REMEMBRANCE IN TIME - Index of

Gregory MOUANGA: Europe - United in Freedom and Diversity? 485
The case Cabalesaffected the British government and Mrs.Cabales who has married her
Philippine husband under Philippine law. The immigration authorities doubted the
effectiveness of the marriage under Philippine law and not until several years later her
husband could entry with a visa and the marriage could be consummated under British
law. In these cases the European Court of Human rights asserts that the term “family”
under article 8 approves a marital relationship - a marital relationship which does not
necessarily imply a common household as a condition for a “family life”. Other facts like
the plan of living together the duration of a relationship or a child in-common could
prospectively open the scope of the article. 10
Apart from that, a distinction between marital relationship and a fictitious marriage is
indispensable. That kind of marriage which is formally closed but without a will on a
relationship is not protected under term of “family life” in article 8 ECHR. Obviously,
the problem lies in the proof of evidence. For state institutions a fictitious marriage is
hard to prove and according to this there are not many cases of fictitious marital
relationships where a “family life” was denied. 11
But not only marital relationships can open the scope of application of article 8, which
leads me to the second constellation of family concepts, namely “Non-marital
relationships”.
According to the European Court of Human Rights, non-marital relationships could
also demonstrate a “family life”.
An example of that is the case of Johnston 12 , in whichthe Court decidedthat the term
family is not restricted to marital relationships. A family could also exist in a non-marital
relationship when a de facto “family” outside of marriage may be given.
However, in that constellation the duration of the relationship, a common household, a
child in common or other circumstances are playing a more important role. The level of
protection of article 8 seems to depend on the intensity of the relationship. 13
This was the decisive factor in the case of Gorman 14 , a British man, who was allied to a
Nigerian woman during his job in Nigeria. After he left, Gorman supported her and they
frequently met in France or Nigeria. A meeting in the United Kingdom was not possible
given that the immigration authorities denied a tourism visa. 15
The commission left it open if that kind of relationship already fulfills a non-marital
relationship and opened the scope of article 8. If engagement already fulfills a level of
protection in article 8 as a non-marital relationship is also not really clear.
10 Sander (2008), Der Schutz des Aufenthalts durch Artikel 8 der Europäischen
Menschenrechtskonvention, Duncker& Humblot, p. 52 et seq..
11 Sander (2008), Der Schutz des Aufenthalts durch Artikel 8 der Europäischen
Menschenrechtskonvention, Duncker& Humblot, p. 55 et seq.
12 ECHR, date of judgment 18.12.1986,Application No: 9697/82.
13 Sander (2008), Der Schutz des Aufenthalts durch Artikel 8 der Europäischen
Menschenrechtskonvention, Duncker& Humblot, p. 52 et seq..
14 European Commission of Human Rights, date of judgment 9.4.1997, no. 32339/96.
15 Sander (2008), Der Schutz des Aufenthalts durch Artikel 8 der Europäischen
Menschenrechtskonvention, Duncker& Humblot, p. 62.