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Article 8 of the European Convention on Human Rights (ECHR) recites: “Everyone has the right to respect for his private and family life, his home and his correspondence.” These are powerful words which call on states to respect an extremely important right. However, it is qualified and can be restricted for, among others, interests of national security, public safety or the economic well-being of the country, for the protection of the rights and freedoms of others.
We will explore, in this article, how Article 8 can be applied in relation to the peculiar and unique condition of asylum seekers and the implications of the use of Article 8, especially for children seeking asylum.
Not long ago, we here at YRM explored the migrants’ crisis confronting Europe from a different perspective and the issue has been increasingly widely debated in recently years.
Currently, the crisis is undeniable and the condition of asylum seekers within Europe needs to be assessed thoroughly. In fact, there have been an increasing number of refugees and asylum seekers making the perilous journey westward: masses of people fleeing from savage wars in their home countries. Ultimately, this influx has induced western European states to introduce increasingly restrictive legislation and policies on asylum.
What happens to a family of asylum seekers when they enter a new country? What rights do they have? Can they be deported? Can they be unified with the family members left behind? These are just some of the many questions which arise in relation to asylum seekers when they arrive on European shores.
Here we will focus on the protection offered (or not) by Article 8, specifically on the question of the transfer/reunification of refugee families – which often brings with it potentially dangerous consequences for children. As much as there is no express provision relating to asylum in the ECHR, the case-law developed by the Strasbourg Court under Article 8 has created a basis for the legal development of the protection of asylum seekers.
Article 8 is relevant in circumstances concerning the family life of the refugee or individual who has been recognised as a person it is unlawful or unreasonable to expel. This issue came before the Court in the case of Gül v Switzerland, concerning a Turkish Kurd who had sought asylum in Switzerland, having left his family in Turkey. The applicant’s wife, an epileptic, was brought to Switzerland since she needed specific medical treatment. She was granted a humanitarian permit by the Swiss authorities. Thus, the husband withdrew his asylum appeal since this was a legal requirement for the issue of the humanitarian permits. The couple had another child in Switzerland but when they sought permission for their older child, who was still in Turkey, to join them, it was refused since they were only resident, not domiciled, in Switzerland.
In relation to the facts, the Court held that the applicant had left Turkey by making a free choice since he ‘preferred’ to seek employment in Switzerland, even though he abandoned his asylum claim only to receive the humanitarian permit. The Court also found that the older child grew up in Turkey’s “cultural environment”, although the child was Kurdish and lived with Kurdish families.
Ultimately, the Court held that there had been no interference with the applicant’s right to respect for his private and family life since there were no obstacles preventing the family from conducting their life together in Turkey.
Another relevant case that shows the implications of Article 8 in cases of asylum seekers and refugees, especially for children, is Tarakhel v Switzerland. This case focused on a potential violation of Article 3 in relation to an Afghan family that was to be transferred from Switzerland to Italy in reception centers not providing the necessary human conditions of life for the children. However, in the decision, the Court ruled that, in these cases, it is of the upmost importance to consider the child’s extreme vulnerability since this can be a decisive factor in determining the outcome of a case (see also the case of Mubilanzila Mayeka and Kaniki Mitunga v Belgium.) Children have not only special needs related to their age and lack of independence, but also to their asylum-seeker status and their difficulty in enforcing their rights. These factors might be useful to consider in relation to a potential violation of Article 8.
In addition to the European Convention, the United Nations Convention on the Rights of the Child encourages States to take appropriate measures to ensure that a child who is seeking to obtain refugee status can access protection and humanitarian assistance. These are issues that need to be tackled since the ones that are suffering the most are the ones that need to be protected the most and, from a human rights perspective, the paradox arises when they become also the ones that have the most difficulty enforcing their human rights. Moreover, in reception centres for refugees there are several problems regarding legal aid, care and assistance. For instance, the organisation, Médecins Sans Frontières (Doctors Without Borders), reported that in Pozzallo (Italy) the conditions were “unacceptable”.
Special care needs to be ensured for children, whether accompanied by their parents or alone (as established in the case of Popov v France.) Thus, reception conditions for these children need to be adapted to their age, sex and other factors, such as the unity of the family.
The misuse of Article 8 in the case of Gül v Switzerland and the decision of the Court not to find a violation of the right to respect for family life represents a highly disappointing and undesirable outcome. It raises significant questions, such as whether a Swiss child would have been treated in the same way, upon separation from her parents. Is a child supposed to live his life away from his family since his parents could not rejoin him in Turkey due to the mother’s health problems? According to the Court, yes.
However, above we saw the Court take a slightly different approach in the case of Tarakhel v Switzerland, where they recognised the particular condition of children seeking asylum and their vulnerability. They held that many factors, including age and whether or not the child is accompanied by an adult, must be taken into account. In cases of asylum seekers arriving in a country, extra care needs to be taken in relation to children and proper assistance provided in respect of their basic human rights.
The Tarakhel judgement highlights how Article 8 can be harnessed to put pressure on states to ensure that they provide refugee children with care and support when they arrive in Europe. When contrasted with the Gül judgement, we also see how Article 8 is a perfect example of how many human rights implications the current refugee crisis manifests and, thus, reminds us that the need for urgent and efficient action is present. In particular, there is a need for special measures to be adopted for the protection of children seeking asylum in European countries. Their lives cannot be forgotten and their future is, and always will be, a responsibility which we must deal with carefully and respectfully.