Populism, exceptionality, and the right to family life of migrants under the European Convention on Human Rights

Abstract

The recent populist turn in national and international politics poses a threat to the rights of migrants. In this context, the key question that this article addresses is 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 politics when adjudicating cases implicating the rights of migrants (with a focus on the right to family life)? In this article, I acknowledge that the Court, through its adjudicative function, has created 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 usual rigor of scrutiny conducted by the Court in cases that do not concern immigration policies (i.e. the proportionality reasoning with its distinctive subtests is applied with serious aberrations). The Court acts with restraint when called upon to uphold the rights of migrants; it sides with the sovereign states and, therefore, any populist attacks against the Court are unsubstantiated. I would like to also inject a note of caution for the Court itself about how it reasons. More specifically, in its restraint to exercise resistance against the sovereign states’ entitlements in the area of migration, the Court is getting dangerously 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. In particular, controversial decisions are left to be taken at the national level and the Court will be reluctant to examine them unless the quality of the national decision-making process is suspect.