A. Slivenko et al v Latvia

The Grand Chamber of the Court eventually granted autonomous human rights protection to the network of personal, social and economic relations under the heading of ‘private life’ in a judgment of 9 October 2003 on the application of Slivenko et al v Latvia.Footnote ¹⁶ It did, however, not limit the dynamic interpretation of the Convention to the autonomous protection of the foreigners' private life. Instead, it also re-defined the understanding of family life with a new focus on the ‘nuclear family’ of spouses and minor children (the ‘core family’ in the terminology of the ECtHR). More specifically, the applicants, a former Soviet army officer and his family which had lived in Latvia most of their lives, contested their deportation from Latvia after their claims for residence rights under the 1994 Russo-Latvian Treaty on troop withdrawal had been rejected. From an immigration law perspective, the case follows the well-established application of Article 8 ECHR to expulsion and deportation cases and does in that regard not require close attention. The important innovation of the judgment rather relates to the re-conceptualisation of family and private life within the meaning of Article 8 ECHR. Since the family was expelled collectively, the applicants' joint family life was not directly affected. Nonetheless, the Court concluded that the removal amounted to an interference with Article 8 ECHR:

Unfortunately, the reversal of prior case law is not spelt out in clear terms, but hidden behind superficial references to earlier judgments, omitted in the quote above, which contain language in this direction, but never departed from the original wide understanding of family life.Footnote ¹⁸ Similarly, the Grand Chamber eschews a clear distinction in its later judgment in Sisojeva et al v Latvia when it concludes that the applicants were able to exercise ‘their private and family life as protected by Article 8 of the Convention and interpreted in the Court's established case-law’.Footnote ¹⁹ From a dogmatic point of view such a clear distinction is indeed not mandatory, since family and private life are both equally protected by Article 8 ECHR and together constitute a single human right with one set of legal criteria for state interferences and their justification. But the systematic analysis illustrates that there is a need for a substantive distinction between the family life of the nuclear family and the private life of every human being which reflects different needs for protection and responds to the social phenomenon of irregular migration.

B. A Systematic Delineation of Private and Family Life

On closer inspection, the new distinction between the protection of the nuclear family and the private life of wider social relations should be welcome. It illustrates the readiness of the Court to interpret the Convention as a living instrument and take into account social changes, which have in recent years arguably reinforced the importance of the immediate family in European societies to the detriment of wider family relations, as any reader may assess from their own experience. Of course, this new delineation draws the criticism of ignoring the different social traditions of immigrants from African or Asian societies, where the individual and the nuclear family are often still firmly embedded in the network of extended family bonds.Footnote ²⁰ In special circumstances it may indeed be necessary to adopt a wider understanding of family life, as the Court has suggested for situations where the applicant shows a degree of personal dependence with relatives which amounts to de facto family ties.Footnote ²¹ But this extension of the family life beyond the nuclear family should be limited to exceptional situations with a focus on the nuclear family in regular circumstances.

It should be underlined that the restrictive new understanding of family life does not translate into a restriction of human rights protection, since it is complemented by the autonomous protection of wider social relations constituting the foreigners' private life, which had hitherto not been explicitly recognised by the Court. As a result, the long-term residence status now enjoys autonomous human rights protection independent of the family situation and the existence of formal bonds with siblings and parents, which had always been relied upon in the early case law on the expulsion and extradition of second-generation immigrants.Footnote ²² This is a considerable extension of human rights protection for any third country national born in a European reception State or having lived there legally (or illegally)Footnote ²³ for some time. On the basis of this new delineation the Court may in future develop further distinctions taking into account the different needs for protection of family and private life. Both are equally protected under Article 8 ECHR, but may be differently affected by immigration law.

The nuclear family is protected by Article 8 ECHR ratione materiae independent of the length of its existence, while the private life of a person only comes within its reach after the lapse of a certain time period and gains weight the longer a person has lived in a country and developed ‘the network of personal, social and economic relations that make up the private life of every human being’.Footnote ²⁴ This general definition of the private life ‘of every human being’ suggests that the Court will not embark upon a substantive analysis of the quality of the personal relations of a given individual and instead primarily rely upon the time criterion to determine the material reach of private life under Article 8 ECHR. Qualitative criteria such as the education, employment, non-reliance on social assistance, language skills or criminal offences will play an important role when considering the justification of restrictive measures by the Contracting Parties.

Thus, the effective protection of family and private life may lead to the development of different criteria for state interferences and their justification under Article 8(2) ECHR, including the proportionality test. The protection of family life primarily requires the co-habitation of the spouses with their minor children, be it in the host country of the applicant or abroad. Any state measure preventing the cohabitation of the family members will constitute an interference and require a justification, as confirmed by the existing case law on the expulsion and deportation of foreigners after a criminal conviction. The Court has so far developed the eight ‘Boultif criteria’ guiding the proportionality test in response to repeated criticism that the Court's case law lacked a coherent approach.Footnote ²⁵ These ‘Boultif criteria’ include the nature and seriousness of the criminal offence, the length of the stay in the host country, the time elapsed since the offence was committed and the conduct during that period, the nationalities of the various persons concerned, the applicant's family situation, whether the spouse knew about the offence when they entered into the relationship, the age of children, and the seriousness of the difficulties which the spouse is likely to encounter in the country of origin.Footnote ²⁶ When a foreigner was born in the host country or moved there in his young childhood, the Court limits its assessment to the three first criteria, thereby effectively extending the degree of protection granted to the person concerned.Footnote ²⁷

Of course, this balancing exercise is often difficult and has important implications for the foreigner involved, but from a legal dogmatic point of view the scales are relatively easy to identify (family unity versus sanction for criminal behaviour). In cases concerning the protection of private life, the judicial perspective however has to broaden its analysis to the general integration of the applicant into the host society. This is the logical consequence of the wide understanding of every person's private life, which is not limited to the cohabitation with family members but characterized by ‘the network of personal, social and economic relations that make up the private life of every human being’. In such situations, the Grand Chamber of the Court has recently set itself the task to ‘analyse the legal and practical implications’ of the immigrants living conditions.Footnote ²⁸ The resulting proportionality test will be much more complex than in cases concerning the ‘simple’ protection of family life and cover criteria whose interaction is not always straightforward in a plurilateral balancing exercise. Decisive factors will include the integration into the labour market, dependence on social assistance, language skills as an indicator of social integration, criminal behaviour, links with the country of origin or their absence and the duration of the stay in the host country. Here, the eight ‘Boultif criteria’ may only be a starting point for a complex jurisprudence which the Court has only started to develop.

In a wider European perspective, the new delineation of private and family life does not only reflect changes in European societies and correspond to different actual and legal needs for protection. It similarly corresponds to the new regulatory instruments adopted at European level in recent years. Both the Directive 2003/86/EC on the right to family reunification and the Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents primarily apply to the nuclear family of spouses and their minor children.Footnote ²⁹ This departure from the more generous rules on the free movement of Community nationalsFootnote ³⁰ has been criticized for not fulfilling the original political pledge rights ‘which are as near as possible to those enjoyed by EU citizens’.Footnote ³¹ The new Strasbourg case law now suggests that the narrow understanding of family life does not interfere with Article 8 ECHR in so far as the family unity of the nuclear family is concerned, and also probably does not constitute indirect race discrimination.Footnote ³² At the same time, the extension of Article 8 ECHR to the wider social relations constituting the private life of every human being will become an important criterion for the evaluation of whether the new Community instruments and national implementation measures live up to European human rights standards.Footnote ³³ This is of particular relevance for restrictions of the long-term residence status under Article 12 of Directive 2003/109/EC.Footnote ³⁴ Thus, the new system delineation of the family life of the nuclear family and the private life of any long-term resident may become an important guiding principle for the human rights dimension of European and national immigration law.

A. Ariztimuno Mendizabal v France

The extension of Article 8 ECHR to the conditions for the granting of residence permits is illustrated by the judgment in Ariztimuno Mendizabal v France of 17 January 2006.Footnote ⁴⁰ The facts of the case are atypical: the applicant was originally granted refugee status in France as a Spanish national in 1976, which was revoked three years later following the political changes in her home country. Until 1989 she received temporary residence permits for a duration of one year each, which were then renewed on a quarterly basis until 1993. In the following 10 years, the intervals of renewal were reduced dramatically, to a few weeks on some occasions; altogether the ECHR counted 69 renewals until November 2003, when she was eventually granted the carte de séjour to which she was entitled under EC law as an intra-Community migrant worker. The Court held that Article 8 ECHR had been violated and afforded her just compensation of €50,000.

Apart from the peculiarities of the case, which simply constitute a malfunction of the French administrative and court system in disrespect of EC law, the findings of the Court differ from the traditional cases on the application of the Convention to the legal status of foreigners in two respects: first, the applicant did not invoke the protection of family life (her husband, an alleged member of the ETA terror group, had been extradited to Spain). Secondly, the French authorities had never threatened to expel or deport her; she complains about the failure of the French authorities to deliver the residence permit to which she was entitled. In short, the case neither concerned the maintenance of family life nor the right to stay in France, but is essentially about the conditions for the granting of residence permits. The Court's findings are representative of its new approach to the application of Article 8 ECHR to the legal status of immigrants.

It deliberately takes up the original conclusion on the general indifference of Article 8 ECHR towards the structure of national immigration law by confirming that the provision ‘does not guarantee the persons concerned the right to a particular type of residence permit (indefinite, temporary or other), as long as the solution proposed by the authorities allows for the effective exercise of their right to respect for private and family life’.Footnote ⁴¹ But instead of stopping at this point and relying on the applicant's continued presence in France without the direct threat of expulsion or deportation, the Court continues with an examination of the effects of the ‘precarious and uncertain situation the applicant sustained for a long period’ and which ‘had important consequences for her in material and psychological terms (precarious and uncertain employment, social and financial difficulties, impossibility to open a bar in default of a carte de séjour required for the exercise of the profession she was trained for)’.Footnote ⁴²

The implications are clear: the Court's examination is no longer limited to the essential balancing between the preservation of family unity and the maintenance of public order, but extends to the factual implications of a foreigner's legal status. The uncertainty and precariousness of the applicant's situation affected the network of her personal, social and economic relations that make up her private life and did thus constitute an infringement of Article 8 ECHR in line with the new case law analysed above. In casu, the Court did, however, not engage in an extensive weighing of arguments under the proportionality test, since the denial of the carte de séjour was an evident violation of Community lawFootnote ⁴³—in the light of which the Court interprets the ECHR reflecting the increased convergence between the two European courts in Strasbourg and Luxembourg.Footnote ⁴⁴ Since the restrictive state measure did therefore lack an adequate legal basis, it was not adopted ‘in accordance with the law’ and was therefore in violation of Article 8 ECHR (in contrast to the situation of most third country nationals, in particular illegal immigrants, where restrictive national practices are explicitly foreseen in national or European laws).

B. Case Sisojeva et al v Latvia

From an immigration law perspective the judgment of the Grand Chamber in Sisojeva et al v Latvia of 15 January 2007 commands particular attention, since it illustrates the potential of the new Strasbourg case law for the legal status of illegal immigrants,Footnote ⁴⁵ while at the same time avoiding an substantive overstretch of Article 8 ECHR which the earlier chamber judgment of June 2005 might have entailed.Footnote ⁴⁶ The case concerns an ethnic Russian family which has been living in Latvia for more than 20 years, mirroring the Slivenko case mentioned above with the important difference that the Latvian authorities were tolerating the applicants' residence in Latvia and had assured them that they would not proceed with deportation measures.Footnote ⁴⁷ Eventually, the Latvian authorities offered the regularisation of their stay by means of renewable temporary residence permits in accordance with Latvian immigration law, which the applicants rejected, since they essentially maintained they should be granted unconditional residence rights under the Russo-Latvian Treaty on troop withdrawal. The Grand Chamber confirms that Article 8 ECHR extends to situation of illegal residents in principle, but rejects the claim that the regularisation offer was insufficient:

The Convention should indeed be limited to questions pertaining with the exercise of the applicants' family and private life under Article 8 ECHR and not be extended to substantive questions of national immigration law. The interpretation and application of the latter does not fall within the competence of the Strasbourg Court, which as an international human rights court is no supreme court for the interpretation and application of national laws.Footnote ⁴⁹ In the Sisojeva case these general considerations entail that the regularisation offer resolved the cases from a human rights perspective—despite the unpleasant aftertaste of an attempt to avoid a verdict against Latvia only after the Strasbourg court had found the application to be admissible.Footnote ⁵⁰ It is to be expected that the Grand Chamber will come to the same conclusion in the applications of Kaftailova v Latvia and Shevanova v Latvia which, mutatis mutandi, follow the pattern of the Sisojeva case and have all been referred to the Grand Chamber after a chamber of the Court had found a violation of Article 8 ECHR despite regularisation proposals by the Latvian authorities.Footnote ⁵¹ This confirms that Article 8 ECHR may require the Contracting Parties to regularize the illegal stay of foreigners without guaranteeing a right to a particular type of residence permit.

C. Case Rodrigues Da Silva & Hoogkamer v the Netherlands

The potential of Article 8 ECHR for the regularisation of illegal stay was underlined in a chamber judgment of 31 January 2006 in Rodrigues Da Silva & Hoogkamer v the Netherlands.Footnote ⁵² Again, the case goes beyond the specific situation in the Baltic States and confirms the pan-European repercussions of the Court's interpretation of Article 8 ECHR also in Western European countries. Conceptually, the judgment follows the Court's earlier decisions on the protection of the family life of the nuclear family, in casu between the applicant and her young daughter, and is not based on the new understanding of private life. But the Court's conclusions on the limited implications of the applicant's illegal residence status under the proportionality test command general recognition for the human rights dimension of illegal residents.

Rodrigues Da Silva & Hoogkamer concerns a ‘classic’ situation of illegal immigration. The applicant entered the Netherlands in 1994 at the age of 22 from her native Brazil, apparently with a tourist visa which she overstayed. Soon afterwards she started a relationship with Mr Hoogkamer, a Dutch national, with whom she conceived a daughter (the daughter automatically acquired Dutch citizenship). Her second son out of an earlier relationship in Brazil joined her after one year, the firstborn followed a few years later; neither the applicant nor her sons have ever been granted a (temporary) residence permit. After three years, the relationship broke up and Mr Hoogkamer was granted child custody in a prolonged court battle. Ms Rodrigues Da Silva nonetheless continued to care for the child in alternation with the father's parents, which confirmed the positive impact of the mother on the daughter's joint upbringing. The Court grants her a right to regularize her illegal stay.

From the perspective of child custody law, the Court's conclusion that the applicant's factual care for the baby is sufficient for granting it protection under Article 8 ECHR is not self-evident,Footnote ⁵³ but continues the Court's aforementioned concern with the protection of family and private life in real terms and moreover corresponds to a wider trend in European human rights law.Footnote ⁵⁴ On this basis, the Court holds that the separation of the mother and the child would infringe the obligations of the Netherlands under Article 8 ECHR. It could thus build upon its earlier case law on the subsequent immigration of family members and extend it to parents already present in the host country.Footnote ⁵⁵ In this respect, it noticeably attempts to establish abstract criteria for situations of family reunification, reflecting the ‘Boultif criteria’ for the expulsion and deportation of foreigners.Footnote ⁵⁶ These general standards include the ‘important consideration … whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious’. In such circumstances ‘it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8’.Footnote ⁵⁷

In general terms, these parameters do not appear as a generous extension of the human rights status of illegal immigrants. The innovation rather lies in the prior assumption that illegal entry and residence status are only one, albeit important, element in the proportionality test and require balancing with other factors arguing in favour of the illegal immigrants. This provides immigration lawyers, respective interest groups and national courts with an important new legal tool to redesign national immigration law from a human rights perspective, since the weighing of interests under the proportionality tests is inherently no strict dogmatic undertaking and opens the law for considerations of equity. The ECtHR's own reasoning in Rodrigues Da Silva & Hoogkamer illustrates the potential of Article 8 to effectively grant illegal immigrants a right to regularize their illegal stay under the proportionality test.

When applying its general criteria, the Court seems to pay particular attention to the conclusion of the Amsterdam Child Care and Protection Board that it would be ‘traumatic’ for the daughter to leave the Netherlands.Footnote ⁵⁸ In contrast, the lack of custody rights and in particular the mother's irregular stay are only considered at the sideline, when it generally

But it then turns to the vague suggestion that the mother might have regularized her stay during her relationship with the father from which they refrained due to the ‘unavailability of documents concerning Mr Hoogkamer's income’.Footnote ⁶⁰ The final balancing of the different arguments further restricts the importance of the illegal residence status. In the eyes of the Court, illegal residence expresses a ‘cavalier attitude to Dutch immigration rules’ and ‘by attaching such paramount importance to this latter element, the authorities may be considered to have indulged in excessive formalism’.Footnote ⁶¹

If this latter reference hints at the corresponding case law of the European Court of Justice on the declaratory character of residence permits for Union citizens exercising their free movement rights under the EC Treaty, which the same chamber explicitly cites in Ariztimuno Mendizabal deliberated three weeks earlier, it misconceives the fundamental difference between the two situations. Whereas Union citizens have a directly applicable fundamental freedom to settle in other Member States, Ms Rodrigues Da Silva had never been authorised to reside in the Netherlands and is granted this right by the Court itself.Footnote ⁶² It is obvious that the Court's conclusion is dissatisfactory from the point of view of immigration policy. The Dutch authorities have at no point taken a deliberate decision to grant the applicant or her two sons the immigration to the Netherlands; nonetheless it is to be expected that they will now remain in the Netherlands indefinitely. It remains to be seen how the ECtHR and national courts decide in other cases where illegal immigrants claim their regularization under reference to the protection of their family or private life. In Rodrigues Da Silva & Hoogkamer, however, the Court has clearly attributed too little weight to the necessary effectiveness of immigration law, for which the sanctioning of illegal entry and stay are important foundations to maintain the credibility of the overall system.

A. Margin of Appreciation in the Field of Immigration

In the first 30 years of their existence, the Strasbourg institutions remained largely silent on matters of migration. This was no coincidence, since the Convention contains to this day no reference to immigration, in particular neither a right to asylum nor an explicit prohibition of refoulement (with the minor exception of Article 4 of Additional Protocol No 4 on collective expulsion). This silence on immigration reflects the original choice of the Contracting Parties to regulate migration flows without a supranational human rights superstructure.Footnote ⁶⁵ Applications relating to immigration law may therefore reach the Court only indirectly, through the effects of state measures on other human rights of the foreigners concerned. The obligation to permit subsequent immigration for purposes of family reunification with members of the nuclear family already residing on the territory of a Contracting Party is a prime example of this indirect application: The Contracting Party is under no obligation to admit the foreigner in its own right, but may be obliged to do so in respect for the human rights of its family members.

The indirect relationship between the Convention and immigration law is the principal justification for the general margin of appreciation which the Contracting Parties enjoy in this policy field and which has consistently been upheld by the ECtHR.Footnote ⁶⁶ It implies that each application of the European Convention to immigration cases extends its scope beyond the area which the Contracting Parties had originally intended to be covered by the Convention.Footnote ⁶⁷ Giving less weight to the intention of the Contracting Parties in the interpretation of the Convention illustrates its gradual ‘constitutionalization’ with the Court focusing instead on the concept of effective human rights protection, which underlies many of its dynamic decisions.Footnote ⁶⁸ This concept of effective protection may well be criticised for defining the legal contents of a norm with undue consideration to its effects in practice, with the Court overstepping its role as an adjudicator and ignoring the regular mechanism for amendments to the Convention. But it is well established in the jurisprudence of the Strasbourg Court and international human rights law in general and has repeatedly served as the dogmatic justification for an extension of the Convention's scope.Footnote ⁶⁹

Whenever the Contracting Parties adopt positive measures to actively protect the private and family life of foreigners, the margin of appreciation is additionally based upon the dogmatic consideration that positive obligations to actively protect human rights leave the Contracting Parties the discretion to choose among different modes of fulfilment.Footnote ⁷⁰ The twofold justification for the Contracting Parties' margin of appreciation in the field of immigration reaffirms its principled importance for the adjudication of immigration cases which the Court expressed in representative terms in Gül v Switzerland:

B. Application of National Immigration Law

In principle, the Court's competence is limited to the interpretation of the ECHR and it may not engage in the interpretation and application of national law, which remains the prerogative of national courts. But the latter are not similarly prevented from interpreting and applying the Convention to domestic cases. Such a reciprocal demarcation line may only be drawn in strictly dualistic legal orders. In all jurisdictions which incorporate the ECHR into the national legal order (by far the overwhelming majority among the Council of Europe Member States these days) the national courts are empowered to take the ECHR and the Court's case law into account when they interpret and apply national immigration law. National civil servants or judges do, however, often struggle to integrate the case law on Article 8 ECHR into the specific structure of their domestic legal system. This is no coincidence, since the immigration laws of most Contracting Parties are highly sophisticated normative systems with various finely balanced institutional principles, whose application is closely inter-related with the respective administrative procedures.

Whenever the Court decides an individual case, its general conclusions on the interpretation of Article 8 ECHR may therefore have different implications in different national systems. What seems to be comparable at first glance may appear different when looked at more closely. One minor but illustrative example: after the chamber judgment in Sisojeva, various administrative courts in Germany relied upon the new case law to oblige the German authorities to regularize the illegal stay of foreigners, who had never been granted a residence permit after the rejection of their asylum claims but had nonetheless been living in the country for many years in which the authorities did not proceed with deportation measures.Footnote ⁷² Different courts came to different conclusions on how to integrate the new Strasbourg judgment into the national legal system and, arguably, all different solutions could realistically claim to follow the Court's argument in the Sisojeva judgment. The inherent problem lay with the specificities of the German legal systems which the Strasbourg Court did not have in mind when it rendered the Sisojeva judgment. Indeed, the ECtHR itself held a few months later that a similar claim of failed asylum-seekers from Germany was manifestly ill-founded and therefore inadmissible.Footnote ⁷³

The difficulty of translating the Strasbourg case law into the domestic legal context alone argues for a certain leeway to allow the Contracting Parties to maintain and apply the structure of their national immigration laws reflecting the Contracting Parties' margin of appreciation.Footnote ⁷⁴ The margin of appreciation is an expression of judicial self-restraint and ‘embraces an element of deference to decisions taken by democratic institutions … It is not the role of the European Court systematically to second-guess democratic legislators.’Footnote ⁷⁵ In its Sisojeva judgment the Grand Chamber prominently reaffirms this leeway of the national authorities to integrate Strasbourg's case law into the specific context of their national legal systems:

It is therefore to be expected that the Court will in future pay due respect for the normative structure of national legal systems and the specific balance between the public and individual interests they embody. National courts, in particular those of last instance, are the primary place to integrate the Convention into the specific normative framework of national immigration laws. When the national courts assume this function, the Court will in return pay tribute to the subsidiary character of the Convention's court system, which after the accession of many new Contracting Parties has gained renewed importance as a tool for the preservation of the Court's effectiveness.Footnote ⁷⁷ Strasbourg may still intervene in specific cases when the national legal system produces an intolerable result. In regular situations, the ECtHR and national courts should however develop and cultivate a relationship of mutual trust and confidence.Footnote ⁷⁸

C. Orientation of the ECtHR at the Individual Case

Respect for the margin of appreciation and the corresponding leeway in the application of national immigration law are enhanced by the Court's focus on the adjudication of hardship cases. National immigration law and its application by state authorities and courts arguably resolve most disputes within the domestic system by striking an adequate balance between the private and public interests involved. This allows the Strasbourg Court to concentrate on situations of failure of the national bodies by correcting intolerable outcomes in individual cases. A closer look at the Court's case law does indeed show a concentration of hardship cases, where the individual circumstances of the persons concerned may at least partly explain the Court's finding of a violation of the Convention. Such an orientation towards the circumstances of the individual case may for example be found in the three judgments discussed in more detail above:

The facts of the Sisojeva case confronted the Court with the difficult situation of the russophone minority in the Baltic States; Ariztimuno Mendizabal concerns the failure of the French authorities to apply EC law over a period of more than 10 years; and in Rodrigues Da Silva & Hoogkamer the Court granted a right to residence to a caring mother who may negligently not have regularized her illegal stay during the relationship with a Dutch citizen (see above sections III. A–C). Similar specificities may be found in other landmark judgments on the application of Article 8 ECHR, where the Court prevented the deportation of a deaf and dumb offender (Nasri) and the subsequent immigration of the son of an incapacitated father and a mother with epilepsy (Gül).Footnote ⁷⁹ In Slivenko, the Court explicitly rules that the expulsion of former Soviet military personnel

This focus on the resolution of hardship cases with an emphasis on the individual circumstances of the applicants is not contradicted by the Court's endeavour to develop systematic criteria for the interpretation and application of Article 8 ECHR.Footnote ⁸¹ Its eight ‘Boultif criteria’ for the expulsion and deportation of foreigners illustrate this quest for coherence in the same way as its latest attempt to find general criteria for the subsequent immigration of family members.Footnote ⁸² The attention to the individual case does not absolve the Court from the development of a coherent and predictable jurisprudence, which guarantees the comparability of its results and guides the national authorities and courts in the autonomous interpretation and application of the Article 8 ECHR in immigration cases.

If the academic observer and national practitioner are nonetheless left with a feeling of uncertainty, this remaining doubt reflects a wider ambiguity about the role of the Court vis-à-vis the national jurisdictions of the Contracting Parties. The Court assumes a hybrid function between the binding force of its judgments inter partes under Article 46(1) ECHR and its quest for a pan-European human rights superstructure in line with ‘the Convention's role as a “constitutional instrument of European public order” in the field of human rights’.Footnote ⁸³ The judges are aware of their hybrid status as the protector of the individual and the guarantor of the pan-European human rights constitution.Footnote ⁸⁴ This structural tension between the Court's focus on the individual case and the requirements of constitutional adjudication should be borne in mind by everyone applying the Court's case law within its domestic legal context.

D. Converting Immigration Law from the Human Rights Angle?

Human rights oblige national authorities and courts to take into account the legitimate interests of the individuals concerned. Immigration law, on the contrary, has long been characterized by its focus on the public interest. The concept of state sovereignty is the ultimate legal justification for the general freedom of States to control the entry, residence and expulsion of aliens. With their emphasis on the individual, human rights do therefore pose a direct challenge to the concept of state sovereignty.Footnote ⁸⁵ Human rights law holds the potential to reverse the immigration law's traditional orientation at the public interest and redirect it towards the individual. The impact of EC law on intra-Community migration is a perfect illustration of such a conversion in extremis: its rules on the free movement of EU citizens and their interpretation by the European Court of Justice (ECJ) have systematically obliged the Member States to justify their restrictive laws and practices, gradually extending the rights of Union citizens.Footnote ⁸⁶ On the basis of Decision 1/80 of the EEC–Turkey Association Council the ECJ has largely extended this orientation at the individual to Turkish nationals covered by the decision.Footnote ⁸⁷

Is the Strasbourg Court positioning itself to redirect the remaining national immigration laws in a similar manner? Its case law on the application of Article 8 ECHR in the field of immigration does indeed contain various examples which oblige the Contracting Parties to attach more importance to the interests of the foreigners concerned. Thus, the chamber judgment in Sisojeva expresses, with obvious reference to the public order clauses in most national immigration laws, that in cases of long-term residence the rejection of regularization ‘reasons of a particularly serious nature may only be justified for’.Footnote ⁸⁸ In Rodrigues Da Silva & Hoogkamer the Court argues that the Dutch authorities had ‘indulged in excessive formalism’ when they attached primary importance to the illegal residence status to the detriment of the family ties of the applicant.Footnote ⁸⁹ In Slivenko the Grand Chamber demonstrates the importance of private interests in even more general terms: ‘(I)t seems that in this context the authorities did not examine whether each person concerned presented a specific danger to national security or public order. Nor has any allegation been made in this particular case that the applicants presented such a danger. The public interest instead seems to have been perceived in abstract terms underlying the legal distinctions made in domestic law.’Footnote ⁹⁰

More generally, the ‘Boultif criteria’ on the expulsion and deportation of foreigners include numerous references to the situation of the individual concerned, such as the conduct after the criminal offence which led to the expulsion, the applicant's family situation, the length of the stay in the host country and whether the spouse knew about the offence when they entered into the relationship.Footnote ⁹¹ This readiness to point at the specific situation of the applicant should however not be misread as the judicial call for a legal revolution. With a view to the aforementioned margin of appreciation of the Contracting Parties and the focus on the adjudication of the individual case, the ECHR does not command a fundamental re-structuring of national immigration laws. Whenever the situation of a specific foreigner requires special treatment under the Court's case law, the hardship clauses which are nowadays an integral part of most European immigration law systems will usually provide a sufficient remedy preserving the specific balance between individual and public interests which underlie the national immigration laws of the Contracting Parties.

E. European Perspectives: Strasbourg's Glance to Luxembourg?

The plurality of national immigration laws in Europe is coming to its end. Since the entry into force of the Treaty of Amsterdam, the European Union has adopted numerous legislative instruments building the ‘area of freedom, security and justice’.Footnote ⁹² The gradual adoption of a common asylum and immigration policy under Articles 62–63 EC is an important building block of this development. For the purposes of this contribution, Directive 2003/86/EC on the right to family reunification and Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents deserve particular attention, since they establish a uniform pan-European set of principles.Footnote ⁹³ While the United Kingdom, Ireland, and Denmark are not bound by the said directives, the Strasbourg jurisprudence does of course apply to them similarly. In the case of the United Kingdom more specifically, the recent clashes between the legal and the political establishment on the application of human rights to immigration cases heralds the potential of conflict between the legislator and the courts in this policy area.Footnote ⁹⁴ Arguably, the potential of the new case law on Article 8 ECHR has not yet been fully exhausted by immigration law practitioners and national court.

In its recent judgments on Article 8 ECHR, the Court does not mention the new European Directives. It would, however, not be surprising if the harmonization of European asylum and immigration law had an indirect influence on the reasoning of the Strasbourg judges. Indeed, the renewed activism of the Court in matters of immigration may be motivated by the desire to actively influence the adjudication of these new European laws. Of course, the Strasbourg Court has no direct competence in the field of EU law (notwithstanding its recent judgment in Bosphorus Airways).Footnote ⁹⁵ But it interprets the Convention in the awareness that the European Court of Justice in Luxembourg refers to the Convention and the Strasbourg case law as the principal sources of its human rights jurisprudence.Footnote ⁹⁶ Its judgment in Pupino deserves particular attention in this respect, since it did for the first time require European law to respect ‘the Convention, as interpreted by the European Court of Human Rights’.Footnote ⁹⁷

The first judgment of the European Court of Justice on the EC harmonization measures illustrates the importance of Article 8 ECHR for the emerging European asylum and immigration system: the action of annulment brought by the European Parliament against certain provisions of the family reunification Directive 2003/86/EC. In its judgment of 27 June 2006, the ECJ refers extensively to the ECtHR's case law in immigration cases and concludes on this basis that the provisions attacked by the European Parliament comply with European human rights standards as long as they are interpreted in conformity with the Strasbourg case law (it does however not refer to the extensive interpretation of Article 8 ECHR in the judgments discussed in this article, which were all delivered after the opinion of Advocate General Kokott with its comprehensive analysis of the earlier ECtHR jurisprudence to which the ECJ has recourse).Footnote ⁹⁸

It has already been mentioned at the outset that the re-conceptualization of private and family life within the meaning of Article 8 ECHR may lay the ground for the structural alignment of ECHR standards and EU legislative instruments. The Court's criteria for the protection of family life may serve as the human rights standard for the family reunification Directive, while its jurisprudence on the respect for the long-term residence status would become the parameter for the rights of long-term residents under Directive 2003/109/EC.Footnote ⁹⁹ On this basis, one may for example imagine a restrictive interpretation of the directives' provisions on the protection of foreigners against expulsion in the light of the Convention case law.Footnote ¹⁰⁰ When Article 8 ECHR is applied to the common normative framework of EU immigration law, the underlying rationale of the margin of appreciation and the corresponding respect for the structural specificities of national legal systems partly loses its relevance.Footnote ¹⁰¹ Knowing that its case law will serve as the European Union's constitutional human rights standard in immigration cases might thus well encourage the ECtHR to tighten its control intensity and pay less attention to the Contracting Parties' margin of appreciation.