Procedural Approach to the Public Interest in Migration Control when Applying Article 8 of the ECHR

Abstract

This research explores the European Court of Human Rights’ (ECtHR or the Court) application of Article 8 of the European Convention of Human Rights (ECHR) when engaging the public interest in migration control. The study research explains the current case law of the Court and examines when the public interest in migration control can be applied as a legitimate aim. The research is questioning whether the public interest in controlling migration can be used as a legitimate aim when an interference of the right to family life has been established and whether the public interest in migration control should be seen as a static factor. The research claims that the Court’s unclear way of distinguishing between positive and negative obligations and its lack of assessing the public interests when balancing the personal interests against the public interests in controlling migration makes the case law inconsistent and unclear. In order to make the case law more consistent the research suggests that the Court should use a procedural approach like in cases where the State’s interest in public safety is engaged.