Article 8 ECHR and the ‘temporary turn’ in European asylum policies

Jessica Schultz; Jens Vedsted-Hansen

doi:10.1177/1023263X251338505

Article 8 ECHR and the ‘temporary turn’ in European asylum policies

^*Corresponding author af dette arbejde

Juridisk Institut

Publikation: Bidrag til tidsskrift/Konferencebidrag i tidsskrift /Bidrag til avis › Tidsskriftartikel › Forskning › peer review

Abstract

In response to the relatively high numbers of refugee claimants in 2015, European countries have introduced restrictive policies aimed at deterring future arrivals. In addition to border controls and safe third country agreements, measures have included the mandated cessation of refugee status when the need for protection ends, sharpened conditions for permanent residence and barriers to family reunification. Through an analysis of relevant Strasbourg jurisprudence, we examine how these policies, part of a ‘temporary turn’ in asylum, interact with refugees’ right to private and family life under Article 8 ECHR. We show that attachments developed between refugees and their countries of asylum are systematically devalued by three factors related to the wide margin of appreciation granted to states in these cases: (1) the acceptance of differential treatment of various refugee groups, (2) the formalistic distinction between ‘settled’ and ‘precarious’ migrants and (3) the limited weight given to children's best interests. We conclude that the European Court of Human Rights’ approach contributes to long-term uncertainty for refugees and their descendants in tension not only with the solutions orientation of international refugee law, but also with human rights law principles of legal certainty and effective protection.

Originalsprog	Engelsk
Artikelnummer	1023263X251338505
Tidsskrift	Maastricht Journal of European and Comparative Law
Antal sider	19
ISSN	1023-263X
DOI	https://doi.org/10.1177/1023263X251338505
Status	E-pub / Early view - 13 maj 2025

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Citationsformater

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abstract = "In response to the relatively high numbers of refugee claimants in 2015, European countries have introduced restrictive policies aimed at deterring future arrivals. In addition to border controls and safe third country agreements, measures have included the mandated cessation of refugee status when the need for protection ends, sharpened conditions for permanent residence and barriers to family reunification. Through an analysis of relevant Strasbourg jurisprudence, we examine how these policies, part of a {\textquoteleft}temporary turn{\textquoteright} in asylum, interact with refugees{\textquoteright} right to private and family life under Article 8 ECHR. We show that attachments developed between refugees and their countries of asylum are systematically devalued by three factors related to the wide margin of appreciation granted to states in these cases: (1) the acceptance of differential treatment of various refugee groups, (2) the formalistic distinction between {\textquoteleft}settled{\textquoteright} and {\textquoteleft}precarious{\textquoteright} migrants and (3) the limited weight given to children's best interests. We conclude that the European Court of Human Rights{\textquoteright} approach contributes to long-term uncertainty for refugees and their descendants in tension not only with the solutions orientation of international refugee law, but also with human rights law principles of legal certainty and effective protection.",

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N2 - In response to the relatively high numbers of refugee claimants in 2015, European countries have introduced restrictive policies aimed at deterring future arrivals. In addition to border controls and safe third country agreements, measures have included the mandated cessation of refugee status when the need for protection ends, sharpened conditions for permanent residence and barriers to family reunification. Through an analysis of relevant Strasbourg jurisprudence, we examine how these policies, part of a ‘temporary turn’ in asylum, interact with refugees’ right to private and family life under Article 8 ECHR. We show that attachments developed between refugees and their countries of asylum are systematically devalued by three factors related to the wide margin of appreciation granted to states in these cases: (1) the acceptance of differential treatment of various refugee groups, (2) the formalistic distinction between ‘settled’ and ‘precarious’ migrants and (3) the limited weight given to children's best interests. We conclude that the European Court of Human Rights’ approach contributes to long-term uncertainty for refugees and their descendants in tension not only with the solutions orientation of international refugee law, but also with human rights law principles of legal certainty and effective protection.

AB - In response to the relatively high numbers of refugee claimants in 2015, European countries have introduced restrictive policies aimed at deterring future arrivals. In addition to border controls and safe third country agreements, measures have included the mandated cessation of refugee status when the need for protection ends, sharpened conditions for permanent residence and barriers to family reunification. Through an analysis of relevant Strasbourg jurisprudence, we examine how these policies, part of a ‘temporary turn’ in asylum, interact with refugees’ right to private and family life under Article 8 ECHR. We show that attachments developed between refugees and their countries of asylum are systematically devalued by three factors related to the wide margin of appreciation granted to states in these cases: (1) the acceptance of differential treatment of various refugee groups, (2) the formalistic distinction between ‘settled’ and ‘precarious’ migrants and (3) the limited weight given to children's best interests. We conclude that the European Court of Human Rights’ approach contributes to long-term uncertainty for refugees and their descendants in tension not only with the solutions orientation of international refugee law, but also with human rights law principles of legal certainty and effective protection.

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