Heighted Protection for Children in Immigration Proceedings Affirmed by ECtHR

Strasbourg- European Court of Human Rights By CherryX (Own work)

The European Court of Human Rights (ECtHR) ruled in Butt v. Norway that the State violated the right to respect for private and family life protected by Article 8 of the European Convention for Human Rights (ECHR) by withdrawing residence permits of two Pakistani siblings. The December 4, 2012, ECtHR decision affirmed a heightened standard of protection for children in immigration proceedings by expanding the possible range of exceptional circumstances under which Article 8 concerns outweigh state policy.

Siblings Johangir Abbas Butt and Fozia Butt received humanitarian residence permits from Norway in 1992. However, Norwegian immigration withdrew the permits in 1999 because their mother failed to disclose that the family had returned to live in Pakistan from 1992 to 1996. Since returning, the siblings have lived intermittently with their aunt and uncle, legal residents of Norway.

Article 8 of the ECHR offers general protection of a person’s private life, family life, and home from arbitrary interference by the State. Section 2 of Article 8 specifies that public authority cannot interfere with this right unless it “is in accordance with the law and is necessary [. . .] for the protection of health or morals, or for the protection of the rights and freedoms of others.” Thus, relying on ECHR Article 8 right to privacy of family life and the home, the siblings argued that their deportation to Pakistan would break their strong ties with Norway where they had lived since childhood. They argued further that their links to Pakistan were weak since their mother died in 2007 and they had not been in contact with their father since 1996.

In similar cases in front of the ECtHR, the Court deferred to the state if the petitioner had acted fraudulently. However, in Butt v. Norway the ECtHR held that the siblings could not be held responsible for the illicit conduct of their mother so long as they were unaware of their illegal status in Norway. Given these “exceptional circumstances,” the Court expanded its protection for children’s rights and held that, “exceptional circumstances” could make it necessary to put the interests of the children first, implying that a parent might need to be granted residence as well. To protect children’s rights, the Court articulated that the child’s individual circumstances must be taken into account when deciding if a child should bear the negative consequences of parental action. In this case, given that the mother had died, the Court found little possibility of future exploitation of the immigration system. Furthermore, given that the children had strong interest in staying in Norway due to their strong social ties, such as their family and obtain an education, the Court found that this satisfied the standards for “family life” and “private life” encompassed in Article 8.

Thus, Butt v. Norway expanded the principles of previous judgments regarding children’s rights protected by Article 8 under the doctrine of “exceptional circumstances” under which the rights of the individual rise above those of the State’s immigration policy needs. In this case, the Court has created new exception under “exceptional circumstances” for the protection of children even when a parent acts fraudulently in immigration proceedings. Because culpability cannot begin before a child gains knowledge, States must now consider their age and mental awareness of their immigration status. In essence, the Court has recognized that under Article 8 children cannot be legally responsible or deported based solely on the mistakes of their parents.

Future cases will prove whether the Court will fully embraces the high standard of the Butts case and acknowledge the relevance of ties with the receiving State as well as the child’s lack of knowledge about their precarious residency status. Although the essential object of Article 8 of the ECHR is to protect the individual against arbitrary action by the public authorities, Article 8 implies positive obligations inherent in effective “respect” for family life, particularly in immigration and asylum issues. This case suggests that this positive obligation requires States to pay closer attention to exceptional circumstance factors such as the extent to which family life is effectively ruptured, the extent of the child’s ties in the contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin, and whether there are factors of immigration control or considerations of public order weighing in favor of a child.

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