Počet záznamů: 1  

How can the ECtHR case-law on family migration be more consistent and fair?

  1. Údaje o názvuHow can the ECtHR case-law on family migration be more consistent and fair? [rukopis] / Jennie Edlund
    Další variantní názvyThe Influence of Intense Migratory Influx to the EU on The Application of the Right to Family and Private Life in Immigration and Asylum Case-law
    Osobní jméno Edlund, Jennie, (autor diplomové práce nebo disertace)
    Překl.názThe Influence of Intense Migratory Influx to the EU on The Application of the Right to Family and Private Life in Immigration and Asylum Case-law
    Vyd.údaje2022
    PoznámkaVed. práce Václav Stehlík
    Oponent Dalibor Jílek
    Oponent Lucia Mokrá
    Dal.odpovědnost Stehlík, Václav, 1977- (školitel)
    Jílek, Dalibor, (oponent)
    Mokrá, Lucia, (oponent)
    Dal.odpovědnost Univerzita Palackého. Katedra mezinárodního a evropského práva (udelovatel akademické hodnosti)
    Klíč.slova migration * ECtHR * migration * ECtHR
    Forma, žánr disertace dissertations
    MDT (043.3)
    Země vyd.Česko
    Jazyk dok.angličtina
    Druh dok.PUBLIKAČNÍ ČINNOST
    TitulPh.D.
    Studijní programDoktorský
    Studijní programInternational and European Law
    Studijní oborInternational and European Law
    kniha

    kniha

    Kvalifikační práceStaženoVelikostdatum zpřístupnění
    00265481-139295798.pdf15872.1 KB07.03.2022
    PosudekTyp posudku
    00265481-ved-785456152.docxPosudek vedoucího
    00265481-opon-359044990.pdfPosudek oponenta
    Průběh obhajobydatum zadánídatum odevzdánídatum obhajobypřidělená hodnocenítyp hodnocení
    00265481-prubeh-385958390.pdf14.02.201907.03.202228.06.2022Hodnocení známkou

    Family migration is one of the main legal migration routes to European States. One third of all third country nationals (TCN) arriving to Europe are due to family reasons. Due to the increased migratory influx to Europe, some States have implemented stricter rules for family migration and made it harder for families to unite. This has caused friction between some States and the EU. In this thesis the object of the inquiry is whether and how the case-law of the ECtHR on the right to respect for family life in the immigration context can be more consistent and fair among all applicants in order to give Contracting Parties and individuals more certainty and generate a more convergent practice by the States and increase the precedent value of the Court's judgements. In order to answer the research question three assumptions, which are based on the three main problematic developments within the case-law, are made in this thesis. The first assumption is that the case-law of the ECtHR on the right to respect for family life is inconsistent and unpredictable. Cases often turn on distinguishing facts rather than principles and the multi-factor approach produces much uncertainty. Even though the ECtHR's case-law allows States an area of discretion and even if developing systematic and reasonably foreseeable principles is a difficult task due to the nature of individual circumstances particular to each case, clearer rights and more rigorous proportionality assessments could be achieved as can be seen in the context of EU law and within the case-law of the Court of Justice of the European Union (CJEU). The member States have the primary responsibility to protect the rights and freedoms laid down in the European Convention of Human Rights (ECHR) including the right to family life and the European Court of Human Rights (ECtHR) plays a subsidiary role in protecting the rights. This means, when there is a dispute whether the State has complied with its obligations under the ECHR, i.e., whether a violation of the human right of family life has taken place, the ECtHR can examine applications from individuals. The Court's work has a significant impact since the judgements are binding for the member States. Therefore, it is crucial for both migrants and destination countries to have clear and predictable legalisation concerning family migration in place that is safeguarding human right to family life while controlling migration.In this thesis the object of the inquiry is whether and how the case-law of the ECtHR on the right to respect for family life in the immigration context can be more consistent and fair among all applicants in order to give Contracting Parties and individuals more certainty and generate a more convergent practice by the States and increase the precedent value of the Court's judgements. In order to answer the research question three assumptions, which are based on the three main problematic developments within the case-law, are made in this thesis. The first assumption is that the case-law of the ECtHR on the right to respect for family life is inconsistent and unpredictable. Cases often turn on distinguishing facts rather than principles and the multi-factor approach produces much uncertainty. Even though the ECtHR's case-law allows States an area of discretion and even if developing systematic and reasonably foreseeable principles is a difficult task due to the nature of individual circumstances particular to each case, clearer rights and more rigorous proportionality assessments could be achieved as can be seen in the context of EU law and within the case-law of the Court of Justice of the European Union (CJEU). The second assumption is that the differentiation in the level of protection between settled migrants and migrants seeking an entry or requesting to regularise their irregular migration status is not defendable and is in contrast with the ECtHR's own case-law, which establishes that similar considerations should be applied regarding positive and negative obligations that derive from Article 8. In cases where migrants requesting an entry based on their family ties the Court assumes that a State is not interfering in established family life when refusing an entry. This argument is not convincing as the reasoning solely relates to circumstances concerning the immigration status and not to the family life itself. The lack of justifying the refusal in these kinds of cases is a problem and has resulted in a very high threshold for the cases to comply with Article 8 in comparison to cases where settled migrants with a right of residence is invoking their family ties in defence not to be expelled. The third assumption is that the Court doesn't examine the full range of relevant rights in the United Nations Convention on the Rights of the Child (CRC) when applying the principle of the best interests of the child. The ECtHR's immigration case-law on Article 8 of the ECHR has shown an uneven and uncertain application of the child's best interests. Little significance is attached to the child's respect for family life when determining whether the immigration measure is compatible with the ECHR. It is also uncertain what weight the child's best interests is given in the balancing exercise which generates unpredictability. The objective of this study is to find out whether and how the ECtHR's case-law can be more consistent and fair when determining compliance with Article 8 of the ECHR in the immigration context. The first aim of the study is to determine whether the inconsistent case law can be helped by the influence of EU regulations and the CJEU case-law. The second aim of the study is to find out whether the unequal level of protection in different migration cases can be reduced by determining all cases under the same test and distinguishing cases based on family matters instead of migration status. The third aim of the study is to clarify whether the application of the best interests of the child can be more certain and predictable by examining the full range of relevant rights in the CRC and by providing guidance on which factors it would weigh more heavily in the balancing exercise.

Počet záznamů: 1  

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