Irregular migrants who do not enjoy a status of lawful residence in a host state are in a particularly vulnerable position. They are often denied basic social and economic rights and are under the constant threat of being caught by the immigration authorities who seek the termination of their unlawful residence. Irregular migrants do enjoy the protection of human rights law, but that does not mean that they can derive a right of residence from this. In this blog I will investigate the issue of granting a right of residence to young adults with a long history of (unlawful) residence in the Netherlands as irregular migrants based on the right to respect for private life as protected by Article 8 of the European Convention of Human Rights (ECHR). I will do this by examining three court judgments on this issue. The first ruling that I will discuss is the Butt v. Norway ruling of the European Court of Human Rights (ECtHR). The ruling was used as a precedent in a number of cases in Dutch immigration law. I will analyse two cases concerning young adults who have lived in the Netherlands irregularly for a long time. After that I will argue that the approach of the European Court of Human Rights and the Dutch courts constitutes discrimination.

The Butt judgment concerns two Pakistani siblings who had lived in Norway since 1989, when they were both toddlers. Initially they had lawful residence, but this was withdrawn in 1999 because the siblings had left Norway with their mother for a few years. Their mother was eventually expelled from Norway in 2005 and died in Pakistan in 2007. The siblings remained in Norway as irregular migrants and lived with their aunt and uncle. After living in Norway as irregular migrants since their childhood, the siblings rely on the right to respect for private life to regularize their residence in Norway. Rather consistently, the ECtHR holds that a right to residence in a host state can only be derived from Article 8 ECHR in exceptional circumstances as the applicant was aware of the irregular nature of the residence in the host state while developing social ties. In Butt, the Court accepted the approach that was adopted by the Norwegian court which stated that “strong immigration policy considerations would in principle militate in favour of identifying children with the conduct of their parents, failing which there would be a great risk that parents exploited the situation of their children in order to secure a residence permit for themselves and for the children.” (para. 79) According to the Court however, because the mother of the siblings was no longer alive, there was no risk that she could exploit the position of her children to claim a right of residence for herself. Furthermore, the Court reasoned that the siblings had formed their strong ties with Norwegian society at a time when they were not aware of their irregular migration status. The Court concludes that Norway would violate Article 8 ECHR if the children would be deported.

Curiously, the consideration of the Borgarting High Court that children can be identified with the conduct of their parents plays an important role in Dutch immigration law. I will discuss two cases from the Dutch Council of State, the court of highest instance in Dutch immigration law in which this consideration is decisive.

The judgment of the Council of State of 23 September 2015 concerns a young adult who has reached the age of majority and has lived in the Netherlands for over thirteen years. She has strong social and cultural ties with the Netherlands and speaks Dutch fluently. On the other hand, she does not speak the language of her country of nationality – Azerbaijan – and does not have any social network there. The question is whether the refusal to grant her a residence permit would be in violation of Article 8 ECHR. The Council of State holds that the fact that the applicant has reached the age of majority does not mean that her mother could not exploit her position to claim a right of residence for herself. The Council of State does not further motivate this. The fact that the applicant has lived for a significant part of her life in the Netherlands, has extensive social and cultural ties with this country and has hardly any ties with her country of nationality is not considered as sufficiently exceptional to grant a residence permit.

A more recent case is the judgment of the Council of State of 11 January 2018. This case concerns a brother (living since the age of two in the Netherlands) and a sister (born in the Netherlands) whose country of nationality is Ecuador. Despite a short period in which their mother had a relationship with a Spanish partner, the siblings have lived in the Netherlands as irregular migrants all their life. The siblings speak fluent Dutch and have gone to school in the Netherlands. Like in the case discussed above, the Council of State holds that the fact that the applicants have reached the age of majority does not mean that their mother cannot exploit their position to obtain a right of residence for herself. Furthermore, the Council of State rules that there are no exceptional circumstances that warrant a residence permit based on Article 8 ECHR. The fact that the applicants have lived all their lives in the Netherlands, have developed strong social and cultural ties here and have hardly any ties in the country of nationality is not considered sufficiently exceptional.

I believe that the approach followed in the Netherlands in cases like these is an incorrect application of the judgment of the Court in Butt. Furthermore, I believe that the reasoning is not in accordance with the prohibition of discrimination as enshrined in Article 14 ECHR.

Firstly, in Butt, the Court agreed with the Norwegian court that in principle the conduct of the parent can be attributed to the child, but that in the case at hand there was no risk that the mother could exploit the position of the child as she had already died. Indeed, in both Dutch cases discussed above the mother is still present in the Netherlands as an irregular migrant. However, in my view the argument that granting a right of residence to the young adults would mean that a right of residence must also be granted to the mothers is far-fetched. In fact, Dutch immigration law does not allow for a residence permit for the parents of a young adult who is settled in the Netherlands. A foreign national parent of a young adult can only claim a right to reside with his adult child in cases in which a denial would result in a violation of Article 8 ECHR. Considering that the state has a wide margin of appreciation in this matter and that the previous period of irregular residence weighs heavily against the interests of the parent, the chance that a right of residence would be granted to the parent is close to zero. In these circumstances, the argument that there is a risk that the parent would exploit the position of the child cannot be upheld.

Secondly, I believe adult children should not be treated differently based on the conduct of their parents, as this – in my view – constitutes discrimination which is prohibited by Article 14 ECHR. The Court has established in Hode and Abdi v. United Kingdom and Bah v. United Kingdom that residence status should be regarded as ‘any other status’ for the purpose of Article 14 ECHR. The first question that should be addressed is whether there is a difference in treatment of persons in analogous, or relevantly similar, situations. There is discrimination where the differential treatment does not serve a legitimate aim and is not objectively justified. In this assessment, the contracting party enjoys a certain margin of appreciation. Applying this test to the case at hand, it is striking that the objective of treating these applicants differently because of the conduct of their parent is to make sure that the parent cannot exploit the position of the child to obtain a right of residence for itself. Considering that the mothers in both cases would not be able to exploit the position of their adult children – as Dutch immigration law does not allow for a residence permit for them on this ground in any way – the differential treatment is not at all necessary and should therefore be regarded as being discriminatory.

As stated at the start of this blog, irregular minors find themselves in a vulnerable position. Especially in cases in which the irregular migrants did not choose to become irregular migrants, because their parents just took them to a certain country and settled irregularly, I believe it is important that these young adults can rely on the protection of the right to respect for private life. In that light, I believe that the approach based on the ruling of the Court in Butt should be reconsidered. On 29 June 2018 the Institute of Immigration Law, in association with the Specialisten Vereniging Migratierecht Advocaten (Specialists’ Association for Immigration Law Lawyers), will organize a symposium on this issue in the context of the honours course ‘The Immigrant Child: Challenges and Opportunities of International Migration for Children’.