Article 8 ECHR and the ‘temporary turn’ in European asylum policies

In response to the relatively high numbers of refugee claimants in 2015, European countries have introduced restrictive policies aimed at deterring future arrivals. In addition to border controls and safe third country agreements, measures have included the mandated cessation of refugee status when the need for protection ends, sharpened conditions for permanent residence and barriers to family reunification. Through an analysis of relevant Strasbourg jurisprudence, we examine how these policies, part of a ‘temporary turn’ in asylum, interact with refugees’ right to private and family life under Article 8 ECHR. We show that attachments developed between refugees and their countries of asylum are systematically devalued by three factors related to the wide margin of appreciation granted to states in these cases: (1) the acceptance of differential treatment of various refugee groups, (2) the formalistic distinction between ‘settled’ and ‘precarious’ migrants and (3) the limited weight given to children's best interests. We conclude that the European Court of Human Rights’ approach contributes to long-term uncertainty for refugees and their descendants in tension not only with the solutions orientation of international refugee law, but also with human rights law principles of legal certainty and effective protection.