EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

By Jessica Schultz, Senior Researcher, Chr. Michelsen Institute and Jens Vedsted-Hansen, Professor Emeritus, Aarhus University

 

In Sweden, Denmark and the United Kingdom, recent legislative changes and proposals have directly and indirectly challenged Article 8 of the European Convention on Human Rights (ECHR), which protects the family and private life ties established in a contracting state. Sweden has abolished access to permanent residence for refugees and other persons with international protection, limited access for others through ‘good character’ provisions and is considering the revocation of permanent residence permits already granted. In Denmark, recently passed legislation as part of its ‘expulsion reform’ mandates a strong presumption that foreign nationals convicted of serious offences should be expelled to ensure ‘the right balance’ between state interests and individual rights under Article 8 ECHR. The UK government, meanwhile, is seeking to prescribe more narrowly which relationships and attachments count under Article 8 ECHR and limit the weight they should receive. These initiatives are undertaken against the backdrop of concerted efforts to influence the scrutiny applied in migration-related cases by the European Court of Human Rights (ECtHR).

The right to private and family life as a limit on migration control

Article 8 ECHR does not confer a general right on a non-citizen to enter or remain in a particular state. It nevertheless requires interferences with private and family life to be lawful, to pursue a legitimate aim, and to be necessary and proportionate. It is consequently relevant to removal proceedings following a criminal conviction and the loss or absence of lawful status (including the cessation of refugee status). Family reunification cases are assessed under similar principles. The ECtHR applies an individualized proportionality assessment in which the state interest in immigration control and public safety must be weighed against the individual and family interests affected by the decision.

In leading judgments including Üner (§§ 57-60) and Maslov (§§ 71-73), the ECtHR has set forth the relevant criteria to be balanced, including: the severity of (any) misconduct, the time elapsed since the offence, and the age of the offender; the length of residence; the nationalities of the various persons concerned; family relationships; children’s best interests and the solidity of social, cultural and family ties with the host country and with the country of destination. Savran v. Denmark (§§ 182 and 184) confirmed that medical factors, as well as the duration of an entry ban, may also be relevant.

These are the criteria applying to migrants with a so-called ‘settled’ legal status, i.e. people with lawful residence in a contracting state during a certain period (cf. B.K v. Switzerland). For migrants with ‘precarious’ residence, usually because of their unlawful presence, the test is skewed further in the expelling state’s interest. In these cases, ‘exceptional circumstances’ must be present for expulsion to violate Article 8 (Jeunesse v. The Netherlands). Certain states, including the UK and Norway, have argued that temporary permits are also a form of ‘precarious’ residence. This is why the current ‘temporary turn’ in the asylum and immigration policies of the states we examine – in which a predictable path to settlement has been replaced by time-bound permits subject to regular review – has, if accepted by the ECtHR, potentially important repercussions for the scope of Article 8 protection for long-term lawful residents.

This post examines how the proposed and new reforms aim to recalibrate the proportionality assessment. In Denmark, this is done by making serious criminality presumptively decisive and reducing the weight attached to social, cultural and family connections. The 2026 Immigration and Asylum Bill in the UK, meanwhile, expands the ‘public interest’ considerations to be taken into account – whether the person can support themselves, has ‘good character’, etc. – and further specifies that family and private life ties would literally have ‘no weight’ in cases where the person’s residence is or has been unlawful.

Following an analysis of these initiatives, the post turns to the legislation of legal precarity through limits on permanent residence. Drawing on the distinction described above between ‘settled’ and ‘precarious’ status, we look at how the abolishment of permanent residence for refugees in Sweden and new measures prolonging settlement in the UK could, in the absence of strong oversight, relegate long-term residents to second-tier protection under Article 8 ECHR. While the UK proposal is silent on the potential impact of prolonged precarity on Article 8 rights, Swedish drafters avoid engaging Article 8 by invoking and reinforcing technical distinctions between residence status and residence rights. In essence, they argue that it is not necessary to consider compliance with (all aspects of) Article 8 until an eventual removal decision.

1. Recalibrating the proportionality assessment

Denmark: Directly challenging the Strasbourg caselaw

The Danish expulsion reform concerns foreign nationals convicted of specified serious offences. As outlined in the explanatory remarks of the Bill amending the Aliens Act (in force as of 15 September 2026), the clear statutory starting point is that a person sentenced to at least one year’s unconditional imprisonment for aggravated violence, sexual offences, organized crime, migrant smuggling, drug crime or comparable serious offending should be expelled.

The government does not present the measure as repudiating the Convention. On the contrary, it emphasizes the importance of Denmark’s continued adherence to international conventions. Its argument is that a ‘better balance’ must be achieved within Article 8 to ensure the ‘population’s right to live in peace, freedom, security and safety’.

The Bill draws on a joint statement issued by 27 Council of Europe member states in December 2025 and the Chişinău Declaration adopted by all 46 member states in May 2026. The joint statement, as reproduced in the Bill, describes expulsion as the clear starting point for foreign nationals convicted of serious crime, regardless of whether they have established connections or family life in the host state. It calls for an adjusted balance under Article 8 under which social, cultural and familial attachments to the host country and the country of destination are given less weight.

Expulsion can be avoided only where ‘quite exceptional considerations decisively oppose it’ (our translation). This will principally occur where all the remaining criteria recognized in Strasbourg caselaw, apart from the nature and seriousness of the crime, unequivocally point against expulsion.

What does this do to the criteria established in leading Article 8 cases, including Üner, Maslov and Savran? Rather than identifying independent interests requiring evaluation, they would be aggregated into a residual category of ‘attachment’ capable of overcoming the presumption of deportation only in exceptional cases. Besides having no basis in public international law, such an approach obscures the legally relevant interests of others affected by a potential removal, including citizen children, spouses and other partners and dependent relatives. In addition, the ECtHR has pointed out clearly that no single factor among those relevant according to its well-established caselaw can be decisive for the outcome of the balancing exercise (Sharafane v. Denmark § 57).

The Danish government recognizes that the new approach is not securely established in existing Strasbourg jurisprudence. It expects the Court’s caselaw to develop and aims to be both catalyst and frontrunner in that development. The government reasons that the sought-after changes in Article 8 jurisprudence will only emerge if the Court is presented with cases challenging its previous caselaw. Thus, the legislation does not only pre-emptively rely on a doctrinal development, but it is explicitly designed to produce cases through which the Court can change its approach. In its reasoning behind this somewhat optimistic expectation, the Bill presents the joint statement of the 27 member states as the primary source of influence on the Court, whereas the Chişinău Declaration – the officially adopted Council of Europe instrument which is far more diplomatic and softer in its attempts towards ‘rebalancing’ the Court’s Article 8 scrutiny – is merely referred to as a follow up to the joint statement.

UK: Denying any weight to individual interests in some cases

Since 2014, the UK Parliament has directed courts on the application of Article 8 ECHR, including what factors to consider, how much weight to give to certain forms of private life, and the evaluation of cases involving people with criminal records. The UK Supreme Court has confirmed, however, that legislators cannot place decisionmakers in a straight-jacket that requires outcomes inconsistent with the Convention. Even though most successful cases must show ‘very compelling circumstances’ in the applicant’s favour, a wide range of circumstances are considered when deciding whether the threshold is met.

The Immigration and Asylum Bill 2026 aims to further restrict the scope for discretion. It delimits the concept of family life to exclude adults other than parents of minors or a cohabiting partner or spouse. Narrow exceptions may be made if there is an additional element of dependency beyond normal emotional ties. While this test already applies in practice, the new legislation signals a higher threshold for meeting it by specifying that financial dependence, incapacity requiring constant care and support, or the experience of war and trauma are not sufficient. While the 2014 rules stated that ‘little weight’ should be given to the private or family life of someone unlawfully present, the new provisions state that ‘no weight’ can be afforded at all (§ 117 AB). Further, in removal cases, children’s best interests cannot be decisive unless the child would have no access to education in the country of destination, serious problems integrating or experience ‘very significant and long-lasting adverse effects’. Despite the removal of any Article 8 protection from people who are unlawfully present, the UK Home Secretary expressed that in her view the Bill was compatible with the Convention.

 

2. Avoidance of Article 8 and the legal production of ‘precarious’ residence

Sweden’s reforms to permanent residence

Sweden’s recent reforms are situated in the previous government’s 2022 Tidö Agreement, which set out terms for cooperation between four parties on issues including migration. These reforms restrict family reunification, introduce new criteria of ‘good character’ for securing (and keeping) a residence permit, and sharpen citizenship requirements. Amendments in force as of July 12, 2026 also remove the possibility of permanent residence for targeted groups, primarily people with asylum, other protection status, resettlement and family members of the above groups. The rationale was set out in the 2025 proposal, ‘Phasing out of permanent residence permits and certain adjustments to the minimum level under the EU Migration and Asylum Pact.’  Marking a sharp shift away from the tradition of granting permanent residence to refugees either immediately (before 2016) or within a few years (post-2016), the new rules mean that individuals with protection needs have no access to permanent residence until and if they qualify for Swedish citizenship.

Meanwhile, a second proposal amending permanent residence permits for certain foreign nationals would open for the revocation of permanent residence permits already granted to people who originally came to Sweden for protection-related reasons. Following revocation, a new (temporary) permit may be granted based on continued protection needs, employment or strong attachments to Sweden. The proposal provides a narrow exception to the general rule of revocation – regardless of whether grounds for another permit exist – in certain exceptional cases. While being born or raised in Sweden, long residence, disability or advanced age would not alone be sufficient, one or more such factors may be taken into account as proof that an individual has developed ‘a very strong connection to Sweden’ and that dependency on a regime of temporary permits would be unreasonable. The example given was a long-term resident established in the Swedish labour market but without current employment for reasons beyond their control rendering them unable to meet the maintenance requirement for citizenship.

The Swedish drafters do not directly challenge Strasbourg jurisprudence. Instead, they contain the Convention issue by applying two strategies.

First, they emphasize the distinction between the withdrawal of permanent status and a potential removal. The proposal to amend permanent residence concludes that allowing permanent residence permits to be changed or revoked does not usually, on its own, engage the Convention. A subsequent removal decision, however, would need to be assessed for compliance with Article 8. In other words, the status itself is insulated (with narrow exceptions) from any question of compliance with Article 8. In addition to avoiding direct conflict, the drafters insist that the state’s interest in incentivizing integration justifies the proposed interference with residence rights. The assumption is that withdrawing (the possibility of) permanent residence would encourage people to fulfil the requirements (related to language, residence duration, ‘good character’, a clarified identity, and income) for citizenship instead. Such logic not only overlooks structural barriers to citizenship but also ignores factors relevant from both a rule of law perspective and existing jurisprudence under Article 8 ECHR. These include the loss of vested rights, interference with a person’s legitimate expectations of stay, and consequences of long-term legal uncertainty (Hoti v. Croatia, Sudita Keita v. Hungary, Ramadan v. Malta). Therefore, long-term temporary residence combined with uncertainty about the conditions of continued residence may in itself constitute an interference with Article 8 rights (eg. Aristimuño Mendizabal v. France).

Second, the Swedish measure potentially exploits a legal fiction embedded in the distinction drawn by Strasbourg between ‘settled’ migrants and those with ‘precarious’ status. Members of the latter category are less likely to succeed in claims brought under Article 8 in the absence of ‘exceptional circumstances’. While some states have argued that any status other than permanent residence is de jure precarious, the Court itself refers to a ‘formal residence status’ and has also critiqued ‘excessive formalism’ in this regard, implicitly recognizing that even people without legal residence may have a legitimate expectation of stay (Rodrigues da Silva and Hoogkamer v. The Netherlands).

Applied to the Swedish case, it could be argued that refugees, given the non-temporary nature of protection needs in most cases, have a particular right to rebuild their lives with a certain degree of security (eg. Refugee Convention, Arts. 2-34). This argument becomes even stronger when a person has acquired a ‘durable solution’ to their displacement in the form of permanent residence. A permanent resident is invited to organize employment, education, housing, relationships and family life on the basis that residence is no longer subject to regular review and renewal. Retroactively converting that residence status into a temporary one reverses the legal premise on which reliance was encouraged – and therefore demands an even stronger justification by the interfering state.

Extended routes to settlement in the UK

In November 2025, the UK government announced proposals for a new ‘earned settlement’ model which would significantly extend the period of probationary residence for most refugees and many other migrants. The proposal replaces the fixed 5-year route to Indefinite Leave to Remain (ILR) with a ‘time adjustment’ model. Accordingly, the standard baseline for most people would rise from 5 to 10 years, with the qualifying period moving further (up or down) depending on the circumstances. For refugees recognised through the asylum system, the starting point would be 20 years; eligibility for settlement after the standard 10 years could be retained for those who qualify by moving to the newly proposed ‘protection work and study route’. Refugees who entered the UK ‘unlawfully’, for example by small boat or concealed in a lorry, would be penalized (in potential conflict with the Refugee Convention’s Art. 31) with an additional 10 year wait, meaning that settlement would be accessible to some only after 30 years’ residence in the UK.

In line with current UK practice, the consequence of these longer periods of temporary residence is that private life interests under Article 8 ECHR may be treated with less weight than would be the case if they were legally ‘settled’. The future of these proposals is uncertain given the broad concerns expressed by stakeholders during the hearing process. The House of Lords Justice and Home Affairs Committee, for example, advocates a return to the original 5-year baseline for all and proposes instead that people with ILR are excluded from welfare benefits for an additional period of time.

 

Conclusion

Although the ripples of policy diffusion are clear, the Swedish, Danish and British reforms do not constitute a coordinated project. While they are primarily concerned with refugees (and other persons with international protection) and people with criminal records, they rely on distinct legal approaches.  Each seeks, directly or indirectly, to reduce the legal significance of residence accumulated over time.

The Danish act compresses distinct interests related to duration of residence, legal certainty, rehabilitation and social ties into a generalized category of ‘attachment’.  The UK, meanwhile, limits the scope and weight of interests considered under Article 8, while making successful claims dependent on even more demanding tests of compelling or exceptional circumstances. Sweden proceeds more indirectly, drawing a sharp distinction between the revocation of a particular national residence status from a subsequent removal decision. At the same time, both Sweden and the UK legislatively construct migrant precarity by denying refugees the more robust protection afforded to ‘settled migrants’ who have obtained permanent residence.

Taken together, and considering the overall political environment in which Article 8 is applied, the ECtHR has an opportunity to underscore key principles crucial to ensuring that protection is not ‘theoretical or illusory’, but ‘practical and effective’. First, we would highlight the requirement of individualised assessments under Article 8. For people with a criminal background, the interest in public order requires an assessment of the person’s current threat to society. For others, the vague and generalized policy arguments that often accompany migration control should be scrutinized, notwithstanding pressure on the ECtHR not to do so – most obviously when a person actively contributes to society through work or voluntary activities. When it comes to finding the ‘right balance’ under Article 8, we have outlined the spectrum of interests embedded in the Court’s own jurisprudence. These include not only the length of residence, children’s best interests, age of arrival and so forth but also the legitimate expectations of stay that arise from, and enable, attachments formed over time.