THE DURHAM RESEARCH POSTGRADUATE CONFERENCE - JULY 2001

DPhil candidate, Somerville College, and College Lecturer, Queen’s College, Oxford.

helen.toner@queens.oxford.ac.uk

*I am grateful to the participants and rapporteurs from the Durham European Law Institute Postgraduate Conference in July 2001 for helpful comments on an early draft of this paper presented at the Conference.

© Copyright 2001 Helen Toner
First Published in Web Journal of Current Legal Issues in association with Blackstone Press.

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This article examines the relationship between Article 8 of the European Convention on Human Rights and Community law concerning immigration rights of Member State Nationals and their family members, particularly Third Country Nationals. It examines the particular position of unmarried partners, both same-sex and opposite-sex, and whether the concept of respect for family and private life in Article 8 ECHR could be used to support suggestions that Community Law, and Member States implementing it, should develop immigration rights for unmarried partners. The jurisprudence of European Court of Human Rights relating to Article 8 is not entirely favourable to such a view, but the assumptions underlying this jurisprudence are not easily adapted to Community Law. A distinctive understanding of what respect for family and private life requires in the context of Community migration law may be necessary, and could be argued to require the admission of unmarried partners of migrant Member State Nationals. However, the prospects of such an understanding being effectively developed by the Community legislative Institutions or the Court of Justice are at best uncertain.

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Introduction
Current European Community Law
The European Convention on Human Rights, Article 8

1. Concepts of family and private life

• Unmarried partnerships
• Same-sex couples as families, or a protected aspect of private life

2. Immigration control and Article 8 of the Convention

• Immigration policy and married couples
• Immigration policies and unmarried couples

Problems in applying existing article 8 jurisprudence to Community Law

• The meaning of ‘family’
• Immigration control

Towards a distinctive Community Law understanding of respect for family and private life in immigration law?

• Community Institutions
• The Court of Justice
• The Charter of Fundamental Rights

Conclusion

Bibliography

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This article examines some of the problems raised by in the interaction of two different legal systems - the European Convention on Human Rights (hereafter, simply ‘the Convention’) and European Community Law. Although these two legal regimes often deal with similar problems, the different assumptions underlying the two legal systems may mean that the interaction between these two systems will not always be easy - or necessarily beneficial to individuals’ rights in EC law. I intend to illustrate this by focusing on one particular problem - migration law, and in particular the migration of unmarried partners, whether same-sex or opposite-sex.⁽¹⁾ My suggestion in this paper is that the principles behind Article 8 of the Convention could be used to assert that EC law should grant immigration rights to unmarried partners of migrant Community Member State Nationals. However, this is unlikely to happen unless and until the fundamental differences between the Convention regime as interpreted by the European Court of Human Rights (hereafter ‘the EctHR) and EC Law are recognised, and a distinctive understanding of what ‘respect for family and private life’ requires in the context of Community migration law is developed. At present the attitudes of the Community Legislative Institutions, Member States, and of the Court of Justice do not seem to be entirely favourable to the development of such an understanding.

The Spouse of a migrant National of any Member State (a Community Migrant)⁽²⁾ has the right to settle with his or her spouse anywhere in the Community. ‘Spouse’ means a married partner only, and after the Judgment in D & Sweden -v- Council (Case C-122&125/99P, 31 May 2001, not yet reported) almost certainly does not include Registered Partners. These rights apply to migrants - not to Nationals resident in their own State - unless they have in the recent past used their free movement rights (Case C-370/90, ex parte Surinder Singh, [1992] ECR I-4265).

In Netherlands -v- Reed (Case 59/85, [1986] ECR 1283) the right of the unmarried partner to join the migrant worker was held to be a ‘social benefit’ under the terms of Article 7(2) of Regulation 1612/68. The consequence of this is that it must be granted on equal terms to the State’s own Nationals and to Community Migrants. In Reed, the requirement of permanent residence was seen to work in practice to the detriment of migrants - and was therefore discriminatory. The usual understanding of Reed is that it applies to require the State that grants immigration rights to unmarried partners of its own nationals to grant such rights to migrant workers too. It seems logical to suggest that this applies not just to migrant workers but also to any Community Migrant.⁽³⁾ But it is not thought to require Member States to grant immigration rights to unmarried partners of Community Migrants if these rights are not available to its own Nationals. Thus in the United Kingdom, immigration rights are not available to heterosexual unmarried couples - although there are now provisions for those, particularly same-sex couples, who cannot marry.⁽⁴⁾

The only other relevant measures for workers and the self-employed (Regulation 1612/68, and Directive 73/148) provide that the Host State ‘shall facilitate’ or ‘favour’ the entry of ‘members of the family’ who are dependent on the worker or living ‘under the same roof’. The possibilities and limitations of using this are clear. The unmarried couple could be seen as members of each other’s ‘family’.⁽⁵⁾ However, these provisions do not at first glance seem to require Member States to admit such partners. The furthest that the UK Courts are prepared to go at present is to say that it obliges the authorities to consider the position of such family members in exercising discretion as to whether or not to admit them (Moustafa, Case 11495, IAT).⁽⁶⁾ Any argument focusing specifically on these provisions will also at present be limited in its personal scope (to workers and the self-employed), although the Commission’s recent proposal to unify the rights of residence of all EU Citizens in one single Directive (Commission, 2001) would extend these provisions to all EU Citizens. Although there were proposals that would have improved the position of these ‘family members’ by giving them a right of residence, (Commission, 1988, 1990, 1998) these were never taken up, and do not appear in the most recent Commission proposal.

There is a strong thread of caselaw establishing that the unmarried couple can in principle be protected by the concept of ‘family life’. This will be particularly so if the relationship is longstanding, if the couple have taken the opportunity to raise children together, co-habit in the same house, have joint financial affairs and so on. It is not in every single case that such a couple will be seen to have ‘family life’ together, but it is clearly established that the lack of a formal matrimonial relationship does not preclude the relationship being a ‘family’ relationship within the meaning of Article 8.⁽⁷⁾

The ECtHR has so far refused to countenance the suggestion that a same-sex couple have a ‘family life’ together. Indeed initially it refused to accept that the concept of ‘ respect for private life’ protected the individual against criminal penalties for homosexual conduct. This however has now changed. The criminalisation of homosexual activities between consenting adults is now recognised to be a breach of Article 8 (Dudgeon v. UK, (1982) 4 EHRR 149, Norris v. Ireland, (1991) 13 EHRR 186, and Modinos v. Cyprus, Case 7/1992/352/426, (1993) 16 EHRR 485). Although the ECtHR has yet to accept that ‘family life’ can include a same-sex couple, it has accepted that certain interferences with or contstraints on same-sex relationships can constitute a failure to respect ‘private life’ within Article 8.

It is however possible that the case of Salguiero da Silva (Case 33290/96, unreported) could indicate the emergence of a different attitude to this point in the ECtHR. In Da Silva, the ECtHR establishes clearly that sexual orientation is one of these ‘like’ grounds covered by Article 14 of the Convention, in reliance on the principle that Article 14 does not lay down an exhaustive list of suspect grounds of discrimination but is merely illustrative. This means that unjustified discrimination on these grounds in the enjoyment of Convention Rights will be in breach of the Convention. In Da Silva itself, a father’s custody of his child was in question. Discriminatory policies or individual decisions where private and family life are affected, inter alia in the field immigration law, will now be subject to scrutiny, and will have to be objectively and reasonably justified.

It is possible that, in the light of this decision, the EctHR’s insistence that a same-sex couple do not enjoy ‘family life’ together may not be sustainable for very much longer. (McGlynn, 2000) It would indeed be odd and contradictory for the Court of Human rights itself to reject as prima facie ‘not acceptable’ any distinction in enjoyment of the Convention rights based purely on the sexual orientation of an individual or couple in the law or practice of a Contracting State, while still preserving the same kind of distinction itself in denying the social reality of the longstanding, stable same-sex couple being a ‘family’ unit. This is particularly so given that it is prepared to go behind legal formalities to accept the social reality of the family life of, as discussed above, inter alia, unmarried couples, illegitimate children, and a post-operative transsexual’s relationship with his partner’s child.

The relationship between Article 8 of the Convention and the immigration law and practice of Contracting States can be summarised in six basic statements.

1. The Convention contains no provision specifically dealing with migration, or immigration. Subject to international obligations, Contracting States remain free to regulate the immigration and expulsion of non-nationals from their territory.

2. The exclusion of entry and deportation of non-nationals is in principle subject to the Convention. In particular, Article 3 prevents return to torture or inhuman and degrading treatment, and Article 8 may prevent the interference with the family or private life of the individual.

3. Generally, if there is any substantial connection with the deporting or excluding state the ECtHR will accept that there is prima facie a breach of Article 8.

4. The fundamental starting point for the analysis of the ECtHR as to whether there has in fact been an unjustified interference in the private or family life if there is a refusal to authorise entry for family reunification, or a deportation, is that the Convention gives no general right to chose the location of family life.

5. There is also a readiness to accept that States have a legitimate interest both in controlling immigration generally,⁽⁸⁾ including maintaining immigration policies motivated by economic considerations, and controlling serious criminal behaviour, by exercising its right to deport or exclude non-nationals.⁽⁹⁾ The question then becomes one of balancing these two interests - the interest of the individual in having family life protected and respected against the interest of the State in upholding the exclusion or deportation.

6. The consequence of these assumptions is that immigration rights of unmarried couples have in the past been held to be ‘special protection’, which can as a matter of general policy, be withheld from same-sex couples. (X and Y -v- UK (Case 9396/81), WJ and DP -v- UK, (Case 12513/86) C and LM -v- UK, (Case 14753/89) and ZB -v- UK (Case 16106/90)). Only clear and convincing evidence that the couple cannot continue family or private life elsewhere might lead to a finding that the Contracting State has breached Article 8.⁽¹⁰⁾ It is likely that this same analysis would apply to immigration rights for opposite-sex unmarried couples.

To illustrate these propositions, I shall now examine in more detail how the Convention has approached challenges to general immigration policies. Individual immigration decisions have also come under scrutiny before the ECtHR, but I shall not examine this issue in detail in this paper, other than in so far as it is relevant to the extent to which the ECtHR is prepared to accept a Contracting State’s decision not to depart from a general policy in a particular case.

The UK authorities did not automatically permit entry for the individual’s spouse - even if the individual was a UK National. The husband of a woman settled in the UK was subject to stricter rules than the wife of a man settled in the UK (although in both cases the rules were not as favourable as is the case under Community Law). Three women sought admission for their husbands and were refused. They challenged this refusal in the ECtHR (Abdulaziz, Cabales and Balkandali (1985) 7 EHRR 471).

The ECtHR confirms that the immigration regulations of the Contracting States, and the way they exercise them, are in principle subject to scrutiny under Article 8. Yet it also concludes that the right to live with a spouse, although protected by Article 8, is not protected so strongly as to give rise to a presumption that the State must allow free choice of residence. ‘The dilemma either of moving abroad or being separated from one’s spouse is inconsistent with this principle [the obligation of the State to respect private and family life]’, the applicants suggest. The ECtHR however insists that ‘The duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country.’ The ECtHR asserts that the applicants ‘have not shown that there were obstacles to establishing family life in their own or their husbands’ home countries or that there were special reasons why that could not be expected of them.’ They also suggest that in all cases the couples were or should have been aware on their marriages that there was little or no chance under the rules in force regarding entry or leave to remain. The only possibility was that the rules discriminated on the grounds of sex, and this complaint was upheld. Other subsequent cases have repeated the basic approach set out in Abdulaziz, and confirm that the Contracting States are free to deny entry to second or subsequent wives in polygamous marriages, and to maintain policies which do not automatically grant settlement rights to spouses, particularly policies which deny settlement on the basis of a marriage contracted after a deportation order has been served or expulsion decision made.⁽¹¹⁾

Where a married couple suggest that they would face difficulties in settling overseas, even in the State of Nationality of the other partner, the most recent case, Boultif v Switzerland (Application 54273/00, not yet reported) seems to indicate something of a new direction. In this case, the ECtHR specifically notes that it has not had extensive opportunity to consider the situation where there are significant obstacles to the migration of the couple to the State of origin of the Non-National to continue their family life there. The ECtHR notes that it ‘has only to a limited extent decided cases where the main obstacle to expulsion is the difficulties for the spouses to stay together and in particular for a spouse and/or children to live in the other’s country of origin. It is therefore called upon to establish guiding principles in order to examine whether the measure was necessary in a democratic society.’ This it proceeds to do as follows. ‘In assessing the relevant criteria in such a case, the Court will consider the nature and seriousness of the offence committed by the applicant; the length of the applicant’s stay in the country from which he is going to be expelled; the time elapsed since the offence was committed as well as the applicant’s conduct in that period; the nationalities of the various persons concerned; the applicant’s family situation, such as the length of the marriage; and other factors expressing the effectiveness of a couple’s family life; whether the spouse knew of the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage, and if so, their age. Not least, the Court will also consider the seriousness of the difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself exclude an expulsion.’

In Boultif the ECtHR found that there had been a violation of Article 8. It considered that the threat to public policy was, comparatively speaking, only moderate. Although the husband had committed a serious offence of violent armed robbery, he had not re-offended since 1994, had retrained as a waiter and painter, had found work since his release, and had a contract prepared for future gainful employment, conditional on his residence permit being renewed. Rehabilitation and re-integration into society was seemingly progressing quite well. Indeed, in the circumstances, it is difficult to envisage much more that the applicant could have done since his conviction to show himself to be rehabilitated and no longer a continuing threat to Swiss public order. On the other hand, the wife (the Swiss National) did not speak Arabic, although she had established a degree of communication with her mother-in-law in French. She was employed in Switzerland, economically independent of her husband, had never lived abroad and had not visited Algeria. The ECtHR considered that there would be significant practical obstacles to her moving to Algeria with her husband, and that it would be unreasonable to expect her to do so.

In the light of these points, the ECtHR considered that, when the interests of Switzerland were balanced with the degree of interference in the family life of the couple and the unreasonableness of the expectation that the wife might move to Algeria, the refusal of continued residence was not justified. The case does seem to indicate a new direction for the ECtHR, and a greater willingness to take seriously applicant couples’ complaints that they cannot reasonably be expected to migrate together elsewhere. It is however notable that the ECtHR still insists that some difficulties in the spouse settling abroad will not necessarily exclude an expulsion, and it is still very far from suggesting that Contracting States are under any general obligation to respect family life by permitting settlement of spouses.

There seems to be little or no discussion in the ECtHR jurisprudence concerning the immigration rights of opposite-sex unmarried couples, and whether an immigration policy making no general provision for settlement of such partners would be in breach of Article 8. It seems to be assumed that this kind of immigration policy is permissible, as the United Kingdom amongst other States, has maintained such a policy for a number of years.⁽¹²⁾ Only in the last few years has this been subject to any real relaxation, and this only in respect of couples who cannot marry. The closest that the ECtHR gets to considering this question is to indicate that Contracting States remain free to grant ‘special protection’ to the traditional married family. It might well be assumed⁽¹³⁾ that the right of the unmarried opposite-sex partners to reside together in the Contracting State at present falls within this class of ‘special protection’ which Contracting States remain free to restrict to ‘traditional’ families.

The issue has more often arisen in the situation of same-sex couples, who until recently have not been able to marry, and remain unable to do so in the vast majority of States.⁽¹⁴⁾ X and Y -v- UK is the first case in which the European Commission on Human Rights considered the specific question of whether the denial of residence permits to same-sex partners could be seen as a violation of Article 8, together with or separately from Article 14. It is particularly noteworthy that this is an admissibility decision rather than a full judgment of the Court. There is no fully reasoned decision of the Court, just a decision by the Commission that the case is ‘manifestly ill-founded’ and therefore inadmissible.

The Commission reasons as follows. A same-sex couple do not have a relationship protected by the concept of ‘family life’ within the meaning of Article 8. This is ‘despite the modern evolution of attitudes towards homosexuality.’ However, ‘certain restraints on homosexual relationships’ can constitute a violation of private life within Article 8. Dudgeon is cited in support of this. The refusal of a residence permit for the same-sex partner is not a violation of this respect for private life as protected by Article 8, either generally or in the circumstances of the particular case. The Commission gives several reasons for this. It notes that there is no absolute right under Article 8 of the Convention to chose the location of the family’s residence. ‘The respect for family life does not necessarily include the right to chose the geographical location of that family life’. It also notes that the UK authorities have apparently given careful consideration to all of the issues, the applicants were both professionally mobile (they had both apparently worked abroad previously), and it had not been shown that they would be unable to live together anywhere other than the United Kingdom, or that the link with the UK is ‘an essential part of the relationship.’ This is despite the fact that the two had in fact gone to Malaysia when they decided to live together, but the British partner had only been granted limited residence and had not been granted permission to work. This was why they had come back to the United Kingdom. It is apparent that the couple were in fear of ill treatment, (social isolation and ostracism and even prosecution as homosexual behaviour remained at the time an offence under Malaysian law) if they returned to Malaysia. As to discrimination there are two points made. First, because the same-sex couple do not enjoy ‘family life’ together under Article 8, it is not possible to compare that couple to a couple who are treated as ‘family’ under the immigration law of the UK. Second, the only proper comparator is said to be a female same-sex couple. This couple of course would face exactly the same problems as the male same-sex couple so the Commission determines that there is no discriminatory interference with private life.⁽¹⁵⁾

Same-sex couples have continued to use the Convention to challenge immigration decisions and to probe more deeply into exactly when a decision to deport or not to admit a same-sex partner might be vulnerable to challenge (WJ and DP, C and L.M., Z.B ). In all of these cases, the Commission refuses to recognise any general right of settlement for same-sex partners as part of the Contracting State’s obligation respect the couple’s ‘private life’ - this in itself is perhaps not surprising given the attitude to family life of married couples. The Commission refuses to consider the long stay of the partner, potential destitution and poverty of the mother and child on deportation, and quasi-parental relationship of a young child with the British National partner (ie, not the birth mother) as exceptional circumstances (C and LM). Nor is the criminalisation of homosexual conduct in the home country of the other partner any reason to depart from the general view that private life might be interfered with by the deportation of that partner (ZB). It still maintains that, in theory, the inability of the couple to continue their private life elsewhere might make deportation a violation of Article 8, yet in none of these cases does it take seriously the practical obstacles to the couple continuing their private life elsewhere. If none of these cases present instances where the Commission could find ‘exceptional circumstances’ that might justify the applicant’s case that deportation would be a violation of Article 8, it is hard indeed to imagine what would. These cases are all the more unsatisfactory in that the arguments are dismissed as ‘manifestly unfounded’, without the fuller discussion and more detailed scrutiny that might have been possible if the case had gone to the ECtHR. However, given that the ECtHR has, in Boultif, embarked on a closer scrutiny of the real possibilities of a married couple to live together elsewhere, it is certainly possible that this approach might be extended to cases involving unmarried couples, whether same-sex or opposite sex, in the future.

Although there seems to be a marked reluctance on the part of the Commission to say that in the particular circumstances the interference with the ‘private life’ of the same-sex couple is disproportionate, the French Conseil d’Etat, in Marrousitch, has recently broken new ground (Errera, 2000). The principle set out by the ECtHR that deportation of one of a same-sex co-habiting couple could in principle be a violation of private life, is used successfully for the first time⁽¹⁶⁾ to challenge and prevent the decision to deport a non-national purely on the basis that he enjoyed ‘private’ life with his partner in France and that the deportation would be a disproportionate interference with this. It is a logical, unsurprising and welcome result, given the position repeated several times by the Commission, and the seemingly continued reluctance of some contracting states to recognise same-sex relationships to be a valid ground for settlement in the intended Host State. It is however probably not accidental that this first successful use of Article 8 in this context has been by a national court, not by the Commission or the ECtHR itself.

The interaction between Community migration law and Article 8 of the Convention raises questions in two areas; the concept of ‘family’ and the discretion of Member States to define the family unit, and the discretion available to Member States in regard to their immigration law and policy.

The concepts of family are different. As we have seen, the ECtHR looks to the substance of the relationship. Therefore, Contracting States are somewhat constrained in the way they treat different family relationships, and de facto family life must be respected. However, this does not mean that there is a principle of complete equality between married and unmarried couples. Contracting States still remain free to grant certain types of ‘special protection’ (apparently including under the Convention regime, immigration rights) to the traditional family made up of a married couple. Nevertheless, the ECtHR has moved significantly towards the acceptance of different forms of family life, towards the acceptance of same-sex relationships as ‘private life’, and has held unjustified discrimination on the grounds of sexual orientation in the enjoyment of Convention rights to be contrary to Article 14.

Community law on the other hand has been significantly slower to travel down this road. The Community concept of ‘family’ has often been criticised for being excessively traditional and narrow (McGlynn, 2000). In EC migration law, protection for unmarried and same-sex couples is minimal. Member State governments remain unwilling to amend Community Law, and the Commission’s most recent proposal reflects this unwillingness. A somewhat more hopeful sign however is the case of Safet Eyup, (Case C-65/89) in which it is accepted that the intention of the legislation in question was to protect ‘de facto’ family life. The Turkey Association Agreement was interpreted as applicable to a wife who had been divorced from her husband but living with him for eight years (during which they had four children) before they remarried. The somewhat more usual position of an unmarried couple who have never been married has yet to be determined by the Court, but is currently before the Court of Justice in another pending case (Case C-407/99, Pathminidevi -v- Landeskreditbank Baden-Wurterburg-Forderbank). There may be an increasing willingness in the Court of Justice to embrace some degree of protection for the ‘de facto’ family, in the same way as has happened in the ECtHR. However, this by itself would only be the first step in what might be a long road towards protection of immigration rights for unmarried partners, whether by the Court of Justice or through the Community legislative process.

There are some crucial assumptions underlying the caselaw of the ECtHR, which drive the Court towards a limited review of Contracting States’ policies and decisions in the field of immigration. There are four assumptions that the ECtHR makes when applying Article 8 to immigration law which seem particularly problematic in the context of Community Law.

1. The Convention itself does not give an individual a right to travel to or reside in another Contracting State.

2. The Convention does not protect the individual’s private and family life to the extent of giving him or her a prima facie right to choose where to conduct that family life or private relationship.

3. In particular, the real possibility of family life being conducted elsewhere will often be relevant. The ECtHR is more reluctant to accept that there has been a violation of Article 8 if the family can reasonably be expected to set up home or continue living together elsewhere.

4. The economic interests of the Host State are a legitimate concern of the authorities, both when determining general immigration policy and determining how rigidly to adhere to it when an applicant seeks to demonstrate ‘exceptional circumstances’.

Replicating these statements replacing ‘the Convention’ with ‘Community Law and Member States in implementing Community Law’ seems problematic (Lundstrom, 1996). The EC Treaty does of course give the individual EU Citizen a right to ‘move and reside freely throughout the territory of the Member States’.⁽¹⁷⁾ So the first assumption is simply wrong. However, the obvious response to this is that this, at best, only places the Community Migrant, vis-a-vis a Host Member State, in the same position as the National of a Contracting State under the Convention, or an immigrant lawfully settled there. As we have seen, this in itself does not automatically require the Contracting State to respect the choice of matrimonial or family residence. The second assumption, that the Convention does not itself require the Contracting States to respect family life by authorising family reunification in the Host State, can also be questioned in the Community law context, both in relation to secondary legislation or by reference to general principles. The importance of the right of the migrant to be accompanied by his or her immediate family members, and on favourable terms, is recognised by the Community Institutions in that no Member State National has ever had a right of residence granted, clarified or confirmed by secondary legislation without provision for some kind of family reunification,⁽¹⁸⁾ included. As regards immediate members of the family such as spouse, minor child, or perhaps unmarried partner, principles of Community Law inherent in the Treaty itself can arguably be used to assert a right of residence.⁽¹⁹⁾ In particular, it could be suggested that the inability of the migrant EU citizen to bring an unmarried partner with him or her is either a non-discriminatory barrier to the exercise of the fundamental freedoms protected by Community Law, or a measure that in practice discriminates against migrants because they are more likely to have relationships with Third Country Nationals requiring residence permits in their own right in the new Host State.⁽²⁰⁾ If this is so, then the policy must be justified. The third point, that the real possibility of family life being conducted elsewhere will often persuade the Court that there has been no breach of Article 8, again seems difficult to reconcile with basic principles of Community Law. The entire structure of the Community’s ‘internal market’ or ‘free movement’ law is based on precisely the opposite assumption. Just because the Italian or German National could work and/or continue his or her family life in Italy or Germany is no reason why he or she should be prevented from chosing to work and/or to conduct that family life elsewhere in the Community. The entire structure of free movement law is built on the concept that borders should be eliminated as far as possible. Buyers and sellers of goods and services, and individual Member State Nationals contemplating a change of job or residence, should as far as possible be able to chose freely whether to remain in one State or to migrate across the Community’s internal borders to buy, sell, work or live. The consequence of this of course is that⁽²¹⁾ the Treaty Articles give directly effective rights to traders and individuals to challenge National measures which obstruct the exercise of these freedoms. Finally, economic justifications for measures which restrict the fundamental freedoms of Community Law are generally not permitted. If the argument that immigration restrictions on certain immediate family members are potential infringements of fundamental freedoms protected by EC law is accepted, then this should apply here also. At the very least, the principle of proportionality could be used to suggest that the imposition of a requirement of sufficient means is all that should be imposed. If these differences are taken into account, the ECtHR’s conclusion that immigration rights for unmarried couples can be included in the category of ‘special protection’ which can legitimately be withheld from the non-traditional family has to be questioned in the context of Community migration Law.

More attention should therefore be given to developing a distinctive understanding of what ‘respect for private and family life’ means in the particular context of Community migration law. My suggestion is that in this context, respecting family and private life should be recognised as entailing a prima facie obligation to respect the family’s choice of residence by authorising family reunification. The ECtHR has also repeated that the reality of family life must be taken into account, and that the ‘de facto’ family is protected by Article 8 as well as the more traditional married family. In the light of these points, a strong argument that Community law, and Member States applying it, must at least put in place rules allowing for family reunification of unmarried couples begins to take shape. This will however probably not be seen to be necessary unless either the Community Institutions or the Court of Justice are able to develop a distinctive concept of what respect for family and private life entails in Community migration law. My final task in this paper is to assess briefly the prospects of such a distinctive ‘Community’ approach to this issue.

The Community Institutions have developed the basic Treaty Articles into a sophisticated regime of migration law applicable to EU Citizens and their families. The Commission has shown itself to be committed to continuing to develop the acquis communitaire in this field, commissioning a High Level Panel report on the Free Movement of Persons, publishing Communications on the implementation of the various Directives (Commission, 1999, 1999a) and most recently publishing a proposal for a new Directive on the Rights of Residence of EU Citizens (Commission, 2001).

Nevertheless, in respect of unmarried partners, there is little indication that the Community Institutions are willing to take up this challenge. The migration rights of unmarried partners is a deeply divisive issue. There seems to be no consensus at present,⁽²²⁾ and little chance of Member States reaching agreement on this particular point rather than leaving it as a matter within the discretion of Member States to develop and implement their own policies. Moreover, the attentions of those involved in this area of Community law are currently engaged in developing other aspects of Community immigration law, such as the rights of asylum seekers and refugees, and the position of Third Country Nationals generally, whether long-term residents or those seeking entry to a Community Member State in order to pursue an economic activity. In relation to EU Citizens, the Commission’s recent proposal (Commission, 2001) concentrates on safeguarding and further protecting the rights of long-term resident EU Citizens and their family members, and reducing administrative requirements to the minimum necessary. Although there is some development of the definition of the ‘family’ member, the rights of unmarried partners, seem unlikely to gain a sufficiently committed and powerful advocate within the legislative process in such a way as to have any realistic prospect of success in the near future.

The most recent indications from the Court of Justice are at best equivocal. Advocate General Geelhoed in Baumbast (Case C-413/99) considers the relationship between the Convention and Community law. He does accept that Community Law may, using its own principles, be able to grant rights of residence which ‘do justice to’ the right to respect for family and private life under Article 8 of the Convention, even if Article 8 as interpreted by the ECtHR might not require the particular right in question to be recognised. This is a welcome acceptance that Community Law can and should be able to develop higher levels of protection than the Convention as interpreted by the ECtHR might require, if this is appropriate in the context of Community Law.

However, he does not find it necessary to determine whether this right of residence in question (of the parent-carer of a child who has a right of residence in the country) is required by the Convention. He considers that the right of the second parent is not required under the Convention or Community Law, and seeks an alternative basis for the right of the father to reside in the UK. In discussing this, he specifically cites, with approval, the principle taken from ECtHR caselaw that the obligation of the State to ‘respect’ the individual’s private and family life does not require the Contracting State to respect the choice of family residence by authorising family reunion in its territory. As discussed above, this assumption seems contrary to the Community Law concept of free movement of persons - at least if applied to immediate family members that might be expected to live in the same house as the migrant, such as spouse, unmarried partner, or minor child. It seems inappropriate to assume that this is what is required by Article 8 of the Convention and the Charter in the context of the migration rights of EU Citizens. If this more restrictive and negative attitude persists, it seems unlikely that the ECtHR jurisprudence will be of significant benefit to unmarried couples seeking to use Community law to enable them to migrate together.

A paper such as this would hardly be complete without making some reference to the EU’s Charter of Fundamental Rights solemnly proclaimed at Nice. What effect, if any, will this have on the matters discussed above? The Charter contains several obvious similarities to text of the Convention itself. In particular, Article 7 declares that ‘Everyone has the right to respect for his or her private and family life, home and communications’. This echoes Article 8 of the Convention, although without the qualification specifically related to Article 8 contained in the Convention.⁽²³⁾ As regards discrimination, the Charter states more clearly and explicitly (Article 21) than the Convention that discrimination on the grounds of sexual orientation is prohibited. This applies not just to the enjoyment of Convention (or Charter) Rights. This of course raises the question, not yet addressed by the ECtHR since Da Silva, of whether refusal of settlement for a non-national same-sex partner is justified under Articles 8 and 14 together. More generally, these provisions reinforce the link between the Charter and the Convention, and make the ECtHR jurisprudence an obvious starting point for determining the meaning and scope of these particular Charter rights. This is confirmed by Article 52 of the Charter which states that ‘In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention.’ This approach echoes that of Advocate General Geelhoed in Baumbast, discussed above.

However, the Charter also contains other provisions. Other additional relevant provisions include Article 33 (‘the family shall enjoy legal, social and economic protection’), and, in cases where children are involved, Article 24 (‘In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration’, and ‘Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests’). Most importantly, in Article 45 it recognises the EU Citizen’s right to ‘move and reside freely within the territory of the Member States,’ repeating the rights contained in the EC Treaty. In relation to the relationship between the Charter and the Convention, and the extent to which Charter Rights may be limited, Article 52 is of crucial importance. It states that ‘This provision shall not prevent Union Law providing more extensive protection’. This would certainly prevent any argument that the less generous protection of immigration rights under Article 8 of the Convention was the greatest level of protection that Union law could grant. More importantly, the same Article provides that ‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect rights and freedoms of others’. This raises in acute form the complex question of whether refusal of settlement for unmarried partners respects the ‘essence’ of the rights and freedoms contained in the Charter provisions of Article 7 and 45, and whether the Charter and EU law can or should, if faced with the issue of unmarried partners migration rights, take a narrower approach to the extent of permissible limitations on the Charter rights than does the ECtHR in relation to the Convention.

This brief examination of the Charter seems to leave open the fundamental question raised above, of whether the Community Institutions, Member States or Court of Justice can develop a distinctive understanding of what respect for family and private life means in the context of Community migration law. The Charter does not point unambiguously in this direction,⁽²⁴⁾ but certainly leaves sufficient scope for this kind of development and does not rule it out.

The application of Article 8 of the Convention and its requirement to respect private and family life to migration rights of EU Citizens in EC law may not be unproblematic, particularly in relation to unmarried partners. When the inherent flexibility of the concept of respect for family and private life and the arguably unique background of Community Law is taken into account, a strong argument begins to take shape. This argument would assert that for the Community and its Member States, the obligation to respect family and private life requires the development of immigration rights for unmarried partners. Whether this argument is accepted depends to a very great extent on the extent to which the differences between the Convention and Community Law are recognised. In particular, how far the Court of Justice or the other Community Institutions are able to develop a distinctive understanding of Article 8 that is appropriate to the Community’s legal order in the context of migration and residence rights will be crucial. The Charter of Fundamental Rights seems unlikely to provide a simple answer to this question, and the prospects of such a distinctive ‘Community’ approach to respect for family and private life in migration law seems at best uncertain.

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⁽¹⁾ It is not intended that this paper should focus particularly on the position of couples with children.

⁽²⁾ This term is used throughout this paper to denote a National of a Member State who fulfils the conditions for exercising the right of residence under Community Law, either as economically active or economically self-sufficient.

⁽³⁾ I do not intend to defend this point fully in this paper.

⁽⁴⁾ This provision is currently contained in Rule 295D-0, replacing the previous concession as of 2 October 2000. See Stonewall (2000) and other information on the Stonewall Immigration Group website,<http://www.stonewall-immigration.org.uk>.

⁽⁵⁾ There are precedents for this kind of interpretation, see Fitzpatrick v Sterling Housing Association [1999] 4 All ER 705. It was however rejected by the High Court in McCollum, (High Court, February 2001, not yet fully reported) although an appeal is pending to the Court of Appeal.

⁽⁶⁾ In McCollum, the High Court considered this provision did not give directly effective rights to an unmarried same-sex partner. See also the terms of SI 2000/2326, which mirrors the provisions of Regulation 1612/68 (apart from the requirement that the individual be a ‘relative’). In particular, admission is discretionary and may be granted if ‘if in all the circumstances it appears appropriate to the decision maker to do so’.

⁽⁷⁾ For details, see generally the relevant chapters in Van Dijk and Van Hoof, 1998, Kay and Bradley, 2000, and Clayton and Tomlinson, 2000. See also Duffy (1982), Feldman, 1997 and Liddy, 1998.

⁽⁸⁾ Particularly relevant when general immigration policies are scrutinised.

⁽⁹⁾ Particularly relevant when deportations on the basis of criminal behaviour are concerned.

⁽¹⁰⁾ Although in the light of subsequent developments regarding the position of married couples, it may be the case that a somewhat more sympathetic attitude is emerging in relation to this point.

⁽¹¹⁾ See for example cases such as Choudhry -v UK (Application 27949/95), Solomon (Case 44328/98). In relation to wives and children of polygamous marriages see Khan, (Case 23860/94), Bibi (Case 19628/92), El Abasse (Case 4561/89) and M and OM (Case 12139/86).

⁽¹²⁾ However, Clayton and Tomlinson, 2000, suggest that this policy might be open to challenge under the Human Rights Act, 1998.

⁽¹³⁾ Given the Court’s response to applications from same-sex couples, discussed below.

⁽¹⁴⁾ The only exceptions to this are the Netherlands and now apparently Germany, although a number of other countries (inter alia, Denmark, Sweden, France) have provisions for registered partnerships.

⁽¹⁵⁾ Whether this approach will survive Da Silva is doubtful.

⁽¹⁶⁾ Errera, 2000. I am not aware of any other cases before or since in which an individual decision involving a same-sex couple’s residency rights or a general policy on the residency rights of same-sex partners has been successfully challenged by means of Article 8.

⁽¹⁷⁾ Article 18 EC. Although not enacted on the legal basis of Article 18, the precise conditions for exercising this right are laid down in Directives 90/364, 90/365, and 93/96. It is generally assumed (see inter alia Case T-66/95 Kuchlenz-Winter, [1997} ECR II-637, appeal rejected by the Court of Justice, Case C-228/97P, and the Opinion of Advocate General Alber in Case C-184/99, Grzelczyk, although there is as yet no definitive decision in the Court of Justice) that the individual must comply with the conditions in these Directives, although cf the recent Opinion of AG Geelhoed in Baumbast. Similar rights are contained for the economically active in Articles 39, 43 and 49.

⁽¹⁸⁾ Which always at least the spouse and minor children.

⁽¹⁹⁾ I do not intend to defend this point extensively here. See also Guild, 2001.

⁽²⁰⁾ Instead of Third Country Nationals already having residence permits for that State.

⁽²¹⁾ Subject to somewhat different details in relation to goods, services, and persons, particularly in relation to whether discrimination or differential impact on market access is required. See most recently Barnard, 2001.

⁽²²⁾ As demonstrated by the unwillingness of the Commission or the Council to include unmarried partners in the definition of ‘family member’ both in the Directive proposing family reunification rights and in the proposal for the Directive on EU Citizen’s residence rights (Commission, 1999b, 2001). See also the comments in the report of the High Level Panel, 1997.

⁽²³⁾ The provisions of Article 52 fulfil this function in the Charter.

⁽²⁴⁾ For a critique of the Charter provisions on the family in general, see McGlynn, 2001.