Populism, Exceptionality and the Right of Migrants to Family Life under the European Convention on Human Rights

The populist turn in national and international politics includes one common question across countries: curbing immigration and limiting the rights of migrants. In the light of these restrictive tendencies, the questions that this paper seeks to address are: whether and how the European Convention on Human Rights (ECHR), as interpreted by the European Court of Human Rights (ECtHR), can be a point of resistance against populism? How has the ECtHR responded to the nationalist dimension of the populist turn when adjudicating cases implicating the rights of migrants (with focus on the right to family life)? How has the Court managed to maintain its standing in the sensitive area of migration? I acknowledge that the Court has offered a space where the state has to advance reasoned arguments to justify disruptions of family life in pursuit of immigration control objectives. At the same time, however, I also demonstrate that this space does not reflect the rigor of scrutiny as we generally know it in human rights law (i.e. the proportionality reasoning with its distinctive subtests). The Court acts with restraint; it sides with the sovereign and, therefore, any populist attacks (e.g. robbing ‘the people’ of their sovereignty) against the Court are unsubstantiated. I also air a note of caution for the Court itself. More specifically, in its restraint to exercise resistance against the sovereign, the Court is dangerously getting close to utilizing populist tools (e.g. assuming that there is a necessary conflict between the right of the individual migrant and the interests of the host community; not requiring the state to clearly articulate its aims beyond general and abstract invocation of immigration control prerogatives; not subjecting the aim pursued by the state to any rational or factual scrutiny; representing the rights of migrants as an exception by applying the ‘most exceptional circumstances’ test). Finally, I explain the ‘procedural turn’ taken by the Court when adjudicating the right to family life of migrants. While I acknowledge that this is a useful tool for the Court to maintain its standing in the sensitive area of migration, I also indicate the dangers that might emerge from its application.