The Private Life of Family Matters: Curtailing Human Rights Protection for Migrants under Article 8 of the ECHR?

Since it first began to deliver judgments in cases concerning migrant applicants in the 1980s, the European Court of Human Rights has issued a number of landmark rulings roundly vindicating migrants’ rights. These, however, are the exception to the rule of Strasbourg deference to state powers of immigration control. This article critically examines the evolving practice of the Court towards definition and use of the concepts of family life and private life in cases involving migrants who seek to resist deportation by invoking Article 8 ECHR. The examination reveals an approach on the part of the Court which has the effect of shrinking the protection potential of Article 8 for migrant applicants, allowing state interest in expulsion to carry the day. While this may be symptomatic of Strasbourg deference to state sovereignty in the realm of migration, its implications for migrants in the member states of the Council of Europe are far-reaching. The article concludes by highlighting the tools at the Court’s disposal which could be employed to construct a more human rights-consistent approach in this strand of jurisprudence, an issue all the more relevant in light of the growing number of migrants seeking to establish a life in Europe.