In the case of Jeunesse v. The Netherlands (application no. 12738/10) the European Court of Human Rights has considered a refusal to allow a woman to settle in the Netherlands with her husband and three children. The case is particularly interesting because it is a Grand Chamber decision and because the court recognises that much of its case law on Article 8 and immigration issues involves the rather different scenario of expulsion of an already settled person as opposed to their admission. The court ultimately finds that there was a breach of Article 8 of the European Convention on Human Rights.

Those affected by the harsh requirements of Appendix FM and the spouse minimum income rule will be particularly interested in the case.

The facts

The facts of the case are, however, unlike most cases we see at the moment in the UK. The couple seeking to live together in the Netherlands were Surinamese. They had been Dutch until 1975 when Suriname became independent and only then became Surinamese. They met in 1987 but the husband relocated to the Netherlands in 1991 to join his family and then became a Dutch national in 1994, which entailed loss of his Surinamese citizenship.

His partner then applied six times for visas to settle in the Netherlands, with each application being rejected until she was finally permitted to enter in 1997. She applied for residency but this application was rejected because of non compliance with the immigration process. An appeal was pursued but exhausted in 2001. In the meantime, the couple married in 1999 and the first of their three children was born in 2000.

A further four applications for residency were made and each was rejected. The final rejection was appealed and pursued to the European Court of Human Rights, the couple having three children by this point, all of whom were Dutch nationals.

The legal bits

The facts of a case always matter in human rights law because each case is supposed to turn on its own facts. Lawyers and judges, though, look to the legal principles established by a case and seek to extract general lessons that can be applied in other cases with different facts.

In this case the legal lessons start at paragraph 100. The court reiterates that:

a State is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there. The Convention does not guarantee the right of a foreign national to enter or to reside in a particular country (see, for instance, Nunez, cited above, § 66). The corollary of a State’s right to control immigration is the duty of aliens such as the applicant to submit to immigration controls and procedures and leave the territory of the Contracting State when so ordered if they are lawfully denied entry or residence.

That final sentence on there being responsibilities as well as rights is the first time I recall the court spelling this out in an immigration case.

The court goes on critically to comment on the applicant’s non compliance with immigration requirements and the right of states to require migrants seeking residence on their territory to make the appropriate request from abroad. Further, states “are thus under no obligation to allow foreign nationals to await the outcome of immigration proceedings on their territory.”

Echoing Lord Bingham’s judgment in the House of Lords case of EB Kosovo (original Free Movement write up from 2008: Good news from on high), the court goes on to comment on the situation here where a person had established a long period of residence by overstaying (para 103):

Where a Contracting State tolerates the presence of an alien in its territory thereby allowing him or her to await a decision on an application for a residence permit, an appeal against such a decision or a fresh application for a residence permit, such a Contracting State enables the alien to take part in the host country’s society, to form relationships and to create a family there. However, this does not automatically entail that the authorities of the Contracting State concerned are, as a result, under an obligation pursuant to Article 8 of the Convention to allow him or her to settle in their country. In a similar vein, confronting the authorities of the host country with family life as a fait accompli does not entail that those authorities are, as a result, under an obligation pursuant to Article 8 of the Convention to allow the applicant to settle in the country. The Court has previously held that, in general, persons in that situation have no entitlement to expect that a right of residence will be conferred upon them

The court then distinguishes the situation in this case where a person was seeking to settle from other cases in which a settled migrant was being expelled and finds that different principles might apply (para 105):

As the factual and legal situation of a settled migrant and that of an alien seeking admission to a host country – albeit in the applicant’s case after numerous applications for a residence permit and many years of actual residence – are not the same, the criteria developed in the Court’s case-law for assessing whether a withdrawal of a residence permit of a settled migrant is compatible with Article 8 cannot be transposed automatically to the situation of the applicant. Rather, the question to be examined in the present case is whether, having regard to the circumstances as a whole, the Netherlands authorities were under a duty pursuant to Article 8 to grant her a residence permit, thus enabling her to exercise family life on their territory. The instant case thus concerns not only family life but also immigration. For this reason, the case at hand is to be seen as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation under Article 8 of the Convention.

The section on the relevant principles, drawn from the recent case of Butt v Norway, need quoting in full:

106.  While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective ‘respect’ for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.

107.  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. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see Butt v. Norway, cited above, § 78).

108.  Another important consideration is 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. It is the Court’s well-established case-law that, where this is the case, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 94, § 68; Mitchell v. the United Kingdom (dec.), no. 40447/98, 24 November 1998; Ajayi and Others v. the United Kingdom (dec.), no. 27663/95, 22 June 1999; M. v. the United Kingdom (dec.), no. 25087/06, 24 June 2008; Rodrigues da Silva and Hoogkamer v. the Netherlands, cited above, § 39; Arvelo Aponte v. the Netherlands, cited above, §§ 57-58; and Butt v. Norway, cited above, § 78).

109.  Where children are involved, their best interests must be taken into account (see Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 44, 1 December 2005; mutatis mutandis, Popov v. France, nos. 39472/07 and 39474/07, §§ 139-140, 19 January 2012; Neulinger and Shuruk v. Switzerland, cited above, § 135; and X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). On this particular point, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see Neulinger and Shuruk v. Switzerland, cited above, § 135, and X v. Latvia, cited above, § 96). Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight. Accordingly, national decision-making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it.

Outcome

The court finally moves to apply the facts to the law, going on to find that there was a breach of Article 8 in this case. The factors that weighed against the applicant were her non compliance with immigration requirements, her irregular immigration status, her awareness of the precarious nature of her position and there being no insurmountable obstacles to their relocation to Suriname.

The factors that weighed in her favour and which cumulatively made this an exceptional case were the Dutch nationality of all her husband and children, the fact that the applicant herself had been a Dutch national at birth and only lost it by no choice of hers when her country became independent in 1975, long residence at an address of which the Netherlands authorities were well aware, residence which they tolerated for over 16 years, there being no criminal offending during that time, that although there were no “insurmountable obstacles” to the husband and children relocating to Suriname, there would be “a degree of hardship” in their being forced to do so, that the situation of all members of the family had to be considered and the best interests of the children.

On the best interests of the children, the court analysed the situation thus (para 119):

Noting that the applicant takes care of the children on a daily basis, it is obvious that their interests are best served by not disrupting their present circumstances by a forced relocation of their mother from the Netherlands to Suriname or by a rupturing of their relationship with her as a result of future separation. In this connection, the Court observes that the applicant’s husband provides for the family by working full-time in a job that includes shift work. He is, consequently, absent from the home on some evenings. The applicant – being the mother and homemaker – is the primary and constant carer of the children who are deeply rooted in the Netherlands of which country – like their father – they are nationals. The materials in the case file do not disclose a direct link between the applicant’s children and Suriname, a country where they have never been.

The court went on to be critical of the failure by the Dutch authorities to have sufficient regard to the impact on the children (para 120):

The Court is not convinced that actual evidence on such matters was considered and assessed by the domestic authorities.

Lastly, after specifically reminding itself of the margin of appreciation, the court finds that on the facts of this case, general policy considerations did not outweigh the interests of the individuals concerned:

The central issue in this case is whether, bearing in mind the margin of appreciation afforded to States in immigration matters, a fair balance has been struck between the competing interests at stake, namely the personal interests of the applicant, her husband and their children in maintaining their family life in the Netherlands on the one hand and, on the other, the public order interests of the respondent Government in controlling immigration. In view of the particular circumstances of the case, it is questionable whether general immigration policy considerations of themselves can be regarded as sufficient justification for refusing the applicant residence in the Netherlands.

Comment and analysis

Although the outcome was a success for the applicant and her family, this is not the sort of super-liberal judgment bemoaned by British politicians and some current and ex British judges. There is arguably more solace for the Home Office than for other migrants and their families given that the facts of the case were genuinely exceptional.

The specific references to “insurmountable obstacles” and “exceptional circumstances” might be met with cries of “told you so” by the sorts of Home Office official and judge incapable of reading a whole judgment. As can be seen from a proper reading of the judgment, there were no insurmountable obstacles in this case, only “a degree of hardship”, but the case still succeeded. Insurmountable obstacles will cause a case to succeed but are not a minimum requirement for success.

Nor does the judgment introduce any requirement that a case meet some sort of exceptionality threshold. As can be seen from the judgment, what is required is a careful assessment of all the relevant factors weighing both for and against the migrant before a decision is reached.

Two points of interest and departure from the UK rules particularly struck me. One was the added weight to be given to a private and family life established while the authorities are aware of the person’s presence. The UK traditionally rewarded total non detection of a migrant with the 14 year rule and ‘stop the clock’ effect of commencement of the enforcement process. The other is that the UK rules make no genuine provision for the impact of refusal of residence on any affected children. The effect on children is separately considered in a completely segregated, compartmentalised way that is plainly at odds with the proper approach to the cumulative assessment of Article 8.