Being an irregular migrant is not a crime. It is the result of the international movement of persons which is not in compliance with the immigration laws of the host state concerned. In my previous contribution to Leiden Law Blog entitled “Wir sind gekommen, um zu bleiben!”, I criticised the position of the European Court of Human Rights (ECtHR) where children can be identified with breaches of immigration law by their parents. In this blog, I will argue that the right to regularise irregular residence is a human right. It is part of the right to respect for private and family life as protected by Article 8 of the European Convention on Human Rights (ECHR). I agree with Caren’s definition of irregular migrants being ‘people who have settled without official authorization’. The ECtHR’s starting point in each and every immigration case is that states have the sovereign right to control the entry and residence of foreigners. States, however, are limited by human rights in exercising their right to control immigration. One of these human rights is the right to respect for private and family life.

Whether family life exists is a matter of fact and depends on the existence of close personal ties. Living together is an important aspect of the right to respect for family life. However, the right to respect for family life does not include a right to choose in which country you will live together. Therefore, the possibility of living together in another country is an important factor in ECtHR case law. Private life is a much broader concept than family life and encompasses relationships outside the core family. In immigration cases, the ECtHR often finds it unnecessary to make a sharp distinction between private and family life. In both cases, a fair balance must be found between the interests of the applicant to exercise private and family life in the host state and the interest of the state to control immigration. In its case law, the Court has been very reluctant to find that Article 8 ECHR obliges a state to regularise an irregular migrant. However, it has outlined a test to determine whether the host state is obliged to regularise an irregular migrant and has found a violation in a number of cases.

In Rodrigues da Silva & Hoogkamer v. Netherlands, the ECtHR held that an obligation to regularise an irregular migration status exists only in exceptional circumstances. In that judgment, the Court found that during the domestic proceedings in the Netherlands, the applicant at one time had complied with the requirements for a residence permit. The Netherlands had refused a residence permit solely based on the reason that an application for residence had to be lodged when the applicant was residing in the country of origin. Based on this, the Court concluded that the Netherlands had engaged in excessive formalism and ruled that exceptional circumstances were present. The Court held that to refuse a residence permit to the mother of a minor child who would be forced to leave her father and grandparents behind in the Netherlands if she was to relocate to the mother’s country of origin, would amount to a violation of Article 8 ECHR.

In Butt v. Norway, the ECtHR considered the regularisation of two young Pakistani adults who had lived in Norway since their early childhood. The Court accepted the reasoning of the domestic court that in principle children can be identified with the lack of adherence to immigration law by their parents, if there is a risk that the parents would exploit the position of their children to create lawful residence for themselves. I find this reasoning problematic as in my legal opinion children should not be treated differently based on their parents’ conduct. This is supported by paragraph 2 of Article 2 of the International Convention on the Rights of the Child. In any case, the Court did find a violation in Butt, based on the fact that the mother of the applicants had passed away.

In Jeunesse v. Netherlands, the Grand Chamber of the Court repeated that in regularisation cases, a violation will only be found in exceptional circumstances. The applicant in that case was a Surinamese national who had moved to the Netherlands in the 1990s. She had established family life with her Dutch husband and three minor Dutch children, even though she was aware of her unlawful stay. An important factor for the Court to find a violation was that the Netherlands had tolerated the applicant’s stay by not enforcing her deportation. The judgment is important jurisprudence as the Court held that the domestic authorities had not properly examined whether the refusal of a residence permit was in accordance with the principle of the best interests of the child.

Recently, the Court abandoned the exceptional circumstances requirement in Pormes v. Netherlands. The applicant in this case was a young Indonesian adult who had lived almost his entire life in the Netherlands. The Court found that the situation of the applicant was not that of a settled migrant, as he had never held a residence permit. However, the Court also held that the exceptional circumstances test – which it would normally apply in situations in which the applicant is aware of the unlawful residence while establishing family life – did not apply. Instead, the Court reformulated the test that should be applied in such cases. It held that a neutral starting point should be adopted, taking into account the specific circumstances of the applicant.

In my view, this move away from ‘exceptional circumstances’ is a significant and welcome shift in the ECtHR’s approach, which I have criticised before. Still, it did not help the applicant in this case. Because of criminal convictions for sex crimes, the Court concluded that the Netherlands had not exceeded its margin of appreciation. For that reason, the Court did not find a violation of Article 8 ECHR. I find it problematic that a person who has spent his entire childhood in the Netherlands can still be deported. But for future cases, this means that the strict requirement of exceptional circumstances no longer applies. The extent to which states are under an obligation to regularise irregular migrants will always depend on the particular circumstances of the case. Based on the existing case law, I would say that the following factors should be considered.

Firstly, the host state should consider to what extent the refusal would rupture family life and whether there are insurmountable obstacles to exercise family life elsewhere. Secondly, factors which weigh in favour of exclusion of the foreign national should be considered. Such factors are previous breaches of immigration law and considerations of public order. When evaluating breaches of immigration law, it should also be ascertained whether the family members were aware of the unsecure status of their residence in the period in which family ties were established or intensified. These were the factors that were listed by the Court in Pormes. But in my view, the elements emphasised in Jeunesse must also be considered. I would summarise these elements as factors that weigh against the exclusion from lawful residence. One of these factors is the extent to which the host state has taken action to terminate the lawful residence of the foreign national. The longer the host state has ‘tolerated’ the unlawful stay, the more this factor should weigh in favour of the applicant. Also, the difficulties that the foreign national and the family members would encounter in the country of origin should be considered. This goes beyond the obligation to determine whether there are insurmountable obstacles. Any potential hardship that would be caused by an involuntary move to another country should be considered. Thirdly, sufficient weight should be attached to the best interests of the child. In cases involving children, the practicality, feasibility, and proportionality of requiring minor children to follow their parents should be considered. Children who have spent their formative years in the host state should not be forced to resettle elsewhere. In my view, the Court should furthermore abandon the position that children can be identified with the conduct of their parents. Children are independent bearers of human rights and should be treated as such.

The regularisation of irregular migrants is a human right. It is based on the right to respect for private and family life. However, it is not an absolute right and not all irregular migrants qualify for regularisation based on Article 8 ECHR. The importance of recognising that regularising unlawful residence is a human right is that it is not left fully to the discretion of the host state. Instead, in the long run it is a human rights obligation to give irregular migrants the prospect of having a stable immigration status: a prerequisite for leading a normal life.