The European Court of Human Rights and the right of refugees and other persons in need of protection to family reunion

International Journal of Refugee Law

Volumn 11, Issue 3, 1999, Pages 427-450

  Lambert, Hélène ^a  

^a UNIVERSITY OF EXETER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; REFUGEE; SOCIAL POLICY;

EUROPE;

EID: 0033500920     PISSN: 09538186     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijrl/11.3.427     Document Type: Article

References (127)

1. It is for the State's competent institutions to assess the actual existence of family links and the necessity requirement that the interfering measure does in fact affect these links. The task of the Strasbourg organs is limited to that of a subsidiary organ of control. See, for example, Meulders-Klein, M.T. (ed.), Internationalisation des droits de l'homme et évolution du droit de la famille: Actes des Journées d'études des 15 et 16.12.1994, L.G.D.J. (1996), 186. On the doctrine of the margin of appreciation and the subsidiary role of the Convention, see, Harris, D.J., O'Boyle, M., and Warbrick, C., Law of the European Convention on Human Rights, London: Butterworths (1995), 14-15.
2. It is for the State's competent institutions to assess the actual existence of family links and the necessity requirement that the interfering measure does in fact affect these links. The task of the Strasbourg organs is limited to that of a subsidiary organ of control. See, for example, Meulders-Klein, M.T. (ed.), Internationalisation des droits de l'homme et évolution du droit de la famille: Actes des Journées d'études des 15 et 16.12.1994, L.G.D.J. (1996), 186. On the doctrine of the margin of appreciation and the subsidiary role of the Convention, see, Harris, D.J., O'Boyle, M., and Warbrick, C., Law of the European Convention on Human Rights, London: Butterworths (1995), 14-15.
3. The Court's judgments are merely declaratory: art. 53 ECHR50. See Meulders-Klein, above n. 1, 193 and, more generally, 188-213; also, Harris, et al., above n. 1, 26.
4. This paper is primarily based on a survey of the judgments of the Courts and only few references are made to the decisions of the European Commission of Human Rights (hereinafter the Commission). See Madurcira, J., 'The case-law of the organs of the European Convention on Human Rights relating to foreigners', Council of Europe, Demo MM4 (94) 3 (1994); Anderfuhren-Wayne, C.S., 'Family Unity in Immigration and Refugee Matters: United States and European Approaches', 8 IJRL 356 (1996); Corouge, E., 'Le respect de la vie familiale: expulsion des étrangers et article 8 de la Convention Européenne des droits de l'homme', 13 (2) Revue française de droit administratif 1997, 318-21; Storey, H., 'The Right to Family Life and Immigration Case Law at Strasbourg', 39 International and Comparative Law Quarterly 1990, 329-330; Jacobs, F.G. & White, R.C.A., The European Convention on Human Rights, Oxford: Clarendon (1996), 180-5.
5. This paper is primarily based on a survey of the judgments of the Courts and only few references are made to the decisions of the European Commission of Human Rights (hereinafter the Commission). See Madurcira, J., 'The case-law of the organs of the European Convention on Human Rights relating to foreigners', Council of Europe, Demo MM4 (94) 3 (1994); Anderfuhren-Wayne, C.S., 'Family Unity in Immigration and Refugee Matters: United States and European Approaches', 8 IJRL 356 (1996); Corouge, E., 'Le respect de la vie familiale: expulsion des étrangers et article 8 de la Convention Européenne des droits de l'homme', 13 (2) Revue française de droit administratif 1997, 318-21; Storey, H., 'The Right to Family Life and Immigration Case Law at Strasbourg', 39 International and Comparative Law Quarterly 1990, 329-330; Jacobs, F.G. & White, R.C.A., The European Convention on Human Rights, Oxford: Clarendon (1996), 180-5.
6. This paper is primarily based on a survey of the judgments of the Courts and only few references are made to the decisions of the European Commission of Human Rights (hereinafter the Commission). See Madurcira, J., 'The case-law of the organs of the European Convention on Human Rights relating to foreigners', Council of Europe, Demo MM4 (94) 3 (1994); Anderfuhren-Wayne, C.S., 'Family Unity in Immigration and Refugee Matters: United States and European Approaches', 8 IJRL 356 (1996); Corouge, E., 'Le respect de la vie familiale: expulsion des étrangers et article 8 de la Convention Européenne des droits de l'homme', 13 (2) Revue française de droit administratif 1997, 318-21; Storey, H., 'The Right to Family Life and Immigration Case Law at Strasbourg', 39 International and Comparative Law Quarterly 1990, 329-330; Jacobs, F.G. & White, R.C.A., The European Convention on Human Rights, Oxford: Clarendon (1996), 180-5.
7. This paper is primarily based on a survey of the judgments of the Courts and only few references are made to the decisions of the European Commission of Human Rights (hereinafter the Commission). See Madurcira, J., 'The case-law of the organs of the European Convention on Human Rights relating to foreigners', Council of Europe, Demo MM4 (94) 3 (1994); Anderfuhren-Wayne, C.S., 'Family Unity in Immigration and Refugee Matters: United States and European Approaches', 8 IJRL 356 (1996); Corouge, E., 'Le respect de la vie familiale: expulsion des étrangers et article 8 de la Convention Européenne des droits de l'homme', 13 (2) Revue française de droit administratif 1997, 318-21; Storey, H., 'The Right to Family Life and Immigration Case Law at Strasbourg', 39 International and Comparative Law Quarterly 1990, 329-330; Jacobs, F.G. & White, R.C.A., The European Convention on Human Rights, Oxford: Clarendon (1996), 180-5.
8. This paper is primarily based on a survey of the judgments of the Courts and only few references are made to the decisions of the European Commission of Human Rights (hereinafter the Commission). See Madurcira, J., 'The case-law of the organs of the European Convention on Human Rights relating to foreigners', Council of Europe, Demo MM4 (94) 3 (1994); Anderfuhren-Wayne, C.S., 'Family Unity in Immigration and Refugee Matters: United States and European Approaches', 8 IJRL 356 (1996); Corouge, E., 'Le respect de la vie familiale: expulsion des étrangers et article 8 de la Convention Européenne des droits de l'homme', 13 (2) Revue française de droit administratif 1997, 318-21; Storey, H., 'The Right to Family Life and Immigration Case Law at Strasbourg', 39 International and Comparative Law Quarterly 1990, 329-330; Jacobs, F.G. & White, R.C.A., The European Convention on Human Rights, Oxford: Clarendon (1996), 180-5.
9. UNGA res. 217 A (III), 10 Dec. 1948, art. 16(3); UNGA res. 2200 A (XXI), 16 Dec. 1966, art. 23(1). See also, UNHCR, 'Family Protection Issues', (1999): below, 582-91.
10. CSR51, Final Act, section IV B: 189 UNTS 150.
11. In the view of UNHCR, reunion should concern not only the nuclear family, that is, husband and wife, their minor or dependent, unmarried children, and minor siblings, but also other dependent members or relatives, such as grandparents, grandchildren and married brothers and sisters; see UNHCR, Division of International Protection, Resettlement Handbook, Geneva, 1997, 4.6. See also EXCOM conclusions No.9 (XXVIII) 1977, No. 15 (XXX) 1979, No.24 (XXXII) 1981, EXCOM Conclusion and Decision on International Protection, 49th Session, 1998: UN doc. A/AC.96/911, 12 Oct. 1998, para. 21(u)-(x) - text in 11 IJRL 227 (1999); UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1979, Ch. VI.
12. In the view of UNHCR, reunion should concern not only the nuclear family, that is, husband and wife, their minor or dependent, unmarried children, and minor siblings, but also other dependent members or relatives, such as grandparents, grandchildren and married brothers and sisters; see UNHCR, Division of International Protection, Resettlement Handbook, Geneva, 1997, 4.6. See also EXCOM conclusions No.9 (XXVIII) 1977, No. 15 (XXX) 1979, No.24 (XXXII) 1981, EXCOM Conclusion and Decision on International Protection, 49th Session, 1998: UN doc. A/AC.96/911, 12 Oct. 1998, para. 21(u)-(x) - text in 11 IJRL 227 (1999); UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1979, Ch. VI.
13. In the view of UNHCR, reunion should concern not only the nuclear family, that is, husband and wife, their minor or dependent, unmarried children, and minor siblings, but also other dependent members or relatives, such as grandparents, grandchildren and married brothers and sisters; see UNHCR, Division of International Protection, Resettlement Handbook, Geneva, 1997, 4.6. See also EXCOM conclusions No.9 (XXVIII) 1977, No. 15 (XXX) 1979, No.24 (XXXII) 1981, EXCOM Conclusion and Decision on International Protection, 49th Session, 1998: UN doc. A/AC.96/911, 12 Oct. 1998, para. 21(u)-(x) - text in 11 IJRL 227 (1999); UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1979, Ch. VI.
14. In the view of UNHCR, reunion should concern not only the nuclear family, that is, husband and wife, their minor or dependent, unmarried children, and minor siblings, but also other dependent members or relatives, such as grandparents, grandchildren and married brothers and sisters; see UNHCR, Division of International Protection, Resettlement Handbook, Geneva, 1997, 4.6. See also EXCOM conclusions No.9 (XXVIII) 1977, No. 15 (XXX) 1979, No.24 (XXXII) 1981, EXCOM Conclusion and Decision on International Protection, 49th Session, 1998: UN doc. A/AC.96/911, 12 Oct. 1998, para. 21(u)-(x) - text in 11 IJRL 227 (1999); UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1979, Ch. VI.
15. Lambert, H., Seeking Asylum: Law and Practice in Selected European States, Leiden: Martinus Nijhoff (1995), 147-56. See also art. 4, Dublin Convention determining the State Responsible for Examining Applications for Asylum lodged in one of the Member States of the European Community: 2 IJRL 469 (1990); art. 35, Schengen Convention, 19 Jun. 1990: 2 IJRL 660 (1990).
16. Lambert, H., Seeking Asylum: Law and Practice in Selected European States, Leiden: Martinus Nijhoff (1995), 147-56. See also art. 4, Dublin Convention determining the State Responsible for Examining Applications for Asylum lodged in one of the Member States of the European Community: 2 IJRL 469 (1990); art. 35, Schengen Convention, 19 Jun. 1990: 2 IJRL 660 (1990).
17. Lambert, H., Seeking Asylum: Law and Practice in Selected European States, Leiden: Martinus Nijhoff (1995), 147-56. See also art. 4, Dublin Convention determining the State Responsible for Examining Applications for Asylum lodged in one of the Member States of the European Community: 2 IJRL 469 (1990); art. 35, Schengen Convention, 19 Jun. 1990: 2 IJRL 660 (1990).
18. Art. 1, Commission's amended proposal for a joint action concerning temporary protection of displaced persons [1998] O.J. C268/13.
19. For example, Sweden, Norway, Italy and Spain. In the UK, such right was restricted to displaced persons from the former Yugoslavia accepted under the Temporary Protection Programme (also known as the '1000 quota'), including those who were evacuated for medical reasons (background country information provided by the Home Office, Immigration and Nationality Directorate, Jun. 1998). See generally, Parliamentary Assembly of the Council of Europe, 'Report on temporary protection of persons forced to flee their countries', Doc. 7889, 18 Jul. 1997 and explanatory memorandum.
20. [1998] O.J. C268/13. Under art. 7 of the draft proposal, beneficiaries of temporary protection holding an authorisation to remain are entitled to family reunification with respect to their spouses and minor and dependent children as a minimum right.
21. Migration Policy Group, Migration News Sheet, Brussels, Nov. 1998, 6.
22. Judgment of 28 May 1983 (case 15/1983/71/107-109).
23. Judgment of 19 Feb. 1996 (case 53/1995/559/645).
24. Judgment of 28 Nov. 1996 (case 63/1995/569/655).
25. Judgment of 28 Nov. 1996 (case 73/1995/579/665).
26. Judgment of 21 Jun. 1988 (case 3/1987/126/177).
27. Judgment of 18 Feb. 1991 (case 31/1989/191/291).
28. Judgment of 26 Mar. 1992 (case 55/1990/246/317).
29. Judgment of 27 Jan. 1997 (case 112/1995/618/708).
30. Judgment of 21 Oct. 1997 (case 122/1996/741/940).
31. Judgment of 26 Sept. 1997 (case 85/1996/704/896).
32. Judgment of 26 Sept. 1997 (case 123/1996/742/941).
33. Gül v. Switzerland, above n. 13, para. 38. First held in Abdulaziz, Cabales and Balkandali v. UK, above n. 12, para. 68.
34. Art. 3: 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment'. See, Lambert, H., 'Protection against refoulement in Europe: Human Rights Law comes to the Rescue', 48 ICLQ 515 (1999).
35. Judgment of 7 Jul. 1989 (case 1/1989/161/217).
36. For example, in Chahal v. UK, judgment of 15 Nov. 1996 (case 70/1995/576/662); 9 IJRL 86 (1997).
37. For example, in Nsona v. the Netherlands, above n. 14.
38. For example, in H.L.R. v. France, judgment of 29 Apr. 1997 (case 11/1996/630/813).
39. Art. 13 ECHR50: 'Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.' Where the person is lawfully in a State, this right is further provided by art. 1 ECHR50 Protocol 7.
40. Giakoumopoulos, C., 'La Convention Européenne des Droits de l'Homme et le droit de recours des demandeurs d'asile déboutés', report for the CAHAR, Strasbourg: Council of Europe, 20 Mar. 1996. See also, Labayle, H., 'L'éloignement des étrangers devant la Cour européenne des droits de l'homme', 13(5) Revue française de droit administratif 983 (1997).
41. Giakoumopoulos, C., 'La Convention Européenne des Droits de l'Homme et le droit de recours des demandeurs d'asile déboutés', report for the CAHAR, Strasbourg: Council of Europe, 20 Mar. 1996. See also, Labayle, H., 'L'éloignement des étrangers devant la Cour européenne des droits de l'homme', 13(5) Revue française de droit administratif 983 (1997).
42. Above n. 12.
43. Judgment of 20 Mar. 1991 (case 46/1990/237/307) and judgment of 24 Apr. 1996 (case 16/1995/522/608), respectively.
44. Above nn. 13 and 14, respectively. In Chahal v. UK (above n. 26) and D. v. UK (judgment of 2 May 1997, case 146/1996/767/964), the Court found a violation of art. 3 ECHR50 and thus did not consider it necessary to examine the complaint in relation to art. 8.
45. Above n. 13, para. 38.
46. Concurring opinion by Judge Pettiti in Nasri v. France (judgment of 13 Jul. 1995, case 18/1994/465/546).
47. Nsona v. the Netherlands, above n. 14, para. 92.
48. Concurring opinion by Judge Pettiti in Nasri v. France, above n. 35.
49. In each case before it, the Court establishes the existence of an interference under art. 8(1) before considering whether the interference can be justified under art. 8(2).
50. See, for instance, Moustaquim v. Belgium, above n. 17, paras. 46-7: 'This conclusion makes it unnecessary for the Court to consider whether the deportation was also a breach of the applicant's right to respect for his private life'. And Beldjoudi v. France, above n. 18, paras. 79-80: 'Having reached this conclusion, the Court need not examine whether the deportation would also infringe the applicants right to respect for their private life'.
51. Above n. 12, para. 62.
52. Ibid., para. 63.
53. Above n. 16, para. 21.
54. Above n. 32, para. 35.
55. Above nn. 35, 13 and 15, respectively.
56. Looking at decisions from the Commission, it further appears that some elements of stability must be shown in order for ties established by an alien in a contracting State to constitute family life. For instance, the Commission recognised the ties between a rejected asylum seeker and his Swedish wife to constitute family life because, although they already knew that his application for asylum would be rejected before entering into marriage, they had been living together for several years before their marriage (32025/96 DR 87, p.173, but see 1133/85 DR 43, p.227, 11945/96 DR 51, p. 186 and, 12122/86 DR 50, p.268). While, relationships outside marriage might constitute family life, the Commission does not however recognise a homosexual relationship to constitute such life (28318/95 DR 85, p. 149) but it may constitute private life (9369/81 DR 32, p.223).
57. For example, Berrehab v. the Netherlands, above n. 16 and Chorfi v. Belgium, judgment of 7 August 1996 (case 35/1995/541/627).
58. For example, in Moustaquim v. Belgium, the Court recognised the existence of family life from the bonds between the applicant and his parents because although he had been separated from them for more than five years as a result of being deported, 'he tried to remain in touch by correspondence': above n. 17, para. 36. Similarly, in Gül v. Switzerland, the Court ruled that the bond of family life between the applicant and his eight year old son had not been broken, despite the fact that the applicant had left Turkey when his son was three months old, because the applicant had repeatedly asked the Swiss authorities to allow his son to join him and he had visited him several times in Turkey: above n. 13, para. 32.
59. See, Mas, M.E., 'La protection des enfants mineurs en Europe', 4 Bulletin des Droits de l'Homme 1995, 30-41.
60. In Nsona v. the Netherlands, above n. 14, para. 144, the Court implicitly recognised the existence of family life between an orphan child and her aunt within the meaning of art. 8(1). This reasoning is consistent with the Court's decisions in cases involving nationals, where it has long recognised the existence of family life between near relatives: Marcks v. Belgium, judgment of 13 Jun. 1979, para. 45; Olsson v. Sweden, judgment of 24 Mar. 1988, para. 81. See Kempees, P., A Systematic Guide to the Case-law of the European Court of Human Rights 1960-1994, Vol.I, The Hague: Martinus Nijhoff (1995), 539-50. Generally, on the contribution of the Council of Europe to family law, see Lowe, N. & Douglas, G. (eds.), Families Across Frontiers, The Hague: Martinus Nijhoff (1996), 13-25.
61. In Nsona v. the Netherlands, above n. 14, para. 144, the Court implicitly recognised the existence of family life between an orphan child and her aunt within the meaning of art. 8(1). This reasoning is consistent with the Court's decisions in cases involving nationals, where it has long recognised the existence of family life between near relatives: Marcks v. Belgium, judgment of 13 Jun. 1979, para. 45; Olsson v. Sweden, judgment of 24 Mar. 1988, para. 81. See Kempees, P., A Systematic Guide to the Case-law of the European Court of Human Rights 1960-1994, Vol.I, The Hague: Martinus Nijhoff (1995), 539-50. Generally, on the contribution of the Council of Europe to family law, see Lowe, N. & Douglas, G. (eds.), Families Across Frontiers, The Hague: Martinus Nijhoff (1996), 13-25.
62. Above n. 46, para. 25. The Court referred to para. 29 of its judgment in Niemietz v. Germany (1992), where it held that 'it would be too restrictive to limit the notion to an "inner circle" in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings'. See Kempees, above n. 49, 534-5.
63. The Court considered the following elements as constituting private life: Mr. Chorfi had lived in Belgium from the age of 11, went to school there, underwent vocation training and worked there for many years.
64. Bouchelkia v. France, Boujlifa v. France, El Boujaidi v. France and, Mehemi v. France, above nn. 19, 20, 22, and 21, respectively.
65. For example, Abdulaziz, Cabales and Balkandali v. UK, above n. 12, para. 67; Gül v. Switzerland, above n. 13, para. 38.
66. This is because the Court views the Convention as protecting the effective rather than the theoretical enjoyment of rights (Golder v. UK, 1975 and, Airey v. Ireland, 1979). See, for example, Harris et al., above n. 1, 19-22; Kempees, above n. 49, 507-23, and Anderfuhren-Wayne, above n. 3, 356.
67. Abdulaziz, Cabales and Balkandali v. UK, above n. 12, para. 67.
68. Gül v. Switzerland, above n. 13, para. 38.
69. In Nsona v. the Netherlands, above n. 14, the Court found no interference with the right to respect for family life because the State could not be blamed for the applicants' deceitful act regarding the identity of the nine year old child.
70. The Commission also recognised that the actual procedure of entry for a spouse may raise an issue under article 8(1) when the period required for granting an entry clearance is found to be unreasonably long (7048/75 DR 9, p.42).
71. In both Gül v. Switzerland (above n. 13) and Ahmut v. the Netherlands (above n. 15), the Commission reported that there had been an interference. See also, dissenting opinion by Judge Martens in Gül v. Switzerland, finding that an examination of the interests of the State should only take place when assessing whether an interference is justified under art. 8(2), therefore after it has been found that there has been an interference.
72. Above n. 12, paras. 65, 68.
73. Ibid., para. 68.
74. Above n. 13, para. 42.
75. Mr. Ahmut also had Dutch nationality.
76. Paras. 113-14.
77. Ovey, C., 'The Margin of Appreciation and Article 8 of the Convention', 19 (1) Human Rights Law Journal 1998, 10.
78. Steijn, A. van, 'Protection of the Refugee Family and Article 8 of the Convention', paper presented at the ELENA International Course, Strasbourg, May 1997.
79. Warbrick, C., 'The Structure of Article 8', 1 European Human Rights Law Review 1998, 38-39. The act must nevertheless be certain and enforceable (Vijayanathan and Pusparajah v. France, judgment of 27 Aug. 1992).
80. In Cruz Varas v. Sweden (above n. 32), the Court found no interference with the family life of the applicants on the ground that no obstacles existed against continuing family life in their home country. The Court, in particular, referred to its finding of no violation concerning the applicants' complaints under art. 3. It also referred to the fact that the family members had only been separated as a result of the applicants disappearing into hiding following their expulsion order. It therefore concluded that responsibility for family separation could not be imputed to Sweden.
81. See below, Section 5.
82. Above n. 16, para. 23.
83. Above n. 17, para. 36.
84. Above n. 18, para. 25. In Lamguindaz v. UK (judgment of 23 Jun. 1993), the Commission found an interference with family life on the basis of elements drawn from the sphere of family life but without proceedings to balance these elements against the community's interest. Following the revocation of the deportation order, the case was struck off the list of cases pending before the Court.
85. Above n. 35, para. 34.
86. Above n. 32, para. 35. See also Chorfi v. Belgium (above n. 46), Bouchelkia v. France (above n. 19), El Boujaidi v. France (above n. 22), Boujlifa v. France (above n. 20) and Mehemi v. France (above n. 21).
87. Ovey, above n. 65, 10 (referring to Judge Wildhaber's concurring opinion in Stjerna v. Finland that too often 'a case can be analysed equally well in terms of a positive or a negative obligation').
88. See Storey's reference to the 'elsewhere' approach and the 'connections' approach: above n. 3, at 337.
89. See generally, Kempees, above n. 49, 556-638.
90. National security, public safety, economic well-being of the country, prevention of disorder or crime, protection of health or morals and, protection of rights and freedoms of others.
91. For example, Beldjoudi v. France and Moustaquim v. Belgium, above nn. 18 and 17, respectively. Note that the Commission does not consider the refusal to admit a second wife as contrary to art. 8, even if her children are already living in the State in question. Polygamy being an offence in all European States, the Commission finds this interference to be 'in accordance with the law' and in pursuance of the protection of morals or of the rights and freedoms of others. See Steijn, above n. 66.
92. Above n. 16, para. 26.
93. For example, Abdulaziz, Cabales and Balkandali v. UK, above n. 12, para. 67; Berrehab v. the Netherlands, above n. 16, paras. 28-9; Moustaquim v. Belgium, above n. 17, para .43; Beldjoudi v. France, above n. 18, para. 74.
94. Above n. 16, para. 29.
95. Above n. 17, para. 46.
96. Above n. 18, para. 79.
97. Beldjoudi v. France, above n. 18, para. 75.
98. Twenty years in the case of Mr. Boughanemi (above n. 32), twenty-five in the case of Mr. Chorfi (above n. 46) and about thirty years in the case of Mr. Nasri (above n. 35).
99. As successfully demonstrated in Beldjoudi v. France (above n. 18) and Mehemi v. France (note 21) but not in Boughanemi v. France (above n. 32) or Chorfi v. Belgium (above n. 46).
100. For instance, being born deaf and dumb, as successfully demonstrated by the case Nasri v. France (above n. 35).
101. Above n. 32. Warbrick criticises this judgment in the light of Moustaquim v. Belgium, Beldjoudi v. France and Nasri v. France. Warbrick, above n. 67, 40.
102. Above n. 18.
103. Mr. Boujlifa had arrived in France at the age of five, Mr. El Boujaidi seven, Mr. Mehemi was born in France; Mr. Boujlifa had lived there for 23 years, Mr. El Boujaidi 17, Mr. Mehemi 33, they had all received their education in France, worked there, but they had not shown any desire to acquire French nationality. Furthermore, Mr. El Boujaidi did not show that he knew no Arabic, nor that he had never returned to Morocco. On the other hand, there was no evidence that Mr. Mehemi had retained links with Algeria.
104. When examining the degree of family ties, the Court found that Mr. Boujlifa had his parents and eight brothers and sisters living in France, Mr. El Boujaidi had his parents and three brothers and sisters living in France, and Mr. Mehemi had his parents, four brothers and sisters living in France, as well as his wife and three minor children who were born in France and had French nationality.
105. Above n. 19, para. 50. Mr. Bouchelkia was twenty years old, single and had no children.
106. This element alone is no longer sufficient to outweigh the existence of offences of a serious nature. See, for instance, Boughanemi v. France (above n. 32), Chorfi v. Belgium (above n. 46) and Boujlifa v. France (above n. 20) and compare with Beldjoudi v. France (above n. 18) and Mehemi v. France (above n. 21).
107. For instances of strong family links, see, Berrehab v. the Netherlands (above n. 16), Beldjoudi v. France (above n. 18) and Mehemi v. France (above n. 21) where all three applicants had married a national of the country in question and in the case of Berrehab and of Mehemi, a child had been born of the marriage. For instances of weak family links, see, Boujlifa v. France (above n. 20), El Boujaidi v. France (above n. 22) and Bouchelkia v. France (above n. 19).
108. Cruz Varas v. Sweden (above n. 32) and Boughanemi v. France (above n. 32).
109. In Beldjoudi v. France (above n. 18) and Mehemi v. France (above n. 21), the Court recognised the fact that the applicants were born in France as an important factor. Note however that in both cases there were also strong family links in France, and the serious nature of the offence was thereby compensated.
110. See El Boujaidi v. France (above n. 22), and compare it with Mehemi v. France (above n. 21).
111. See Boughanemi v. France (above n. 32), and contrast it with Beldjoudi v. France (above n. 18).
112. For instance, Mr. Moustaquim had committed 147 offences but at a time when he was a minor. Thus, the Court recognised the deportation measure to be diproportionate. However, in Chorfi v. Belgium, the Court considered the possession of drugs to be a sufficiently serious offence to justify interference, so was the offence of rape with violence and theft in Bouchelkia v. France. However, the rape offence was outweighed by the very special circumstances of Mr. Nasri who was born deaf and dumb.
113. Referring to its earlier cases, it is true that only very exceptional circumstances could justify removal. Labayle, above n. 30, 987.
114. Corouge, above n. 3, 320.
115. Sherlock, along with several dissenting judges, criticise the lack of a clear position by the Court on the matter but recognise nevertheless that only few cases have actually been decided by the Court on this issue. Sherlock, A., 'Deportation of Aliens and Article 8 ECHR', 23 European Law Review 1998, 70-73. As for Labayle, he questions the Court's recent inclination towards realism at the price of sacrificing principles established in earlier cases. Labayle, above n. 30, 993.
116. Anderfuhren-Wayne, above n. 3, 366. For a brief survey of the Commission's approach to the issue of interference and of justifiability, see Storey, above n. 3, 330-4.
117. This is not the case under art. 3 ECHR50.
118. See Berrehab v. the Netherlands (above n. 16), Beldjoudi v. France (above n. 18), Moustaquim v. Belgium (above n. 17) and Chahal v. UK (above n. 26).
119. For example, Soering v. UK (above n. 25), Ahmed v. Austria (judgment of 16 Dec. 1996), Chahal v. UK (above n. 26), D. v. UK (above n. 33).
120. See Chahal v. UK (above n. 26) and D. v. UK (above n. 33).
121. Both were cases where the applicant was a beneficiary of subsidiary protection, that is, a residence permit on humanitarian grounds, seeking entry of a young family member.
122. Above n. 13, para. 42.
123. Warbrick, above n. 67, 42.
124. Above n. 14.
125. Above n. 13.
126. This would particularly be the case concerning displaced persons. This may less be the case, in certain countries, regarding asylum seekers who have been waiting several years for a decision on their application for refugee status and who, as a result of such waiting, may be entitled to a residence permit on humanitarian grounds on a discretionary basis. In the UK, for instance, an asylum seeker may be eligible for settled status ('exceptional leave to remain') after seven years of residency. The Refugee Council, 'The Bosnia project 1992-1998: Some Basic Information', London, 1998.
127. Conseil de l'Europe - Haut Commissariat des Nations Unies pour les réfugiés, 'la Convention européenne des droits de l'homme et la protection des réfugiés, demandeurs d'asile et personnes déplacées', 5 Bulletin des droits de l'homme, 1996, 68-70.