Community law immigration rights, unmarried partnerships and the relationship between European Court of Human Rights jurisprudence and community law in the Court of Justice

Abstract:

This article examines the relationship between Article 8 of the European Convention on Human Rights and Community law concerning immigration rights of Member State Nationals and their family members, particularly Third Country Nationals. It examines the particular position of unmarried partners, both same-sex and opposite-sex, and whether the concept of respect for family and private life in Article 8 ECHR could be used to support suggestions that Community Law, and Member States implementing it, should develop immigration rights for unmarried partners. The jurisprudence of European Court of Human Rights relating to Article 8 is not entirely favourable to such a view, but the assumptions underlying this jurisprudence are not easily adapted to Community Law. A distinctive understanding of what respect for family and private life requires in the context of Community migration law may be necessary, and could be argued to require the admission of unmarried partners of migrant Member State Nationals. However, the prospects of such an understanding being effectively developed by the Community legislative Institutions or the Court of Justice are at best uncertain