Family Life and Family Reunification
4 IN THE NETHERLANDS family migrants make up the majority of the target group of the Act on Integration Abroad. If a family member fails to pass the integration exam and is consequently denied admission, both he or she and the family member(s) in the Netherlands are obstructed in the enjoyment of their family life. This chapter examines whether this situation is in accordance with the right to family life, as protected by various human rights treaties. Firstly the legal standards that can be derived from these treaties with regard to the admission of aliens for the purpose of family reunification are examined. The initial issue addressed in this respect is whether the right to family life includes a right for family members to be admitted to the state where the rest of their family is living. Where such a right is found to exist, the next question examined is whether its exercise may lawfully be made subject to the fulfilment of integration requirements. The provisions examined in the course of this chapter include, first and foremost, Article 8 of the European Convention on Human Rights (ECHR).1 European Court of Human Rights case law has with some regularity addressed the question of whether refusing to grant legal residence to an alien violates the right to respect for family life. This case law is discussed in section II. The right to family life is also protected by Articles 17 and 23 of the International Covenant on Civil and Political Rights (ICCPR).2 While these provisions have not given rise to the same amount of interpretative activity by international monitoring bodies as Article 8 ECHR, the Human Rights Committee has been asked on several occasions to comment on Articles 17 and 23 ICCPR in immigration contexts (section III). Thirdly, standards concerning the admission of family migrants can be found in the Convention on the Rights of the Child (CRC).3 In particular, Articles 9 and 10 CRC guarantee the right of children not to be separated from their parents, which may also be at stake in immigration cases (section IV). In addition to the above guarantees a right to family reunification is laid down in the EU Directive on Family Reunification (section V).4 Unlike the above human rights provisions, the Family Reunification Directive (FRD) explicitly mentions the possibility of imposing integration requirements. The examination of this directive therefore focuses on determining the possible contents of such requirements, as well as the criteria relating to their application. Where available and relevant, Dutch case law with regard to the Act on Integration Abroad is taken into account in relation to each of the legal instruments discussed in this chapter. Section VI gives a summary of the legal standards encountered. Next, section VII examines whether the Act on Integration Abroad is in accordance with these standards. The chapter closes with some concluding observations on integration requirements and the right to family life. Article 8 of the European Convention on Human Rights states that everyone has the right to respect for their family life. This provision is especially relevant for the Netherlands as the right to family life is not mentioned as such in the Dutch Constitution. Its relevance has moreover increased as the European Court of Human Rights (ECtHR) has clarified the scope and meaning of Article 8 ECHR in what has become a substantial body of case law. The following examination focuses on those cases in which the Court was asked to decide whether a Contracting State’s refusal to admit family members of legal residents in that state violated the right to family life as protected by Article 8 ECHR (hereafter referred to as ‘admission cases’). Given the purpose of this study, this examination aims to determine whether and under which circumstances violation of Article 8 ECHR could occur if admission is refused on the grounds that the person concerned has not complied with integration requirements set by the Contracting State. To answer this question, it is necessary to describe the Court’s approach to admission cases in some detail. Before considering the significance of Article 8 ECHR for admission cases, some general remarks regarding the scope of this provision are in order. The concept of ‘family life’ has been defined by the ECtHR in rather broad terms, referring to factual rather than legal relationships between family members.5 As far as couples are concerned, family life is considered to exist between unmarried as well as married partners, providing the relationship has a certain degree of intensity and durability.6 Family life is furthermore taken to exist between parents and minor children from the moment of the child’s birth, save in exceptional circumstances.7 Relationships other than those between partners or parents and minor children (the ‘core family’) may also qualify as ‘family life’ under Article 8 ECHR. However, the ECtHR has held that, in immigration cases, there is no family life between parents and adult children unless ‘additional elements of dependence’ surpassing the existence of ‘normal emotional ties’ are demonstrated.8 As to the contents of the right to family life, Article 8 ECHR clearly encompasses the right to live together and to enjoy each other’s company.9 In situations where parents live separated from the children, for example after a divorce, they are nevertheless entitled to maintain access to their children in the form of regular contacts and visits.10 In both cases it follows that the exercise of family life may be hindered if one of the family members is not admitted to a Contracting State in which another family member is living. This was recognised for the first time in the case of Abdulaziz, which concerned three women who were lawful residents of the United Kingdom and sought to be reunited with their husbands in that country. The ECtHR acknowledged that, under certain circumstances, ‘measures taken in the field of immigration may affect the right to respect for family life’.11 However, as demonstrated below, this does not mean that the right to family life also implies a right for family members to be admitted to the territory of a Contracting State. Court of Human Rights ECtHR case law on the right to family life has consistently held that states have the right to control the entry of non-nationals into their territory and that Article 8 ECHR does not impose a general obligation on states to respect the choice by married couples of the country of their matrimonial residence.12 Article 8 ECHR does not, therefore, entail a general right to family reunification in the state where one of the family members is living. However, this has not precluded the ECtHR from examining, in the cases brought before it, whether there existed special circumstances that meant that a Contracting State’s refusal to admit the family members of lawful residents constituted a violation of Article 8 ECHR. The Court’s approach in these cases is set out below. For a better understanding of the case law, some attention is paid first to the distinction between ‘positive’ and ‘negative’ obligations and the criteria applied by the ECtHR to determine whether Article 8 ECHR has been violated. Conceptually, a distinction can be made between ‘positive’ and ‘negative’ obligations, both of which are inherent in a state’s duty to safeguard human rights. A negative obligation is usually defined as a duty on the part of the state to abstain from acting where such action would interfere with the exercise by individuals (or groups of individuals) of their human rights (such as the obligation not to break up a demonstration). By contrast, a positive obligation entails a duty on the state to take action to ensure that human rights are effectively secured (such as the obligation to hold regular elections).13 Related to the distinction between positive and negative obligations, at least in the context of Article 8 ECHR, is the way in which the ECtHR approaches the question of whether the Convention has been violated. Where a negative obligation is involved, the Court first establishes whether the state has interfered with this obligation (by, for example, taking children out of the family and placing them in a home). If interference is found, the Court then examines whether this interference is justified because it complies with the criteria in the second paragraph of Article 8 (in which case there has been no violation). These criteria entail that the interference must be prescribed by law and must be ‘necessary in a democratic society’ in order to achieve one of the legitimate aims mentioned in the provision (the ‘necessity test’). It is up to the respondent state to show that sufficient justification is available. On the other hand, where a positive obligation is at stake, the ECtHR does not seek to establish whether there has been an interference, nor whether the alleged lack of state action is justified under Article 8(2) ECHR.14 Instead the existence or non-existence of a positive obligation is determined by the ‘fair balance’ test, whereby the interests of the individual applicant(s) are weighed against the general interests of the Contracting State. Where the latter outweigh the former, the Court will conclude that the state was not under a positive obligation to secure the right to family life. By contrast, where the individual interest prevails it will be concluded that there was a positive obligation that was not fulfilled and that the right to family life has been violated. Hence, unlike in the case of a negative obligation, the extent of the state’s obligation and the existence of justification are determined by means of a single test,15 with the criterion being that a fair balance must be struck between the general and the individual interests. Both the above tests require there to be a certain relationship of proportionality between the interests of the state and the obstacle created for individuals in enjoying their family life. Nevertheless, the ‘fair balance’ test is less precise than the necessity test because it does not specify which state interests can justify interference with the right to family life and does not require the respondent state to demonstrate that the interference was necessary to achieve a ‘pressing social need’ (which is part of the ‘necessary in a democratic society’ criterion). Perhaps even more significant is that, under the fair balance test, the Court does not conduct the proportionality test on the assumption that the interests of the individual amount to a fundamental right. For these reasons, it is generally contended that a violation is less likely to be found when the ‘fair balance’ test is used and, therefore, that this test offers a lower level of protection to those applying to the Court.16 The distinction between positive and negative obligations is not always easy to make in practice: often a decision taken by state authorities can be defined both as an action and as a refusal to act. With regard to admission cases this is due in part to factual circumstances. To illustrate this, compare the situation of a person who is outside the state where his or her family lives and is seeking to be admitted with the situation of a person who is already present illegally within the state and is asking not to be removed. While the latter case can more readily be portrayed as one involving a negative obligation, both applicants are in essence seeking the same thing, namely leave to reside. However, the problem also exists on a more fundamental level as, theoretically, requiring people to ask for permission to reside in a particular state can be considered as the creation of an impediment to such residence, while refusing to grant permission can be seen as a failure to enable it.17 It is perhaps, therefore, no surprise that the ECtHR has thus far steered a rather wobbly course concerning both the determination of the nature of the obligations involved in admission cases and the test to be applied. Originally, the Court treated these cases as involving a potential positive obligation on the part of the Contracting State and refrained from testing whether the lack of state action was justified under the second paragraph of Article 8 ECHR.18 This approach, however, was subject to criticism both in and outside the Court.19 Later ECtHR judgments have often – though not always – refrained from qualifying obligations to admit family members as either negative or positive, stating instead that ‘the boundaries between [both types of obligation] do not lend themselves to precise definition’. To this the Court has added that the ‘applicable principles’ are, nevertheless, 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.20 As could be seen above, however, the fair balance test can be distinguished from the necessity test in several ways. From an analysis of the case law, it appears that the ECtHR most often decides admission cases using some form of the fair balance test. With only a few exceptions, the Court has consistently established that the relationship between the family members constituted family life for the purpose of Article 8 ECHR and then proceeded directly to balancing the different interests involved, without establishing the existence of an interference.21 In 2008, after the majority of the Court had found an interference in the case of Omoregie, Judge Jebens issued a concurring opinion in which he argued that, in cases where the person concerned had not been granted lawful residence, the Court should always frame the case in terms of failure to comply with a positive obligation and refrain from applying the necessity test.22 This approach was subsequently followed by the Court in the case of Narenji Haghighi.23 Since then, however, it seems that the Court increasingly mingles the two tests. Recent case law shows several examples where the ECtHR applied the fair balance test, but also checked whether the impugned measure was ‘prescribed by law’ and served one of the ‘legitimate aims’ of Article 8, paragraph 2.24 In summary, the ECtHR is still searching for the right way to qualify and examine the claims of aliens seeking admission for the purpose of family reunification. This seems to result from unwillingness on the part of the Court to recognise a right to family reunification as part of the right to family life, while at the same time not wanting to exclude entirely the possibility that a claim for family reunification could come within the scope of the Convention. This has led to a somewhat muddled approach, at the core of which the fair balance test can nonetheless be distinguished as the instrument most often used for examining admission cases (even where the obligation at stake is not expressly identified as positive). Section II.C examines the arguments used by the Court to determine whether a fair balance has been struck between the interests of the individual and those of the community in family reunification cases. In this way it attempts to establish a better idea of how to conduct the fair balance test in situations where the admission of family members is made subject to integration requirements. Firstly, however, the margin of appreciation is considered. When applying the fair balance test the ECtHR usually states that Contracting States have a ‘certain margin of appreciation’.25 This margin serves to determine the intensity of the judicial review conducted by the Court: where a margin is granted, the review is less intense and it is left to the Contracting State to appraise the various interests at stake. In this respect the margin of appreciation doctrine must be distinguished from other instruments of interpretation used by the ECtHR, such as the fair balance test or the necessity test. Unlike the latter instruments, the margin of appreciation doctrine does not set the criteria for determining whether a particular state measure is compatible with Article 8 ECHR (for example, that there must be a fair balance or that the measure must be necessary in a democratic society). Instead it determines the scope of the review to be performed; in other words, whether the Court will conduct an intensive examination or whether it will defer to the judgment of the respondent state.26 Consequently, the margin of appreciation doctrine is not, strictly speaking, relevant to the primary purpose of this section, which is to identify the standards governing the application of Article 8 ECHR in relation to integration requirements for family reunification. However, it is good to be aware that the criteria formulated by the ECtHR are not all-encompassing, but that there is scope for choices to be made by the national authorities of Contracting States. Hence the standards articulated by the ECtHR must be perceived as minimum standards.27 The scope of the margin of appreciation is determined by a number of different circumstances and can therefore vary from case to case. Relevant circumstances include the nature of the right at issue, the nature of the aim pursued by the contested measure or of the general interest involved and the extent to which there is common ground between the laws of the Contracting States concerning the topic before the Court.28 This was confirmed by the ECtHR Grand Chamber in two judgments, both of which involved positive obligations under Article 8 ECHR.29 As stated above, the fair balance test examines whether the impediment to applicants’ family life, caused by refusal to allow family reunification, is proportionate to the state interest served by this refusal. The lawfulness of the state’s decision will therefore depend on the reasons why family reunification was refused, as well as on the applicants’ personal circumstances and the effect of the refusal on their opportunities to enjoy family life. This will also apply if the decision is based on an applicant’s failure to pass an integration test. This section analyses ECtHR case law in admission cases in an attempt to get more insight into how the Court assesses both individual and state interests and weighs them against each other. Firstly, considerations relating to the state’s interests are considered. Next, the interests of applicants will be considered, with a distinction being made between arguments relating to the situation of the family members and arguments relating to the nature and effect of the disputed immigration measures. The fair balance test requires the interests of the individual applicants to be weighed against the general interests of the state. With regard to admission cases, this would imply that the ECtHR not only examines the situation of family members, but also the conditions by which family reunification is refused or restricted and the reasons underlying these conditions. Indeed, the Court has often stated that one of the factors to determine whether Article 8 ECHR requires that a family member be admitted is ‘whether there are factors of immigration control (eg, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion’.33 So far, however, the Court has been rather reticent in formulating more specific criteria with regard to immigration rules applied by Contracting States. As stated above (section II.B.i), the ‘pure’ fair balance test does not involve an examination of whether the state’s refusal to allow family reunification serves one of the legitimate aims mentioned in Article 8(2) ECHR. Especially in its early case law, the Court often did not explicitly consider the grounds on which admission was refused. In the case of Gül, for instance, the Court concluded that there was no obstacle preventing the family from exercising its family life in the country of origin and then immediately went on to find that there had been no violation of Article 8 ECHR, without mentioning which state interest would be served if the son were not admitted.34 In other cases, the Court found – and accepted – that refusal of family reunification pursued the rather broadly formulated state interest of ‘controlling immigration’, which is not as such mentioned in the Convention. It has done so even in cases where the respondent state indicated that the immigration measures were taken with regard to one or more of the ‘legitimate aims’ of Article 8(2) ECHR.35 Of late, however, the Court has begun to refer to these aims more explicitly. In several, more or less recent, cases, the ECtHR specified that the refusal of admission was in the interest of the ‘protection of economic well-being’ and/or the ‘prevention of disorder and crime’.36 On some occasions, the reference to these aims seems to have been inspired by the fact that specific conditions for admission had not been met. For example, in Konstatinov, the applicant had been convicted of various criminal offences, whereas her partner failed to meet the income requirement set by the respondent state (the Netherlands). The Court subsequently held that the refusal of admission had been in the interest of ‘controlling immigration and public expenditure and the prevention of disorder or crime’.37 However, it has also invoked these aims in cases where the refusal apparently resulted from an overall restrictive immigration policy (the applicants simply did not belong to a category of aliens eligible for admission) or from the failure to meet a formal requirement (eg the possession of a valid visa or passport).38 Specifically, in Nacic and others, the Court clarified that it considered the economic well-being of the respondent state to be served by the effective implementation of immigration control.39 As regards the proportionality of immigration measures in relation to the public interest at stake, ECtHR case law provides little guidance: in the majority of cases these issues are simply not addressed. Several judgments deserve to be mentioned, however. In the cases of Haydarie and Konstatinov, the applicants were refused residence because, inter alia, the family members seeking their admission did not meet the income requirements imposed by the respondent state. In both cases, the ECtHR stated that in principle the Court does not consider unreasonable a requirement that an alien who seeks family reunion must demonstrate that he/she has sufficient independent and lasting income, not being welfare benefits, to provide for the basic costs of subsistence of his or her family members with whom reunion is sought.40 It may be derived that, at least in abstracto, states’ economic interest in not having to support family members from abroad is considered sufficiently weighty to justify the introduction of the income requirements concerned. With regard to the public interest of immigration control, the Court stated in Nunez and Antwi that the possibility for states to expel family members constitutes an ‘important means of general deterrence against gross or repeated violations of the Immigration Act’. Having established that such violations existed in the cases concerned, the ECtHR went on to find that ‘the public interest in favour or ordering the applicant’s expulsion weighed heavily in the balance when assessing the issue of proportionality’. Additionally, in Nunez, the Court rejected the argument made by the applicant, to the effect that ‘the public interest in an expulsion would be preponderant only in instances where the person concerned had been convicted of a criminal offence’. Yet, in Antwi, it indicated that longer re-entry bans can be imposed when the breaches of the state’s immigration laws have been more serious in nature.41 On the other hand, in its judgment in Rodrigues Da Silva & Hoogkamer, the ECtHR found that the decision by the Netherlands to refuse admission had been disproportionate. In the Court’s view, the state had indulged in ‘excessive formalism’ by attaching ‘paramount importance’ to the fact that Mrs Rodrigues had been residing in the Netherlands illegally at the time of her daughter’s birth. The Court had regard, therefore, for the fact that the Dutch government itself had indicated that Mrs Rodrigues could have obtained lawful residence on the basis of her relationship with the child’s father, if only she had applied for it.42 Thus, the mere fact that a person fails to apply for a residence permit, even though the requirements for obtaining such a permit are met, is apparently not regarded by the Court as a very important contravention of the state’s immigration rules. Given that Mrs Rodrigues was moreover unable to continue her family life with her young daughter in her country of origin, the Court decided that the interests of the state did not outweigh those of the applicants. A similar type of reasoning was followed in the case of Nunez, where the ECtHR held it against the respondent state that it had not acted fast enough in reacting to Mrs Nunez’ unlawful stay. According to the Court, the expulsion of Mrs Nunez did not ‘to any appreciable degree [fulfil] the interests of swiftness and efficiency of immigration control that was the intended purpose of such administrative measures’. Consequently, the state interest served by the expulsion could not tip the balance.43 In Biraga, however, the Court again attached rather a lot of weight to the respondent state’s interest in compliance with a mainly formal immigration measure. In this case, a decision had not yet been taken on the applicant’s request for admission, hence it had not been established that she failed to meet any of the applicable conditions. She had, however, already entered the respondent state (Sweden) as an asylum seeker, whereas Swedish immigration law required her to apply for a residence permit for family reunion from abroad. The ECtHR found that the applicant’s expulsion was not contrary to Article 8 ECHR.44 A comparison with Rodrigues Da Silva suggests that the situation in the latter case was really quite exceptional, insofar as the mother’s eligibility for a residence permit was not disputed. Moreover, in admission cases, the outcome of the fair balance test is not only determined by the interests of the state but also by those of the applicants. The ECtHR’s considerations relating to these interests are discussed below. An assessment of admission cases handled by the ECtHR shows that many different circumstances play a role in determining the weight to be accorded to family members’ interest in establishing or continuing their family life in the respondent state. To start with, the Court itself distinguishes between ‘those [family members] seeking entry into a country to pursue their newly established family life and those who had an established family life before one of the spouses obtained settlement in another country’.45 In general, the interests of the family members will weigh more heavily if family life had already been created before one of them moved abroad. This may reflect a reasoning to the effect that, when admitting a person who already has a family in his or her country of origin, states can expect to be asked to admit that family as well, whereas this is not the case if the family did not exist at that time. However, as discussed below, the differentiation between family life created before or after migration should not be overstated: in both situations the Court has often found there to be reasons why Article 8 ECHR does not require family reunification in the respondent state. it may be unreasonable to force the parent to choose between giving up the position which they have acquired in the country of settlement or to renounce the mutual enjoyment by parent and child of each other’s company which constitutes a fundamental element of family life.46 Yet this is not to say that a right to family reunification always exists in such situations. Case law shows that the Court takes various factors into account when determining the weight to be given to individual interests, including the age of the children and their situation in the country of origin, the extent to which the children are dependent on their parents, whether the separation was the result of a conscious and voluntary decision by the parents and whether there are any obstacles preventing the enjoyment of family life elsewhere.47 To give some examples, in the cases of Sen and Tuquabo-Tekle the ECtHR held that the Netherlands was under a positive obligation to admit the children because the rest of the family could not be expected to join them in the country of origin. In both cases the parents had not only settled in the Netherlands, but also had children who had been born and raised there and who had no or only minimal ties to the country of origin.48 The Court also held that family reunification was ‘particularly exigent’ in view of the young age or otherwise vulnerable position of the children.49 By contrast, the ECtHR found no positive obligation for the state in Chandra and I.M. because it considered that family life could also be exercised in the country of origin, and in Magoke because the applicant was not prevented from maintaining the same degree of family life with his daughter as they had enjoyed before his migration.50 A somewhat different scenario occurred in the case of Nacic and others: family life had been created before migration and all the family members (the parents and their two sons) had moved to Sweden together to apply for asylum. Eventually one son was granted a residence permit on medical grounds, while the other family members’ applications were rejected. The ECtHR treated the case as one involving an interference instead of a potential positive obligation (para II.B.ii), but nevertheless found that neither the son’s health nor the applicants’ ties to Sweden constituted insurmountable obstacles for the family to return the country of origin. As a result, the Court concluded that Article 8 ECHR had not been violated.51 The second category of cases under Article 8 ECHR includes those in which family life was created after migration. These cases normally concern families that were formed in the respondent state while one of the parents or partners was residing there illegally or on a temporary residence permit (for example, while awaiting a decision on an asylum claim). In such cases, the circumstances considered by the ECtHR in relation to the individual interests of the applicants include ‘the extent to which family life is or will be effectively ruptured, the extent of the ties in the Contracting State and whether there are insurmountable objective obstacles for exercising the family life in the country of origin’. Another important element 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 the family life within the host state would from the outset be precarious.52 The Court has indicated that, where the latter condition is met, a violation of Article 8 ECHR will occur only ‘in the most exceptional circumstances’. To date such exceptional circumstances have been found to exist only twice. In Rodrigues Da Silva, the respondent state (the Netherlands) sought to expel the mother of a very young girl who depended on her care. As the parents had separated and custody had been granted to the father, there was no possibility for the mother to take her daughter with her to her country of origin (Brazil).53 Very similar facts emerged in Nunez, in which case the ECtHR also attached relevance to the disruption and stress already experienced by the children on account of their parents’ separation and the pending expulsion of their mother.54 More often, however, the Court has found there to be no positive obligation because the family relationship started at a time when one of the persons concerned had a weak immigration status and/or because family life could also be exercised in the country of origin.55 The extent to which the applicants’ interests are affected also depends on the nature of the immigration measures taken by the respondent state. As mentioned before, these measures are not often subject to express consideration by the ECtHR. The Court has, however, on several occasions considered the duration of re-entry bans imposed by the Contracting State, whereby it has found temporary re-entry bans of up to five years to be acceptable.59 By contrast, in Nunez, the interests of the children put so much weight on the scale that a re-entry ban of two years was already considered disproportionate.60 an alien who seeks family reunion must demonstrate that he/she has sufficient independent and lasting income, not being welfare benefits, to provide for the basic costs of subsistence of his or her family members with whom reunion is sought.61 It follows that applicants may normally be expected to make the efforts necessary to comply with this requirement. In Konstatinov, the Court considered that it had not been demonstrated, over a period of eight years, that the applicant’s husband in the Netherlands had ever complied or at least made any efforts to comply with the minimum income requirement.62 A similar situation was found in Haydarie: although it was established that the applicant had been taking language and sewing courses, which may have increased her employability, there was no indication that she had actively sought gainful employment. Instead she had preferred to stay at home to care for her disabled sister, which, according to the respondent government and the Court, she could also have left to a professional agency.63 In both the above cases, the Court concluded that the state authorities had not failed to strike a fair balance between the applicant’s interests on the one hand and its own interests in controlling immigration and public expenditure on the other. In Haydarie the Court did, however, take into account the respondent government’s statement that it would not have maintained the income requirement if Mrs Haydarie could demonstrate to have made, during a period of three years, serious but unsuccessful efforts to find gainful employment, ‘also bearing in mind the possible existence of an objective obstacle for the applicant’s return to Afghanistan’. This suggests that, at least where the option of exercising family life in the country of origin does not exist, states may not indefinitely continue to refuse admission to applicants who are willing but unable to meet the income requirements imposed. Additional considerations relating to the proportionality of immigration requirements can be found in the ECtHR’s decision in M.F.S. v Bulgaria.64 This case concerned a Ukrainian national, Mrs M.F.S., who wished to reside in Bulgaria with her Bulgarian husband. During the first two years of her marriage she had to pay between €100 and €250 in administrative charges every six months in order to obtain and renew her residence permit. The applicant claimed that the annual sum to be paid by her equalled four times the Bulgarian minimum wage, while at the same time she was not permitted to work in Bulgaria. Although the Court held that a residence permit allowing a family member to reside in the respondent state was normally an adequate measure to meet the requirements of Article 8 ECHR, it nevertheless went on to examine ‘whether the legal and factual conditions regarding this residence permit were not such as to disturb the fair balance between the interests of the applicants and those of the community’.65 In doing so, it conceded that the amount to be paid by Mrs M.F.S. was substantial for Bulgarian standards, but found that she had not proven that the financial burden was too heavy, given her personal circumstances. The Court also recalled that the applicant’s situation was temporary, as she would be able to apply for permanent residence status after two years. In summary, the Court concluded that the applicant’s interests did not outweigh the financial considerations underlying the administrative charges imposed by the respondent state. ECtHR case law regarding admission cases is discussed above, with the aim of providing greater insight into how the Court applies the fair balance test. From this discussion, a number of criteria emerged that are used by the Court to assess whether a fair balance has been struck between the interests of the applicants and those of the Contracting States. It should be noted, however, that the Court’s application of these criteria is highly casuistic and does not follow a fixed argumentative pattern, which means that their significance may vary in each individual case. It cannot, for example, be deduced from case law how the fact that family reunification is not possible in the country of origin will be weighed against the fact that family life was started at a time when the residence status of one of the partners was insecure, or that the applicant has made too few efforts to comply with income requirements.66 It is, furthermore, unclear why the Court addresses the proportionality of immigration measures in some detail in some cases, but not in others. Lastly, the Court does not always seem to act consistently in the way it evaluates the facts of a case. In this respect, it is not obvious why the Court found that, in the Sen case, the decision by the parents to leave their daughter behind was not meant to be final, whereas the same decision was seen as definite and held against the parents in Gül and Ahmut.67 It has been established that, according to the ECtHR’s interpretation, Article 8 ECHR does not grant individuals a general right to family reunification in the territory of a Contracting State. It follows that states are, in principle, allowed to make family reunification dependent on the fulfilment of certain conditions and to refuse admission in cases where those conditions are not met. Hence, measures aiming to control immigration of family members are not a priori incompatible with Article 8 ECHR. Nonetheless, a Contracting State may be under an obligation to allow family reunification in individual cases, where the interests of the applicants outweigh the general interests of the state. The previous section identifies criteria that are relevant for assessing these interests. It is now time to apply these criteria to situations where family reunification is made subject to integration requirements. Thus far, the ECtHR has not been asked to pass judgment in any cases involving integration requirements. The Court has consequently not pronounced on the legitimacy of the aim of promoting integration. Nevertheless, it appears unlikely that this objective would be deemed incompatible with Article 8 ECHR. Possibly, the aims pursued through integration requirements can be subsumed under the interests already regarded as legitimate by the ECtHR, which are usually formulated in rather broad terms. The Court could accept, for example, that integration requirements are meant to prevent disorder (for example, by promoting peaceful relations between different groups of the population) or to protect the economic well-being of the country (by encouraging economic self-reliance and ensuring that immigrants have the necessary labour market skills). Alternatively, given the ECtHR’s reticent attitude in this regard, it is not unlikely that the Court will regard integration as a legitimate public interest in itself, leaving it to the Contracting States to determine more specifically what this objective entails. Lastly, as demonstrated earlier, the Court has accepted that admission requirements are necessary to ‘control immigration’, without going into the underlying purpose of such immigration control. There are, nevertheless, some limitations to the objectives that Contracting States may pursue through integration measures. These objectives should not conflict with the fundamental rights guaranteed by the ECHR. Consequently, the purpose of integration measures may not be to abolish or restrict religious or ethnic pluralism.68 It was also submitted in chapter 3 (section III.D.i) that states may not seek to make immigrants agree with particular moral values or beliefs. Arguably, this criterion translates into a legal norm through Article 9 ECHR, which protects the freedom of thought. Also relevant in this regard is the ECtHR’s judgment in Kjeldsen, Busk Madsen and Pedersen, in which the Court stated that the Contracting States were not permitted to pursue an aim of indoctrination. While this case concerned the right to freedom of education as protected in Article 2 of the First Protocol to the ECHR, the Court expressly stated that it considered its interpretation to be consistent with ‘Articles 8, 9 and 10 of the Convention and with the general spirit of the Convention itself, an instrument designed to maintain and promote the ideals and values of a democratic society’.69 It moreover held that, to be in conformity with the ECHR, information or knowledge included in the curricula of state schools had to be conveyed ‘in an objective, critical and pluralistic manner’.70 It is submitted that this criterion may well also be applied in the context of integration requirements. Another judgment with potential relevance for the issue at hand was issued in the case of Tănase. Here, the ECtHR qualified as a legitimate aim the need to ensure loyalty to the state. The Court explained that such loyalty ‘in principle encompasses respect for the country’s Constitution, laws, institutions, independence and territorial integrity’. However, it also stated that ‘the notion of respect in this context must be limited to requiring that any desire to bring about changes to any of these aspects must be pursued in accordance with the laws of the state’.71 The judgment concerned a complaint under Article 3 First Protocol ECHR (the right to free elections), regarding a requirement in the legislation of Moldova that precluded citizens with dual nationality from becoming a member of parliament. This is, of course, a different context from the one examined in this book. Nevertheless, it is reasonable to believe that, where states enact integration requirements with the aim of ensuring the loyalty of immigrants to the host state (for instance, through a declaration), they should at least remain within the limits described above. Another factor to be considered in relation to the interests of the state is the effectiveness of integration requirements in improving immigrant integration in the host society. It is observed that, with the exception of the Nunez case (section II.C.i), the ECtHR has so far refrained from testing the suitability of the immigration measures at stake to realise the public interests pursued, and it may well be that an assessment of the effectiveness of those measures would go beyond the scope of the Court’s review. If, however, it is established that integration requirements do not have much effect, it follows that the interests of the state would not be strongly affected if those requirements were to be disregarded. Conversely, if the requirements are highly effective, the state interests will clearly benefit from their application. Consequently, where evidence of the effectiveness of integration requirements is available, it will be relevant to the question of whether a ‘fair balance’ has been struck between the interests of the state and those of the applicants in the individual case. Turning now to the interests of the applicants, it can be inferred from the above analysis that these interests must be given increased weight when reunification is clearly in the best interests of the children involved (because, for instance, the children are still young), when there are obstacles to the exercising of family life in the country of origin and when the separation of family members could not be attributed to their own choice or to the fact that they started their relationship when the immigration status of one of them was precarious. Where one or more of these circumstances play a role, there will normally be less scope for a Contracting State to refuse to admit a family member on the grounds that he or she has not met an integration requirement. In addition to the above circumstances, the nature and effect of integration requirements can play a role. From the ECtHR’s judgments in Haydarie, Konstatinov and M.F.S. v Bulgaria, it can be derived that the interests of the applicants will weigh more heavily when family reunification is delayed for a longer period of time or even made permanently impossible. This will depend, to an important extent, on the burden imposed by the integration requirements and the efforts required from the applicants. It should be noted that, in each of the above judgments, the ECtHR not only considered whether the disputed immigration conditions were acceptable in abstracto, but also assessed their effect in the case at hand, given the particular circumstances of the applicants. While the Court has not yet ruled on this, it is suggested that several elements are significant in assessing the extent to which the possibility of family reunification is affected by integration requirements, such as the contents of the integration exam or programme, the level of knowledge or skills required, whether course materials or study facilities are provided by the Contracting State and the costs for the applicants. The effect of integration requirements on the applicants will also be influenced by individual circumstances, such as the education and learning capacity of the person concerned, the existence of any physical or psychological disabilities and the actual accessibility of course materials and the programme or exam (taking into account the financial situation of the applicants, as well as possible obstacles existing in the country of origin). Lastly it will make a difference whether the immigration regulations of the Contracting State contain an exemption clause for applicants who, despite making the necessary efforts, have not been able to comply with the integration requirements. As stated in section II.C.ii, the existence of such an exemption clause seems to have played a role in the Court’s decision in Haydarie. In the judgments in M.F.S. and Haydarie, the fact that the applicants faced substantive costs or efforts was not enough to render the immigration measures disproportionate. Translated into integration measures, the latter judgment may mean that Article 8 ECHR does not, in principle, prevent Contracting States from requiring the applicant to make an effort to meet an integration requirement throughout a fixed period of time (in casu three years). Yet, the ECtHR’s reasoning in Haydarie and Rodrigues Da Silva & Hoogkamer supports the statement that the level of the demands that may be placed on applicants is also determined by the situation of the family members (although, in the former case, even the ‘possible existence of an objective obstacle for the applicant’s return to Afghanistan’ was not enough to outweigh the substantial effort imposed on Mrs Haydarie). Thus, even where the separation of family members is temporary, the admissibility of the integration requirement will depend on the circumstances of the case.72 Unlike the ECtHR, Dutch courts have been asked on several occasions to review the compatibility of integration requirements with Article 8 of the ECHR. Although case law on this topic is not substantial, some contours of the courts’ approach are emerging, as outlined below. The purpose of this section is twofold. Its primary aim is to establish how Dutch courts interpret Article 8 ECHR in relation to integration requirements and which criteria have been developed in this respect. Secondly, the question of whether these criteria are compatible with Article 8 ECHR, as interpreted by the European Court of Human Rights, is considered. Firstly it may be noted that, in the cases examined, the courts have consistently asked whether the refusal to admit a person on the grounds that the integration requirement had not been met amounted to a violation of a positive obligation under Article 8 ECHR. This approach is motivated by the argument that the refusal does not have the effect of withdrawing a residence permit that allowed the applicant to exercise his or her family life in the Netherlands and, therefore, does not constitute interference with the right to family life.73 As seen above, the ECtHR itself does not consistently distinguish between positive and negative obligations. However, the ‘positive obligation’ doctrine followed by the Dutch courts is not as such contrary to Article 8 ECHR. More important is the test that is applied. It was established in section II.B that Article 8 ECHR does not include a general right to family reunification in the state where one of the family members is living. Whether such a right exists in an individual case depends on the interests of the family members, as well as the general interests of the state. Like the ECtHR (in most cases), the Dutch courts determine the existence of a right to family reunification in a particular case by means of the fair balance test.74 The following subsections discuss how this test has thus far been conducted in cases concerning integration requirements, with attention being paid first to the general interests served by integration requirements. After that, case law on the proportionality of integration requirements is discussed and some consideration given to the intensity of the review conducted by the Dutch courts. Lastly, the extent to which Dutch case law provides more specific criteria for integration requirements than ECtHR case law is considered, as is the question of whether there are any points on which the approach of the Dutch courts may not meet the requirements set by Article 8 ECHR. Under the fair balance test, the interests of family members have to be weighed against the general interests of the state. As far as the latter are concerned, it was argued above that integration requirements may pursue a variety of more or less specifically formulated state interests. So far, the ECtHR has generally accepted that public interests such as ‘controlling immigration’ or ‘preserving the economic well-being of the state’ can, in principle, justify immigration measures, including expulsion of family members or the application of income requirements. In several more recent cases, however, the ECtHR did have regard for arguments to the effect that the state interests were not deeply affected or served by the immigration measure at stake, with the result that they weighed less heavily in the balance (section II.C.i). To date, the Dutch courts’ approach in cases concerning integration requirements has been yet more reticent. In the majority of cases brought before them, the courts did not address the interests of the state at all, or merely claimed that the individual interests had to be weighed against the ‘general interest’ or the ‘interests of the defendant’, without specifying what these entailed. In only two cases was the general interest addressed in more detail. In these judgments, the courts, referring to the legislative history of the AIA, found that in this specific case the general interest consists, inter alia, of the need to stop the repeating process of lagging integration paired with continuing immigration so as to diminish the marginalisation of particular groups of the population – with all its consequences for the economic well-being of the Netherlands, public order and public safety and the rights and freedoms of others.75 Despite the above judgments it can be concluded that, overall, the nature of the general interests or the aims pursued by the state are not taken into account in the examination conducted by the Dutch courts in cases involving integration requirements. Consequently, both the definition of the general interests involved and the definition of the weight to be attached thereto are left to the discretion of the legislative and administrative authorities. This also implies that it is not assessed whether or to what extent the integration exam abroad is a suitable or necessary instrument to achieve the aims pursued. From an examination of the available case law on integration requirements, the outcome of the fair balance test appears mainly to be determined by two criteria. One of these criteria, which is also taken into account by the ECtHR, is whether family life can be exercised in the country of origin. To a somewhat lesser extent, the courts also have regard to whether the obligation to pass the integration exam abroad makes the exercise of family life in the Netherlands permanently impossible.76 With regard to the second question, the courts assess whether there are reasons to assume that the person seeking admission is lastingly unable to pass the integration exam abroad. It was suggested above (section II.D.ii) that the latter element could be of relevance in assessing the proportionality of integration requirements. The Dutch courts use the above criteria to determine whether the obligation to pass an integration exam – and the denial of admission in the event of non-compliance – are proportionate to the general interests. However, case law shows that the scale does not easily tilt in favour of the applicants. To date there have only been two cases in which a court found the requirement of integration abroad to be disproportionate, both of which were overruled on appeal.77 To illustrate the strictness with which the above criteria are applied some of the cases that have been decided thus far are described below. One case that came before the District Court of The Hague (sitting in Middelburg) concerned an applicant of Eritrean nationality who sought admission for the purpose of family reunification with his Dutch wife.78 The applicant stated that he was residing illegally in Sudan and that he was at risk of being sent back to Eritrea, from where he had previously fled. The applicant consequently maintained that he could not be expected to pass the integration exam abroad within a reasonable time. He also stated that no study materials for the exam were available in his mother tongue and that he would, therefore, have had to learn English before being able to learn Dutch. Despite these circumstances, the court found that the decision by the Foreign Affairs Minister to refuse the applicant’s admission did not fail to strike a fair balance between the interests of the applicant and the general interest of the state. Thereby the Court considered that the applicant’s arguments relating to his situation in Sudan had to be examined in the course of an asylum procedure and could not be taken into account under Article 8 ECHR. The difficulties faced by the applicant with regard to the integration exam appear not to have been considered sufficient to justify concluding that he had to be admitted without having to meet the integration requirement. A second case concerned a Moroccan applicant wishing to live in the Netherlands with her partner. She claimed that she would never be able to pass the integration exam abroad because she was illiterate. A residence permit had already been granted to the applicant’s two minor children, meaning that she was the only member of the family who was not allowed to live in the Netherlands. The Administrative Jurisdiction Division of the Council of State (AJD) found that the above case presented no special circumstances that made the Netherlands obliged to admit the applicant. In reaching this conclusion, it considered that the existence of an objective obstacle to the exercise of family life in the country of origin had not been demonstrated and that the applicant had not shown that she was lastingly unable to pass the integration exam, which meant that a refusal to exempt her from this exam would not permanently deprive her of the possibility to exercise her family life in the Netherlands. With regard to the latter consideration, the AJD accepted that the exam had been designed by the Dutch legislator in such a way that illiterate persons should also be able to pass (chapter 2, section VI.C). It did not, however, address the consequences of the applicant’s illiteracy in terms of the efforts and costs that she would be required to make and the time that it would take her to reach the level required to pass the exam. The third case concerned two Somali children seeking to be reunited with their mother and her husband in the Netherlands.79 The mother had previously entered the Netherlands as an asylum seeker and had since obtained Dutch nationality. By the time a decision was taken on their application, both children were no longer minors. According to reports issued by two non-governmental organisations (Defence for Children International and the Red Cross), the applicants were living in dire circumstances in their country of origin. They did not have a home of their own and were living under the overhang of someone else’s house. They were living off gifts from other people and did not have a computer or money to buy materials to prepare for the exam. It was therefore submitted that the applicants could not reasonably be expected to pass the integration exam abroad and had to be granted an exemption. The above case was brought before the District Court of The Hague. With regard to the difficulties faced by the applicants in respect of preparing for the integration exam, the court stated that: [It is] primarily the responsibility of the applicants and their mother to obtain the necessary study materials and the required knowledge of the Dutch language and society in the country of origin. Thereby the applicants and their mother can let themselves be assisted by the non-governmental organizations that have also helped them earlier on in the procedure – by paying the administrative charges and enabling the application for family reunification to be made [. . .]. More specifically, the minister was justified in considering that the fact that the applicants do not speak any of the 13 languages in which study materials are available and that they do not have a computer does not present an obstacle for imposing the obligation to pass the integration exam. In view of the legislative history the applicants may be expected to let themselves be assisted by their mother or by third parties, who can arrange the translation of the study materials into a language which they do understand. Moreover, it was established during the court hearing that a computer is not a necessary asset for the preparation for and the participation in the exam [my translation, KV].80 In view of the above, the court found that the exercise of family life by the applicants was not made permanently impossible by the integration requirement and that the Minister had provided sufficient reasons why the refusal to admit the applicants was not contrary to Article 8 ECHR.81 The court’s decision was upheld in appeal in a non-reasoned judgment by the AJD.82 The above examples illustrate that the obligation to pass the integration exam abroad is not easily found to constitute a violation of Article 8 ECHR. In particular, Dutch case law shows that substantial efforts may be required of applicants and that the existence of specific obstacles – such as illiteracy or the unavailability of study facilities – has not to date led to the conclusion that the obligation to pass the exam was disproportionate.83 As stated earlier, however, the proportionality of the integration exam abroad is also influenced by the situation of the family members and whether it is possible to exercise family life in the country of origin. In one case this situation led the court to conclude that the obligation to pass the integration exam abroad was disproportionate. The applicants in this case were an Afghan family (the parents and three children), who sought admission to join their son or brother who had been admitted to the Netherlands on asylum grounds when he was nine-years-old.84 The family had been recognised as refugees by the United Nations High Commissioner for Refugees and was living irregularly and under very difficult circumstances in Turkey. Some of the children were still minors and the family had been trying for 10 years to be reunited in the Netherlands, where other close relatives were also living. Lastly, it had been established that the mother suffered from depression and post-traumatic stress syndrome. On the basis of these conditions, the District Court found that the interests of the applicants outweighed the integration interest underlying the AIA and ruled that the Netherlands had a positive obligation under Article 8 ECHR to admit the family.85 This judgment was, however, overruled by the AJD on procedural grounds.86 Moreover, in at least two of the other cases described above there was also no possibility of reunification in the country of origin because at least one of the family members feared persecution there. Yet this was either disregarded or not found substantial enough to conclude that the applicants had to be admitted to the Netherlands. Just like in cases before the ECtHR, the outcome of proceedings before the Dutch courts also depends on the intensity of the review conducted. Whereas the ECtHR sometimes leaves a certain margin of appreciation to the Contracting States, the national courts can defer to the assessment made by the legislature or the administrative authorities. In this respect it appears that, at least at the district court level, the Dutch courts’ approach to cases involving integration requirements has not always been consistent. Case law provides examples of judgments in which the courts conducted a full review of the decision to refuse admission in the light of Article 8 ECHR, as well as judgments in which only a marginal review took place.87 Reviews conducted by the AJD have been somewhere in between full and marginal. In the judgments delivered to date in which it assessed the AIA in relation to Article 8 ECHR, the Division twice held that ‘the Minister was not wrong to find’ that there were no special facts or circumstances to justify a finding that Article 8 ECHR had been violated, and once that ‘it cannot be maintained that the Minister could not reasonably have let [the interests of the Dutch state] prevail over those of [the applicant]’ [my translation, KV].88 In one case, however, the AJD took into account that ‘the applicant had not substantiated her statement that the medical problems suffered by her spouse effectively constituted an objective obstacle to the exercise of family life outside the Netherlands’.89 In another case the Division added that it is [furthermore] taken into account that the applicant has not substantiated the existence of an objective obstacle to the exercise of family life in the country of origin [nor that] she is permanently unable to meet the integration requirement; [hence] the refusal to exempt her from this requirements does not imply that she will never be able to exercise family life in the Netherlands.90 It appears from the above considerations that the AJD supplemented the balancing of interests conducted by the Minister, indicating that it found that the above circumstances should have been taken into account even if they did not lead to a different conclusion. This approach is apparently confirmed in other case law (not concerning integration requirements), where the AJD has repeatedly stated that, when applying the fair balance test of Article 8 ECHR, the courts must establish whether the Minister has taken all the relevant facts and circumstances into account and whether, given the ‘fair balance’ criterion, he was ‘not wrong to find that the interference with the applicant’s right to respect for family life was justified’ [my translation, KV].91 The above overview shows that the test conducted by the Dutch courts to determine whether, in a particular case, a refusal to allow family reunification in the Netherlands is compatible with Article 8 ECHR is largely similar to the test conducted by the ECtHR. Unlike the ECtHR, however, the Dutch courts have been asked on several occasions to rule on cases where the refusal of admission was based on the fact that the applicant had not passed the integration exam abroad. In determining the proportionality of this particular measure, the Dutch courts took into account the personal capacity of the applicants (including illiteracy and learning capability) and circumstances relating to their preparation for the exam (the availability of study materials or a computer, for example), as well as the existence of obstacles to reunification outside the Netherlands and other conditions amounting to a situation of hardship. Nonetheless, findings of disproportionality rarely occurred. It is not yet clear whether there are any circumstances that would lead the courts to find that an applicant is not able to pass the exam and, if so, what these circumstances would be. It also cannot be said with certainty that such a finding would necessarily lead to the conclusion that the obligation to pass the exam was disproportionate in that particular case, or whether this would depend on other circumstances as well. It is not easy to say whether, overall, the standard of proportionality used by the Dutch courts is less strict than that used by the ECtHR (meaning that a violation is less likely to be found) or whether there are specific circumstances that the ECtHR clearly weighs differently from the national courts. In general, particularities pertaining to the situation of the family members seem to be given somewhat less attention in Dutch case law, whereas these often play a decisive role in ECtHR case law. This could result in judgments at a national level that are incompatible with Article 8 ECHR. In particular, it is questionable whether sufficient weight is always given to the position of settled migrants and the existence of asylum-related obstacles precluding the exercise of family life in the country of origin. It is also submitted that the standard imposed on applicants by the Dutch courts in terms of the efforts expected to be made to pass the exam is very high. It is not inconceivable that, in some of the situations considered in section II.E.ii above, the ECtHR would not find it reasonable to conclude that applicants could successfully take the exam before being admitted. Lastly, whereas the Dutch courts have so far been reticent to examine in any detail the public interest served by the Act on Integration Abroad, section II.C.i shows that the ECtHR has displayed a tendency lately to give more careful consideration to the interests of the state and the weight to be attached thereto. The right to family life is also protected in Articles 17 and 23 of the International Covenant on Civil and Political Rights (ICCPR). Article 17(1) ICCPR provides that ‘no one shall be subjected to arbitrary or unlawful interference with his [. . .] family’, while the second paragraph adds that ‘everyone has the right to the protection of the law against such interference or attacks’. Article 23(1) ICCPR moreover declares the family to be ‘the natural and fundamental group unit of society [which] is entitled to protection by society and the State’. At first sight, these provisions do not indicate whether the right to family life also includes a right to family reunification and, if so, whether this right may be made dependent on the fulfilment of integration requirements. To answer these questions, we need to examine how the above articles have been interpreted by the relevant bodies. Unlike the ECHR, the ICCPR is not monitored by an international court or other body competent to issue binding decisions on the interpretation and application of the Covenant. This means that it is ultimately left to the States Parties themselves to determine the contents of the rights and freedoms laid down therein. Nevertheless, some important guidelines for interpreting the Covenant are provided by the ICCPR monitoring body, the Human Rights Committee (HRC).92 The HRC’s jurisprudence on Articles 17 and 23 ICCPR is examined below, with particular regard to the Committee’s General Comments and Communications issued in individual cases.93 Additionally, case law of the Dutch courts is taken into account. While these sources do not, in general, provide more specific criteria with regard to integration requirements than those discussed above in relation to Article 8 ECHR, they do help to provide a more complete picture. With regard to the relationships protected by Articles 17 and 23 ICCPR, the HRC supports a broad interpretation that leaves scope for the different concepts of the family that may exist in the societies and legal systems of the States Parties to the Covenant. Thereby those groups of persons regarded as a family by the national legislation and practice of a state are in any case entitled to protection of their family life.94 The HRC has determined that the concept of the family includes the relationships between married couples and between parents and their children, the latter continuing when the parents are divorced.95 However, the Committee has also found that the mere existence of these relationships is not enough to qualify for protection unless there is some form of actual family life, such as life together, economic ties or a regular and intense relationship.96 An essential element of the right to family life is the right of members of a family to live together and to enjoy each other’s company. This has been recognised on several occasions by the HRC.97 The Committee has also found that this element of the right to family life may be affected by immigration measures adopted by the States Parties to the ICCPR. In its General Comment on the position of aliens, the HRC acknowledged that the Covenant does not contain a right for aliens to enter or reside in the territory of a State Party and that in principle states are allowed to decide who they will admit to their territory. Nevertheless, the HRC stated that ‘in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of [. . .] respect for family life arise’.98 The Committee has also issued a number of views in which it applied Articles 17 and 23(1) ICCPR in immigration matters, including cases concerning the admission of aliens to a State Party for the purpose of family reunification.99 Nevertheless, not every claim for family reunification automatically comes within the scope of Articles 17 and 23 ICCPR. To attract the protection of the above articles it must be established that the refusal to admit a family member either constitutes an interference with the family (under Art 17(1) ICCPR) or a failure on the part of the state to provide the necessary level of protection (under Art 23(1)). In this respect, the HRC has observed that there may indeed be cases in which a State Party’s refusal to allow one member of a family to remain in its territory would involve interference in that person’s family life. However, the mere fact that one member of a family is entitled to remain in the territory of a State Party does not necessarily mean that requiring other members of the family to leave involves such interference.100 Thus far, the HRC has not provided a general criterion for deciding whether the exclusion of a family member from the territory of a State Party does or does not come within the scope of Article 17(1) and/or Article 23(1) ICCPR. In both Winata and Li and Madafferi, however, the Committee found there to be interference caused by the fact that the planned deportation by the State Party of one of the family members would necessarily result in ‘substantial changes to long-settled family life’.101
Family Life and Family Reunification
I. INTRODUCTION
II. ARTICLE 8 OF THE EUROPEAN CONVENTION ON
HUMAN RIGHTS
A. Scope of Article 8 ECHR – Family Life
B. Family Life and the Admission of Aliens: the Approach of the European
i. Positive or Negative Obligation, Fair Balance or Necessity?
ii. Admission of Family Members: Still Searching for the Right Approach
iii. Margin of Appreciation
C. Balancing Family Life and Immigration Control: the Criteria Used by the Court
i. Interests of the State
ii. Interests of the Applicants
a. Considerations Relating to the Situation of the Family Members
b. Considerations Relating to the Effect of Immigration Measures
iii. Final Observations Regarding the Fair Balance Test in Admission Cases
D. Article 8 ECHR in Relation to Integration Requirements
i. Integration Requirements and the Interest of the State
ii. Integration Requirements and the Interests of the Applicants
E. Dutch Case Law with Regard to Article 8 ECHR and Integration Requirements
i. Positive Obligation and Fair Balance Test
ii. State Interests Served by Integration Requirements
iii. Proportionality of Integration Requirements
iv. Intensity of Review
v. Approach of the Dutch Courts in Relation to Article 8 ECHR
III. ARTICLES 17 AND 23 OF THE INTERNATIONAL COVENANT
ON CIVIL AND POLITICAL RIGHTS
A. Scope of Articles 17 and 23 ICCPR – Family Life and Family Reunification