REMEMBRANCE IN TIME - Index of

484
Remembrance in Time
Forced resettlements were the expression of a totalitarian system in the USSR. It was an
instrument to penalize lateral thinker and persons who were not conform to the soviet
system.
Those individuals were labeled as “suspicious elements” and taken out of their families
and personal environment. 4
Due to this background, Article 8 of the ECHR can be seen in the light of a fundamental
right on family life which protects individuals from state interventions connected to
migration or repressive movements. Nowadays especially for the right of residence,
Article 8 established scope for marital and non-marital relationships and families. While
the number of Immigration and applications for asylum has significantly increased during
the end of the eighties, many states and governments have tightened their rules for
residence and asylum policies.
The respect for family life in article 8 is given to individuals without defining the object
of legal protection itself. Obviously the principle of article 8 needs to be interpreted sui
generis. But the Commission and the European Court of Human Rights has already given
substance to an open or abstract legal concept in article 8 by decades of jurisprudence in
that matter. 5
Article 8 of the ECHR applies where families and family structures are adversely
affected by state measures and might provide a protection of “family life” concerning
residence permit creating a new legal situation for individuals.
The jurisprudence of article 8 on family-constellations
For this reason, it is necessary to have a view on the jurisprudence and its definition of
“family life” according to three different concepts of relationships, namely marital
relationships, Non-marital relationships and Parent-child relationships.
The first constellation, the marital relationship between husband and wife, is an
undeniable case of “family life”. Decisions of cases like Abdulaziz 6 , Cabales 7 or
Balkandali 8 define the main features of family life.
The cases of Abdulaziz and Balkandali affected two women who have married their
foreign husbands in Great Britain. After the marriage both husbands applied for a
residence permit which was refused by state institutions. State authorities argued that
there exists no “family life” and no reason for a residence permit if they did not have a
common household before. 9
4 Nozhenko (2010), Focus Migration - Länderprofil 20: „Russische Föderation“ (ISSN 1864-
6220), Hamburgisches WeltWirtschaftsInstitut (Hrsg.), p. 2.
5 Sander (2008), Der Schutz des Aufenthalts durch Artikel 8 der Europäischen
Menschenrechtskonvention, Duncker& Humblot, p. 51.
6 ECHR, date of judgment 28.5.1985, Application No: 9214/80.
7 ECHR, date of judgment 28.5.1985,Application No: 9473/81.
8 ECHR, date of judgment 28.5.1985,Application No: 9474/81.
9 Sander (2008), Der Schutz des Aufenthalts durch Artikel 8 der Europäischen
Menschenrechtskonvention, Duncker& Humblot, p. 52 et seqq., et seqq..