II. ECtHR: from family life to private life

ECHR Article 8 stipulates:

1. (1) Everyone has the right to respect for his private and family life, his home and his correspondence.

2. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 8 was first invoked before the ECtHR to protect an individual from deportation in 1988. In Berrehab v. Netherlands the applicant was a Moroccan national living in the Netherlands facing deportation from the Netherlands following his divorce from a Dutch woman. He and his young daughter of that dissolved marriage complained that if he were deported their right to respect for family life would be violated. The ECtHR held that the restriction on family rights which deportation would involve had to be justified as ‘necessary in a democratic society’. In the light of the very close ties between father and daughter which were threatened by the proposed deportation, the Court held that a proper balance had not been achieved between the legitimate aim of the deportation, namely, in that case, the promotion of the economic wellbeing of the country, and the means used to achieve that aim.Footnote ³

In most subsequent cases before the ECtHR where Article 8 was invoked to prevent deportation, the deportation orders had been issued following criminal convictions of the applicants.Footnote ⁴ While the legitimate aim cited by the respondent governments in those cases was the prevention of crime and disorder rather than of the economic wellbeing of the country, the reasoning as to the role of the right to family life was similar to that put forward in Berrehab. In particular, the ECtHR accepted the proposition that deportation which resulted in the separation of families across international borders was an interference with family life.

In Berrehab, the only person whose departure was anticipated by the deportation order was the applicant. There was no question of his former wife or daughter joining him. Therefore deportation would have unavoidably affected the applicants' family unity. In later cases a more complicated issue arose, when the possibility was envisaged that the entire family would leave with the applicant, and so remain united. In Beldjoudi v. France (1992),Footnote ⁵ the applicants were a foreign national and his French wife of over twenty years. Mr Beldjoudi, the potential deportee, had been born in France but was not a French national. He had been issued a deportation order following his criminal activity. In this case the Court envisaged the wife following the deportee, and examined the consequences of their move. It determined that the wife would likely have encountered great difficulty in adapting to the country of destination, and there might be real practical or even legal obstacles. The Court therefore pointed out that ‘the interference in question might imperil the unity or even the very existence of the marriage’, and accordingly ruled that enforcement of the deportation order would be disproportionate to the legitimate aim pursued and therefore a violation of Article 8.Footnote ⁶ The Court thus went a step further in relying on the right to family life as protection against deportation, by including in ‘interference’ not only an immediate separation directly caused by government action, but also the placing of the family (through government action) in a situation which put its unity under peril.Footnote ⁷

While the question of whether deportation of an entire family unit could be considered interference with family life was not pursued in the ECtHR, the Beldjoudi judgment opened up a different channel for protection from deportation, namely the right to private life, also guaranteed in ECHR Article 8. Judge Martens, in a separate concurring opinion, opined that the Court was focusing too narrowly on the right to respect for family life, thereby excluding consideration of potential deportees' social integration, regardless of their family status. He argued that the totality of the social ties of individuals should be taken into account in assessing the potential impact of deportation.Footnote ⁸ This examination would fall within the protection of the right to ‘private life’ within the meaning in Article 8, which comprises to some extent the right to establish and develop relationships with other individuals.Footnote ⁹

Nasri v. France (1995)Footnote ¹⁰ concerned the potential deportation of a deaf-mute applicant who had committed a substantial number of serious offences. He had lived all but five years of his life in France, where his entire family resided. The ECtHR held that if the deportation order against the applicant were executed it would constitute a violation of the applicant's family life under Article 8. Once again, some of the judges criticised the reliance exclusively on the right to family life as ‘somewhat artificial’Footnote ¹¹ and ‘too formalistic’.Footnote ¹² Since in that case there were clear family ties on which the Court based its judgment, the statements on private life remained obiter dicta.

An important change took place in C v. Belgium (1996). Again, at issue was the potential deportation following criminal convictions of a foreign national who had resided in Belgium since childhood. He held custody of his child following a dissolved marriage with a Moroccan woman who had joined him in Belgium. Unlike in earlier cases alleging violation of Article 8, here the Court examined the existence of both family life and private life. Noting that the applicant had lived in Belgium from the age of eleven, had gone to school there, had undergone vocational training there and had worked for a number of years, the Court stated that deportation would have constituted interference not only with the family life of the applicant, but also with his private life.Footnote ¹³ In the circumstances, it found that the interference ‘was not so drastic as that which may result from the expulsion of applicants who were born in the host country or first went there as young children’.Footnote ¹⁴ However, the judgment paved the way for the right to private life to serve as a separate protection against deportation, regardless of the extent to which the applicant had family connections. It further suggested that long-term integrated immigrants constituted a category of persons deserving particular protection.

The reference to both family life and private life became a regular feature in the jurisprudence of the ECtHR, but the Court was reluctant to prohibit deportation on the ground of violation of private life alone (Thym, Reference Thym2008, p. 90), and its rhetoric gave greater weight to family life over private life as a bar to deportation. For example, in Ezzouhdi v. France (2001) the ECtHR noted that the removal of a settled immigrant from France ‘was an interference with the right of the applicant not only to his private life but also to his family life’,Footnote ¹⁵ implying that violation of respect for family life was graver than violation of respect for private life. The reluctance to relinquish ‘family life’ as the relevant right led to judgments that were sometimes less than clear, where the formal bar to deportation was ‘family life’ but the prominent interference was with social and other ties outside the family.Footnote ¹⁶ Factors relating to ‘private life’ were incorporated within ‘family life’ further, when the ECtHR adopted the Boultif criteria for assessing the impact that a deportation order would have on the immigrant's family life. Boultif v. Switzerland (2001) concerned the deportation of an Algerian national married to a Swiss national, following criminal convictions. He complained that the deportation had resulted in him being separated from his wife and thus violated his right under Article 8. Upon examining the circumstances and the difficulties involved in the wife following her husband to Algeria, the Court concluded that the applicant's wife could not be expected to follow him to Algeria. It subsequently ruled that the deportation was indeed a violation of Article 8. The Court listed various factors in its decision, which have since served as benchmarks for the proportionality of deportation in other cases. Some of those criteria directly concerned the internal family relationship, including the applicant's family situation, whether the spouse knew about the offence when she or he entered into a family relationship, and whether there are children of the marriage and their ages. Other criteria related to the relationship of family members with their respective surrounding environment, such as the nationalities of the various persons concerned, and the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be deported. Finally, the Court referred to the length of the applicant's stay in the country from which he or she is to be deported. Yet the Court found that the disproportionate interference affected only ‘family life’.Footnote ¹⁷

A few months earlier, in Ezzouhdi v. France, another subtle step was taken towards reliance on ‘private life’ rather than ‘family life’. Despite finding that the applicant's family links in France were neither emotionally strong or such that involve dependence,Footnote ¹⁸ the Court invoked the ‘essential social and family ties’ of the applicant were in France rather than in the destination for deportationFootnote ¹⁹ to rule that the interference was excessive to its aim, and that Article 8 had been violated. Although it did not elaborate further, the right that was violated must have been the right to private life. Moreover, ‘private life’ in this case encompassed family ties that were not protected under ‘family life’.

A sea change occurred in 2003 in Slivenko v. Latvia, where for the first time the ECtHR relied exclusively on the private life of the applicants as a bar to deportation not only in describing the facts but also in defining the right violated under Article 8. The first applicant, Tatjana Slivenko, arrived in Latvia with her parents when she was one month old, as her father was serving in the Soviet military. She later married Nikolai Slivenko, also a Soviet military officer, who was stationed in Latvia. They had a daughter, the second applicant (who was fifteen when the events in question began and twenty-two when the judgment was given). All three were permanent residents of Soviet-era Latvia.

After Latvia regained independence in 1991, it concluded an agreement with Russia on the status of former Soviet military personnel stationed in Latvia. The agreement provided for the departure of Russian military troops from Latvia, together with members of their families. The Slivenkos were accordingly ordered to leave the country. The husband Nikolai left, but the applicants wanted to remain. After lengthy battles and a forcible deportation, they appealed to the ECtHR against the violation of their right to family and private life.

The Court stated that the applicants could not rely on the right to ‘family life’. The first applicant's elderly parents were adults who did not belong to the core family and who had not been shown to have been dependent members of the applicants' family. Insofar as the core family was concerned, namely the applicants and Nikolai, the Court emphasised that the removal from the country was not aimed at breaking up the family.Footnote ²⁰ Indeed, the Russian–Latvian treaty respected the family life of the persons concerned by obliging Russia to accept the whole family within its territory, irrespective of the origin or nationality of the individual family members.Footnote ²¹ The Court then proceeded to examine the interference with the applicants' private life. It found that the applicants had been removed from the country where they had developed uninterruptedly since birth the network of personal, social and economic relations that make up the private life of every human being. In these circumstances, their removal from Latvia constituted an interference with their ‘private life'.

The Slivenko case presented a unique challenge to the Court, since the right to private life which was allegedly violated stood in conflict with family unity. The Court therefore had no choice but to squarely address the scope of ‘private life’ as distinct from ‘family life’. The matter was compounded by the fact that the applicants attempted to rely on the right to family life by reference to elderly family members who were not dependent on them, and at the same time disregard the family link with the first applicant's husband, a link which the Court has always held in high regard. Had the Court given weight to the right to family life, it would have had to pursue the logical extension of its statements on how the Russian–Latvian treaty protected the right to family life by permitting the applicants' deportation, and confirm the deportation.

The Court's reluctance to avoid this outcome is not surprising. Before it were long-term settled immigrants, who, unlike previous applicants, had no criminal past and whose deportation was based solely on their affiliation with others. Moreover, they were the ‘victims’ of the convergence of two instruments, the Russian–Latvian treaty and Latvian legislation. Latvian legislation allowed deportation of the applicants on the ground that they were related to the first applicant's father – even though he himself could not be deported. The Russian–Latvian treaty complemented this legislation by requiring Russia to accept the applicants.Footnote ²²

Apparently wishing to avoid this conclusion, the ECtHR opted for relying on the applicants' private life despite its detrimental effect on family unity. However, since the family unity in that case (husband and wife, and possibly father and minor daughter) was the core relationship protected in all previous cases, giving priority to private life over it might potentially have implied a diminution of the protection of the right to family life and its inferiority to the right to private life. Perhaps to avoid this, the Court chose to delineate the right to family life narrowly. In this manner, the protection of private life could be seen not as generally taking precedence over the protection of family life, but only over family ties outside the scope of the protected right. The shrinking of the scope of the protected right does not necessarily imply lesser protection from deportation, since whatever falls outside the protected right to family life – relationships other than with spouses or dependants – is covered by the right to private life.

In Slivenko, the ECtHR linked the protection of the applicants' right to private life with their status as long-term immigrants. Indeed, calls for special protection to long-term immigrants go back to Beldjoudi, where Judge Martens questioned whether the ban on the deportation of nationals should be applied equally to long-term, integrated immigrants.Footnote ²³ In Boujlifa v. France, the joint dissenting opinion of Judges Baka and Van Dijk considered it highly desirable that the Court should take a clear position on whether and to what extent second-generation immigrants constituted a special category for whom deportation would require very serious reasons to justify it under Article 8.Footnote ²⁴ Through the late 1990s and early 2000s the ECtHR has increasingly referred to long-term immigrants as a discrete category of persons whose residence is protected by the right to respect for private life. Therefore the Court has regard to the special situation of foreigners who have spent most, if not all, of their childhood in the state of residence, were brought up there and received their education there.Footnote ²⁵ In 1994 it was been suggested that underlying the willingness of the ECtHR to force the social life of individuals into the term ‘family life’ and the gradual reliance on ‘private life’ was the treatment of second-generation immigrants as de facto citizens (Cholewinski, Reference Cholewinski1994, p. 298). Since then, a more immediate policy seems to have influenced the ECtHR, namely the growing protection of integrated immigrants directly under EU law, by assimilating permanent residents (nationals of third countries) to nationals of Member States. This protection reached a peak in 2003, with the adoption of Directive 2003/109, which stipulates the rights of long-term lawful residents in Member States.Footnote ²⁶ Those include protection from deportation with one exception, namely when the presence of the foreign resident constitutes an actual and sufficiently serious threat to public policy or public security.Footnote ²⁷ Even before the entry into force of the Directive, the Council of Europe's Committee of Ministers called for the assimilation of long-term residents to nationals by severely limiting the possibility of their deportation.Footnote ²⁸ While the ECtHR does not enforce EU law,Footnote ²⁹ the Directive may have an important effect on cases before the ECtHR. First, compliance with the Directive will likely result in fewer instances where individuals will need to resort to the ECtHR. Second, the formal entrenchment of the rights of long-term immigrants may affect the ECtHR's assessment of the proportionality of deportation measures even in cases not falling within the scope of the Directive, at least with respect to Member States which are bound by the Directive.

III. The Human Rights Committee: broadening the concept of family life

Like the ECHR, the ICCPR does not grant immigrants a right to residence.Footnote ³⁰ ICCPR Article 17 provides: ‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family … .’

The reluctance to interfere in the immigration policies of states is apparent in the HRC, where complaints against deportation such as those brought before the ECtHR have been very few. In the first case in which deportation was challenged on the basis of family life, M F v. The Netherlands,Footnote ³¹ a Chilean person was about to be deported from the Netherlands, to either Chile or Spain. He was living in common-law marriage with his pregnant girlfriend, an Israeli national, and he argued that since she would not be admitted to Spain or Chile, his deportation would be tantamount to interference with his privacy and family life. The HRC declared the complaint inadmissible, since it did not find any facts in substantiation of the claim of a breach.

It is unlikely that the bar to admissibility was the absence of a ‘family’. The HRC has interpreted the term very liberally, covering same-sex relationshipsFootnote ³² and even the relationship between individuals and the remains of their ancestors in an ancestral burial ground.Footnote ³³ Under the HRC's jurisprudence, cohabitation could easily replace the criterion of a formal relationship (Nowak, Reference Nowak2005, p. 394). Thus it is not clear why the Committee disregarded the impending separation of the couple as an interference with the family, unless the HRC's perception of ‘interference’ with the family did not extend to the creation of circumstances precluding the family from living together in a single country.

Protection from interference with the family was not invoked again against deportation until Winata v. Australia in 2001, which was a turning point in the HRC's jurisprudence. The communication concerned an alien couple about to be deported from Australia after residing there illegally for many years. They had a 13-year-old child, a citizen of Australia who was thereby entitled to remain in the country. Deportation of the parents would have compelled the family to choose whether the child remained alone in the country or accompanied his parents. Given that the child ‘has grown in Australia from his birth 13 years ago, attending Australian schools as an ordinary child would and developing the social relationships inherent in that’,Footnote ³⁴ the HRC found that deportation of the parents was an arbitrary ‘interference’ with the ‘family’, because ‘substantial changes to long-settled family life would follow’ whatever choice the parents made.Footnote ³⁵ Similar circumstances were presented in Madafferi v. Australia in 2004. The HRC noted that the state's reasons for the removal of a person concerned must be weighed against the degree of hardship the family and its members would encounter as a consequence of such removal.Footnote ³⁶ It noted the alien environment that the spouse and children would have faced (moving from Australia to Italy), the language barrier for the children, and the difficulty in caring under such circumstances for the expellee, whose mental health had been seriously troubled, in part by acts that could be ascribed to the state wishing to expel the individual.Footnote ³⁷

It is interesting that the HRC has gone further in the protection of the family than the ECtHR originally did. Article 17 was first successfully invoked against deportation in cases where the unity of the family was not necessarily at issue, since the possibility of relocating together was possible. In a 2003 case, the HRC decided that the separation of an asylum seeker's family by removing the wife and children without awaiting the final determination of the husband's proceedings would constitute a violation of Article 17.Footnote ³⁸ In that situation, the respondent state could not rely on his joining the family since until a final decision on his claim was made, this might have effectively constituted refoulement. In this case the interference of the deportation with the internal relationship of family members was more obvious.

The Winata and Madafferi jurisprudence expanded the notion of ‘interference’ with the family with respect to situations where the family has a free-standing right to remain in that state of residence. It combined the candidate expellee's right to family life with the attachment of his or her family to the state of residence. The result resembles the ‘private life’ jurisprudence under ECHR Article 8. The Committee's majority may well have been attempting to follow the ECtHR, which by 2001, when Winata was decided, was moving towards reliance on ‘private life’ in such situations.

In both Winata and Madafferi, several members of the Committee objected to the majority's interpretation of Article 17 precisely because it assimilated Article 17 to ECHR Article 8. They argued that Article 17 was intended to prevent interference in the family, through action that results in the inevitable separation between members of the family. They therefore questioned whether actions that result in changes to long-settled family life, when there was no obstacle to maintaining the family's unity, constituted interference in the family.Footnote ³⁹ Indeed, the ECtHR seems to have already acknowledged that the latter case was not one which concerned the family per se, and thus moved from ‘family life’ to ‘private life’. The HRC has much less leeway: on the one hand, ‘interference with the family’ suggests an even narrower protection than ‘family life’ by focusing on the internal functioning of the family unit; on the other hand, the HRC could not move from ‘family’ to ‘privacy’ as easily as the ECtHR had moved from ‘family life’ to ‘private life', since the term ‘privacy’ under the ICCPR had been interpreted as isolation from society and the public rather than the forging of social ties.

Although the majority opinion in Winata and Madaferri prevailed, so that Article 17 protects against deportation not only the unity of the family but also the family or its individual members in their social environment, ICCPR Article 17 and ECHR Article 8 still have different effects with respect to immigrants who are attached to the state of residence but have no formal family relationships. In such cases, the ECtHR might recognise a right to private life. Under the jurisprudence of the HRC, with no family nexus, there is no right-based protection from deportation.Footnote ⁴⁰

At the same time, like under the ECHR, the HRC has also leaned towards protection from deportation through status. ICCPR Article 12(4) stipulates: ‘No one shall be arbitrarily deprived of the right to enter his own country.’ This provision has been interpreted as applicable exclusively to nationals, but also prohibiting their deportation.Footnote ⁴¹ Although the prohibition in Article 12(4) is nonetheless qualified, the HRC ‘considers that there are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable’,Footnote ⁴² rendering the protection of nationals from deportation almost absolute.Footnote ⁴³

In 1996 the question arose whether Article 12(4) extends to persons other than nationals, and specifically long-term, integrated immigrants. Stewart v. Canada concerned a British citizen who had been residing in Canada since the age of seven. He was facing deportation from Canada on grounds of his criminal activity. The HRC majority was of the view that the term ‘his own country’ in Article 12(4) guaranteed protection on the basis of a person's status in the country. This encompassed more than nationals. Article 12(4) extends to ‘individuals who, while not nationals in a formal sense, are also not “aliens” within the meaning of article 13, although they may be considered as aliens for other purposes’.Footnote ⁴⁴ The Committee addedFootnote ⁴⁵ that the concept ‘his own country’

Since Mr Stewart's failure to acquire Canadian nationality was attributed to his own inaction, the HRC found that he was not protected by Article 12(4). In Madafferi v. Australia the Committee summarised its jurisprudence thus:Footnote ⁴⁶

Accordingly, under the HRC's jurisprudence, attachment to the territory through long-term presence does not suffice to protect a person from deportation. What is required is a formal link of nationality to the state, or special circumstances that justify substitution of that formal link, generally linked to the victimisation of the person with respect to formalising the relationship with the state of residence or in maintaining the nationality of another state.Footnote ⁴⁷ Persons holding an effective nationality of another state who have not been unfairly denied the possibility of naturalisation in the state of residence, are not protected by Article 12(4).Footnote ⁴⁸ Few ordinary long-term immigrants can therefore benefit from this provision.

The Stewart jurisprudence was very controversial.Footnote ⁴⁹ The minority opinion (on this point held by at least six of the Committee membersFootnote ⁵⁰) was that the ICCPR is concerned with the ‘strong personal and emotional links an individual may have with the territory where he lives and with the social circumstances obtaining in it’. Therefore a state is ‘one's own country’ not by virtue of formal ties, but by virtue of ‘the web of relationships that form his or her social environment’.Footnote ⁵¹ Accordingly, the dissenting Committee members opined that Article 12(4) invited consideration of such factual matters as long-standing residence, close personal and family ties, and intentions to remain, as well as to the absence of such ties elsewhere (Nowak, Reference Nowak2005, pp. 287–88; Jagerskiold, Reference Jagerskiold and Henkin1981, pp. 180–81; Henckaerts, Reference Henckaerts1995, p. 83; Hannum, Reference Hannum1987, pp. 59–60).Footnote ⁵² The minority view in Stewart attached to Article 12(4) a meaning similar to that of the ECHR's ‘private life’ under Article 8.

A certain assimilation of the majority and minority opinions was proposed by Mr Scheinin in Canepa v. Canada. Mr Scheinin, in critique of the majority opinion in Stewart as overly limited, added other potential categories of persons entitled to protection under Article 12(4), namely ‘if the person is stateless or if it would be impossible or clearly unreasonable for him or her to integrate into the society corresponding to his or her de jure nationality’.Footnote ⁵³ Like the majority view in Stewart, Mr Scheinin placed the emphasis on the inability to relocate to the state of nationality; but he expanded this ‘inability’ from formal to practical obstacles resulting from strong integration of the person in the state of residence.Footnote ⁵⁴ This modification effectively allows the merging of the minority view (examining the factual situation) within that of the majority's (requiring inability to deport) in certain instances.

The majority opinion was adopted in the HRC's General Comment on Article 12. Nonetheless, the minority opinion, which reads elements of a person's private (and family) life into the definition of ‘his own country’, may be preferable to that of the majority. First, it is difficult to imagine that the drafters of Article 12(4) intended to attach the specific meaning attributed by the majority to the very general terminology of the Article, namely that a state of residence becomes a person's own country only through the cumulative failures by two states – the state of nationality and the state of residence itself. It is similarly difficult to accept Mr Scheinin's proposition, that the term ‘his own country’ is defined negatively, by the inability of a person to integrate elsewhere than in the respondent state. The HRC itself left the door open to the accommodation of factual links to the state of residence, as the General Comment provides that ‘other factors may in certain circumstances result in the establishment of close and enduring connections between a person and a country’, and requested states to report on the rights of permanent residents to return to their country of residence.Footnote ⁵⁵

IV. Observations: status and rights, and the diversity of immigrants

This article analyses the way in which the rights related to family life and to private life have evolved as bars to deportation of long-term, integrated immigrants. The jurisprudence of the ECtHR reveals a gradual shift in the protection of integrated immigrants, from reliance exclusively on the right to family life towards acknowledgement of a more open-ended right to private life. Consequently, somewhat dubious expansions of the term ‘family life’, for example to include situations putting a strain on the integrity of the family, are no longer necessary. The concept of ‘private life’ is broad enough to cover situations related to the family but which do not concern its internal unity.

The jurisprudence of the HRC has also expanded the scope of ‘interference with … family’ to cover situations putting a strain on the integrity of the family. In the absence of the protection of ‘private life’ under the ICCPR, this expansion remains a vital – if controversial – tool in protecting integrated immigrants from deportation.

Beyond these situations, the ECHR and ICCPR differ in the normative framework of protection that they offer. The ICCPR protects individuals on the basis of their formal or quasi-formal status. The HRC minority has attempted to move away from this constraint, by interpreting the term ‘his own country’ under ICCPR Article 12(4) by reference not only to status but also to facts which may establish the existence of a private life. However, this attempt has so far not been successful, and protection under the ICCPR appears to remain status-based.

Under the ECHR protection is rights-based. Attempts have been made to transform the protection of the right to private life into effective immunity to long-term immigrants. Judges at the ECtHR are nonetheless concerned that the formal recognition of the status of a long-term immigrant would infringe upon the freedom of actions which states legitimately wish to retain.Footnote ⁵⁶ In Üner, the majority opinion squarely rejected the proposition that such assimilation between integrated immigrants and nationals be read into Article 8, insisting that states should be permitted to maintain the functionability of the Article.Footnote ⁵⁷ Nonetheless, in the criteria that it applies when determining whether deportation can be justified as an exception under Article 8(2), the ECtHR clearly accords integrated foreigners a privileged position in relation to other foreigners by putting added emphasis on their personal and social integration when assessing the proportionality of a deportation measure (Steinorth, Reference Steinorth2005, p. 193). Moreover, EU Directive 2003/109 advances assimilation between long-term integrated immigrants and nationals, with respect to EU Member States. The effect of this Directive on cases not falling within it remains to be seen.

In the light of this discussion, then, the distinction between status-based protection and rights-based protection may be reformulated: the ICCPR protects individuals by reference to how their status came to exist, while the ECHR protects individuals by reference to their future. Ideally, the grant of status reflects the recognition by the state of the entitlement to rights. It is an efficient means of guaranteeing rights without needing to have recourse to judicial measures in individual cases. However, by definition, status is not tailor-made for individuals but is based on strict inclusionary and exclusionary criteria. This raises the question of the effect of status-based protection on those not benefiting from the status in question. In the present case, the question concerns the effect of the protection of long-term integrated immigrants through their status on the protection of other immigrants, newly arrived or not integrated.

In a world of unlimited resources, the enjoyment of rights by one population need not be at the expense of another. In reality, there is sometimes a trade-off between the protection offered to those granted status, and the protection offered (or not) to others. The larger the population of beneficiaries of status, the less enthusiastic the state is likely to be in acknowledging the interests of persons who do not qualify for status. In other words, the growing status-based protection of long-term integrated immigrants may come at the cost of the protection of non-integrated immigrants who nonetheless have interests such as a family life in the state of residence. For these persons, the retention of rights-based protection is crucial. To ensure flexibility in reviewing state action with respect to this class of immigrants, it is important to maintain the individual rights as protection from deportation regardless of the strengthening of status-based protection.

This brings us back to the evaluation of the specific rights examined in this article and their respective merits with regard to immigrants.

The recognition of ties going beyond family links is crucial to integrated immigrants who, despite being well integrated into the society of the host country over a long period, may have little by way of family links with nationals (Sherlock, Reference Sherlock1998). The socialisation patterns of immigrants are very different from those of native residents of a state. The protection of family life as the immediate social structure may not be sufficient, since immigrants often enter into marriage and other family ties only much later than they become integrated in professional and business life, which form part of their private life.Footnote ⁵⁸ Indeed, cultural confusion often makes the intimacy of existing family a ‘defence system’, discouraging any attempts to forge new family ties with the native population (Geesey, Reference Geesey1995, p. 146). With respect to some immigrant populations such as economic migrants, establishing a family life in the state of residence might not even be an option, as they may have family in their country of origin.Footnote ⁵⁹

Furthermore, family life is protected because it is regarded as an inherent, stable and sustaining social network for individuals. In situations of immigration, family life may be channelled through a single individual, usually a partner.Footnote ⁶⁰ Social stability would be undermined, rather than promoted, if protection is limited to family life.

Moreover, in situations where an entire family is expected to be removed from the country, ‘family life’ is not the appropriate vehicle for protection from deportation. In such situations, it is not strictly the right to respect for family life that is violated, since the family as a unit can remain intact if it opts to relocate. It may face a significant hardship which cannot be ignored, but the matter is not one of family life. Arguably, even when an entire family is removed form the country, the hardship that it faces may lead to its breakdown. This possibility, explicit in Beldjoudi, may have been an underlying consideration in other cases. However, if it was, it remained unarticulated. The focus of protection is therefore changing from internal family relationships to those of the family as a unit or of family members with the larger social environment.

At the same time, even for immigrants, ‘family life’ cannot be subsumed into ‘private life’. Although the expansion of Article 8 to cover a person's social environment greatly reduced the need to rely on the right to family life, for some immigrants family life may still play an important role in protection from deportation. It is particularly pertinent in situations where the potential deportee suffers from social exclusion and cannot be said to enjoy a private life in the form of real social integration with significant interests, but is nonetheless linked by formal family ties to a national or long-term resident, whose relocation is not an option (Sherlock, Reference Sherlock1998). Wives brought from outside the country, whose lives are entirely dependent on those of their husbands, are an example of one class of such immigrants. Thus, it is important that the ECtHR has not subsumed the right to family life into the right to private life, but that it retain the two alongside each other. Each has the potential to capture different classes of people who need its protection.