“ or “major impediments“ preventng the family from living together in another state. Most commonly, the Court has found such obstacles to exist when there were other children living in the Contracting State, who could not be expected to leave this state either due to the firm bonds established there or due to their family ties to other persons living there (cf Jeunesse v. the Netherlands, Sen v. the Netherlands, Tuquabo-Tekle and Others v. the Netherlands).

Insurmountable obstacles preventing return to the country or origin can regularly be assumed in the case of refugees and beneficiaries of subsidiary protection. As long as the risk of persecution or of suffering serious harm persists and as long as there is no third country where the family could live together (typically the spouse’s home country), the weighing of interests should generally result in the acceptance of a right to family reunification in the Contracting State, especially where children are concerned and as long as the family relationship has already existed before the flight. The Strasbourg Court has only had a few opportunities to address this issue so far. The only three judgments on the family reunification of refugees focused on procedural flaws and findings that Article 8 was violated resulted from the length of the proceedings for family reunification and the difficulties the applicants were confronted with in proving their relationship to their children (Tanda-Muzinga v. France, Mugenzi v. France, Senigo Longue v. France). Nevertheless, these verdicts lead to some important conclusions that go beyond the procedural obligations resulting from Article 8. As the ECtHR made clear in Tanda-Muzinga v. France, the arrival of the applicant’s wife and children, who were themselves refugees in a third country, had been the only means by which they could resume family life together. The Court pointed towards the vulnerability of refugees and stressed that it was therefore necessary for them to benefit from family reunification procedures that are more favourable than those provided for other migrants. Moreover, it referred to Article 10 of the Convention on the Rights of the Child which provides that applications for family reunification should be dealt with “in a positive, humane and expeditious manner”. With regard to evidence of family relationships, the Court held that the authorities are obliged to display a flexible approach.

Although the Strasbourg case-law in this area is still too sparse to be conclusive, there is a clearly noticeable trend towards a more liberal approach. As the latest judgments of the Grand Chamber show, family life can overcome the principle of state sovereignty if there are major obstacles hindering family life in the country of origin. As refugees and beneficiaries of subsidiary protection can hardly be expected to return, the Contracting State will frequently be obliged to allow children and spouses to join them on its territory.

2. Family reunification and the right not to be discriminated against

In 2016, the ECtHR has delivered three judgments finding violations of Article 14 ECHR in conjunction with Article 8 because of discrimination in the field of immigration law. Pajić v. Croatia concerned discrimination against a same-sex couple regarding family reunification (see the blog post by Ana Rita Gil and Susana Almeida: Family reunification for same-sex couples: a step forward in times of crisis – comments on the Pajić ruling of the ECtHR); in Novruk and Others v. Russia the Court found a violation of Article 14 because of the exclusion of foreigners from Russian territory based on their HIV-positive status; and in Biao v. Denmark the difference in treatment of certain categories of Danish nationals regarding family reunification was scrutinised by the Grand Chamber.

It is not a big surprise that the Court found violations of Article 14 in conjunction with Article 8 in Pajić and Novruk, as differences in treatment on account of sexual orientation or health can hardly be justified in contemporary democratic societies. But the implications of these judgments go far beyond the rights of homosexual couples or people living with HIV. They reveal the potential of the Article 14 prohibition of discrimination to influence the family reunification regime. First of all, these judgments make clear that national legislation on family reunification must be measured against the standards of Article 14, as Article 14 is applicable to the right to respect for family life. Secondly, the prohibition of discrimination also extends to those additional rights which the State has voluntarily decided to provide. As soon as the legislator grants certain categories of foreigners (or of own nationals) a right to family reunification, any exclusion of other categories who are in an analogous, or relevantly similar situation demands an objective and reasonable justification. Thirdly, the ECtHR once again (cf Bah v. UK and Hode and Abdi v. UK) reiterated that differential treatment based on nationality or immigration status (be it the foreigner’s own status or that of his or her family member) amounts to differential treatment based on a “status” within the meaning of Article 14, and can therefore amount to prohibited discrimination.

Whether or not different treatment of certain categories of migrants or refugees will sustain the ECtHR’s scrutiny depends on the margin of appreciation enjoyed by the Member States. This margin of appreciation is generally wide in immigration matters. However, it will be considerably narrowed if the difference in treatment depends on a problematic reason such as race or ethnic origin (Biao v. Denmark), health (Novruk and Others v. Russia), gender (Abdulaziz, Cabales and Balkandali v. UK) or sexual orientation (Pajić v. Croatia). On the other hand, the margin of appreciation will remain wide if the difference is based on immigration status. Nevertheless, objective reasons to justify the difference in treatment are always required.

This case-law also supports the harmonisation of subsidiary protection status and refugee status. Although the Recast Qualification Directive has enhanced the situation for beneficiaries of subsidiary protection regarding family unity, they still do not benefit from the Family Reunification Directive and are still treated less favourably than refugees in many Member States. According to the Strasbourg Court’s logic, any difference in treatment in this regard needs an objective and reasonable justification. Applying the criteria mentioned above, there can be no doubt that Article 14 applies in conjunction with Article 8, that the difference in treatment is based on a “status” for the purpose of Article 14 (refugee status on the one hand and subsidiary protection on the other) and that both groups are in a relevantly similar situation as their desire to be reunited with their loved ones does not depend on whether they left their home country for reasons of persecution relevant under the Geneva Convention or whether they did so for reasons that make them qualify for subsidiary protection. If a state grants refugees a right to family reunification under certain conditions – be it in fulfilment of its obligations arising from the Directives or beyond – it must grant the same rights to beneficiaries of subsidiary protection unless there are good reasons not to do so. The mere fact that states are obliged to grant such rights to refugees under European Union law can not in itself justify the exclusion of people granted subsidiary protection from also enjoying these rights (cf Hode and Abdi v. UK). Whether the purportedly temporary nature of this form of international protection suffices as a justification, can be doubted. The nature of most contemporary armed conflicts indicate that those fleeing from indiscriminate violence will be unable to return in the foreseeable future.

Conclusions: towards more EU harmonisation?

Although the ECtHR still shows respect for state sovereignty in matters of immigration, its latest case-law suggests that in spite of this, national legislators cannot turn a blind eye to human rights law when it comes to family reunification, especially regarding refugees and beneficiaries of subsidiary protection. When this is the only viable way to reunite a foreigner with his or her family due to insurmountable obstacles hindering return to the country of origin, the state may be under an obligation to grant his or her children and spouse entry and residence on its territory. Of even greater impact on national legislation is the prohibition of discrimination. If a state grants certain categories of persons a right to family reunification under more favourable conditions than other categories, there must be objective and reasonable grounds to justify this difference in treatment. Therefore, the Strasbourg case-law has the potential to effectuate an upward harmonisation in EU law.