Populism, Exceptionality and the Right of Migrants to Family Life Under the European Convention on Human Rights

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T1 - Populism, Exceptionality and the Right of Migrants to Family Life Under the European Convention on Human Rights

AU - Stoyanova, Vladislava

PY - 2018

Y1 - 2018

N2 - The populist turn in national and international politics includes one common question across countries: curbing immigration and limiting the rights of migrants. In the light of these restrictive tendencies, the questions that this article seeks to address are: whether and how the European Convention on Human Rights (ECHR), as interpreted by the European Court of Human Rights (ECtHR), can be a point of resistance against populism? More specifically, how might the ECtHR respond to the anti-migration dimension of the populist turn when adjudicating cases implicating the rights of migrants (with focus on the right to family life)? Given, the challenging political environment engendered by populism, how has the Court managed to maintain its standing in the sensitive area of migration? I acknowledge that the Court has offered a space where the state has to advance reasoned arguments to justify disruptions of family life in pursuit of immigration control objectives. At the same time, however, I also demonstrate that this space does not reflect the rigor of scrutiny as we generally know it in human rights law (i.e. the proportionality reasoning with its distinctive subtests). The Court acts with restraint; it sides with the sovereign and, therefore, any populist attacks (e.g. robbing ‘the people’ of their sovereignty) against the Court are unsubstantiated. I also air a note of caution for the Court itself. More specifically, in its restraint to exercise resistance against the sovereign, the Court is dangerously getting close to utilizing populist tools. Finally, I explain the ‘procedural turn’ taken by the Court when adjudicating the right to family life of migrants. While I acknowledge that this is a useful tool for the Court to maintain its standing in the sensitive area of migration, I also indicate the dangers that might emerge from its application.

AB - The populist turn in national and international politics includes one common question across countries: curbing immigration and limiting the rights of migrants. In the light of these restrictive tendencies, the questions that this article seeks to address are: whether and how the European Convention on Human Rights (ECHR), as interpreted by the European Court of Human Rights (ECtHR), can be a point of resistance against populism? More specifically, how might the ECtHR respond to the anti-migration dimension of the populist turn when adjudicating cases implicating the rights of migrants (with focus on the right to family life)? Given, the challenging political environment engendered by populism, how has the Court managed to maintain its standing in the sensitive area of migration? I acknowledge that the Court has offered a space where the state has to advance reasoned arguments to justify disruptions of family life in pursuit of immigration control objectives. At the same time, however, I also demonstrate that this space does not reflect the rigor of scrutiny as we generally know it in human rights law (i.e. the proportionality reasoning with its distinctive subtests). The Court acts with restraint; it sides with the sovereign and, therefore, any populist attacks (e.g. robbing ‘the people’ of their sovereignty) against the Court are unsubstantiated. I also air a note of caution for the Court itself. More specifically, in its restraint to exercise resistance against the sovereign, the Court is dangerously getting close to utilizing populist tools. Finally, I explain the ‘procedural turn’ taken by the Court when adjudicating the right to family life of migrants. While I acknowledge that this is a useful tool for the Court to maintain its standing in the sensitive area of migration, I also indicate the dangers that might emerge from its application.

KW - Public international law

KW - Proportionality

KW - European Convention on Human Rights

KW - Migrant

KW - Populism

KW - Folkrätt

KW - Europeiska konventionen om skydd för de mänskliga rättigheterna och de grundläggande friheterna

KW - Migration

M3 - Article

JO - European Journal of Legal Studies

JF - European Journal of Legal Studies

SN - 1973-2937

ER -