© Koninklijke Brill NV, Leiden, 2009 DOI: 10.1163/138836409X12469435402855
European Journal of Migration and Law 11 (2009) 271–293 brill.nl/emil
Structural Instability: Strasbourg Case Law on
Children’s Family Reunion
omas Spijkerboer*
Professor of Migration Law, VU University Amsterdam, e Netherlands
Abstract
In this article, the case law of the European Court of Human Rights on children’s family reunion is exam-
ined. e argument is that the Court’s case law is necessarily inconsistent. is is so in part as a conse-
quence of the structure of international legal argument, and partly as a consequence of the seeming
normative conflict about the legitimacy of migration control. On both points, the Court is torn between
two equally legitimate and equally untenable extremes, which forces the Court to take a centrist position
and to acknowledge both the legitimacy and the untenable nature of the extremes. e main part of the
article analyses how this takes shape in the legal technicalities in the judgements under review.
Keywords
family reunion; family life; Article 8 ECHR; critical legal theory
Introduction
is article concerns Strasbourg judgments about children who seek admission to
a European country in order to be reunited with parents. As many have noted,
case law of the European Court of Human Rights on this point is inconsistent.
Instead of suggesting ways to make case law more consistent, I will try to eluci-
date why the Court’s case law is inconsistent. e argument is that the Court is
confronted with two tensions: communitarian versus cosmopolitan views on the
regulation of migration, and ascending versus descending perspectives on interna-
tional law. Each extreme represents a legitimate position which can be criticised
from the other side. is makes the Court’s case law structurally unstable. e
main part of this article will outline how, at the level of legal technicalities, the
Court copes with the structural instability of its case law. If this analysis is correct,
this has implications beyond merely Strasbourg case law. e European Court of
Human Rights is not just any court. It is a prominent court, staffed by prominent
judges and its judgments are of high impact and quality. e idea behind this
*
)
I thank the participants of the seminar held at VU University Amsterdam on April 17, 2009, and
Karin de Vries in particular, for their critical comments on an earlier version of this text. I thank Frances
Gilligan for her editorial assistance.
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