Guide on Article 8 of the Convention – Right to respect for private and family life
es, entail a violation of Article 8 if they create disproportionate repercussions on the private or family life, or both, of the individuals concerned (Hoti v. Croatia, § 122). 285. Moreover, in this context, Article 8 may involve a positive obligation to ensure effective enjoyment of the applicant’s private and/or family life (Hoti v. Croatia, § 122). In the same case, the national authorities infringed a stateless immigrant’s right to private life by failing, for years, to regularise his resident’s status and leaving him in a situation of insecurity (§ 126). The State had not complied with its positive obligation to provide an effective and accessible procedure or combination of procedures enabling the applicant to have the issues of his further stay and status in Croatia determined with due regard to his private-life interests under Article 8 (§ 141). In Sudita Keita v. Hungary, the State also failed to comply with its positive obligation to provide an effective and accessible procedure, or a combination of procedures, enabling the de facto stateless applicant to have the issue of his status in Hungary determined with due regard to his private-life interests under Article 8 (§ 41). In particular, the applicant had had protracted difficulties in regularising his legal situation for fifteen years, with adverse repercussions on his access to healthcare and employment and his right to get married. 286. The Court has held the failure to regulate the residence of persons who had been “erased” from the permanent residents register following Slovenian independence to be a violation of Article 8 (Kurić and Others v. Slovenia [GC], § 339). 287. Where there is an arguable claim that expulsion threatens to interfere with a non-citizen’s right to respect for his private and family life, Article 13 in conjunction with Article 8 of the Convention requires that States must make available to the individual concerned the effective possibility of challenging the deportation or refusal of residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality (De Souza Ribeiro v. France [GC], § 83; M. and Others v. Bulgaria, §§ 122-132; Al-Nashif v. Bulgaria, § 133).
10. Deportation and expulsion decisions 47 288. As Article 8 protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity, the Court has held that that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of “private life” within the meaning of Article 8. Therefore, regardless of the existence of a “family life”, the expulsion of a settled migrant constitutes an interference with his or her right to respect for private life (Maslov and Others v. Austria [GC], § 63). 48 In order to determine whether the interference is necessary in a democratic society, it is important to bear in mind that States are entitled to control the entry of aliens into their territory and their residence there. The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel an alien convicted of criminal offences (ibid., § 68; Üner v. the Netherlands [GC], § 68). When assessing the proportionality of the interference under the right to private life, the Court has generally applied the criteria established in Üner v. the Netherlands [GC] (see, for example, Zakharchuk v. Russia, §§ 46 – 49) as regards settled migrants. For instance, in Levakovic v. Denmark, §§ 42-45, applying the Üner criteria, the Court did not find a violation of the “private 47 48
See also the Guide on Immigration. See also Deportation and expulsion decisions.
European Court of Human Rights
69/161
Last update: 31.08.2021
