Family reunification and article 8 ECHR: three steps towards a fairer balance

Abstract

When must states allow families to live together on their territory if this does not accord with national immigration laws? This question has been addressed through a wide jurisprudence on article 8 ECHR and family reunification. The factors to be considered are now reasonably clear but, this article argues, the underpinning principles lack coherence, and the Strasbourg Court awards the interests of states an overwhelming weight that often makes little doctrinal sense even within the positive obligation framework. This is a pragmatic position but, as a result, family life is protected relatively rarely. However, although the advances in favour of family reunification have been gradual and, in some ways, problematic, they point the way towards a more cogent set of principles. In a world where the needs of mixed status families were better recognised, a few small adjustments to the Court’s approach could result in better protection for families while acknowledging that control over admission and stay remains a key concern for states.