Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) , 1953.

1. Family Reunification of TCNs - relation of European Court of Human Rights jurisprudence to the development of EU migration law and policy Mubilanzila Mayeka and Kaniki Mitunga vs Belgium [2006] case study Ivana Kordić EU MIGRATION LAW AND POLICY 2013./14.

2. Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 1953. (Belgian ratification in 1955.) European Court of Human Rights (ECtHR)

3. Is the right to move freely a fundamental right? Whom does it apply to?

4. Fundamental Rights and ECHR in ECJ case law NOLD [4/73] As the Court has already stated, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. In safeguarding these rights, the court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the constitutions of those states Similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of community law. Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary [222/84] The requirement of judicial control stipulated by that article reflects a general principle of law which underlies the constitutional traditions common to the Member States. That principle is also laid down in articles 6 and 13 of the European Convention for the Protection of Human Rights And Fundamental Freedoms of 4 November 1950. As the European Parliament, Council and Commission recognized in their joint Declaration of 5 April 1977 ( Official Journal c 103 , p. 1) and as the Court has recognized in its decisions, the principles on which that Convention is based must be taken into consideration in community law . .

5. Fundamental Rights and ECHR in ECJ case law Elliniki Radiophonia Tiléorassi [260/89] With regard to Article 10 of the European Convention on Human Rights, referred to in the ninth and tenth questions, it must first be pointed out that, as the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. For that purpose the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories (see, in particular, the judgment in Case C-4/73 Nold v Commission [1974] ECR 491, paragraph 13). The European Convention on Human Rights has special significance in that respect (see in particular Case C-222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18). It follows that, as the Court held in its judgment in Case C-5/88 Wachauf v Federal Republic of Germany [1989] ECR 2609, paragraph 19, the Community cannot accept measures which are incompatible with observance of the human rights thus recognized and guaranteed. .

6. Fundamental Rights and ECHR in ECJ case law J. McB. v L. E.. [400/10] Moreover, it follows from Article 52(3) of the Charter that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, their meaning and scope are to be the same as those laid down by the ECHR. However, that provision does not preclude the grant of wider protection by European Union law. Under Article 7 of the Charter, ‘[e]veryone has the right to respect for his or her private and family life, home and communications’. The wording of Article 8(1) of the ECHR is identical to that of the said Article 7, except that it uses the expression ‘correspondence’ instead of ‘communications’. That being so, it is clear that the said Article 7 contains rights corresponding to those guaranteed by Article 8(1) of the ECHR. Article 7 of the Charter must therefore be given the same meaning and the same scope as Article 8(1) of the ECHR, as interpreted by the case-law of the European Court of Human Rights (see, by analogy, Case C‑450/06 Varec [2008] ECR I‑581, paragraph 48). .

7. Case of Mubilanzila Mayeka and Kaniki Mitunga vs Belgium, 2006. Charter of Fundamental Rights (2009): Article 4 -Prohibition of torture and inhuman or degrading treatment or punishment Article 6 - Right to liberty and security Article 7 -Respect for private and family life ECHR (1953): Article 3 - Prohibition of torture Article 5 - Right to liberty and security Article 8 - Right to respect for private and family life

8. Right to respect for private and family life ECHR, Article 8: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Charter of Fundamental Rights, Article 7: Everyone has the right to respect for his or her private and family life, home and communications.

9. Level of protection Charter of Fundamental Rights Level of protection, Article 53: Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions. EXPLANATIONS (*) RELATING TO THE CHARTER OF FUNDAMENTAL RIGHTS Explanation on Article 7 — Respect for private and family life The rights guaranteed in Article 7 correspond to those guaranteed by Article 8 of the ECHR. To take account of developments in technology the word ‘correspondence’ has been replaced by ‘communications'. In accordance with Article 52(3), the meaning and scope of this right are the same as those of the corresponding article of the ECHR. Consequently, the limitations which may legitimately be imposed on this right are the same as those allowed by Article 8 of the ECHR.

10. Case of Mubilanzila Mayeka and Kaniki Mitunga vs Belgium, 2006.

11. Case of Mubilanzila Mayeka and Kaniki Mitunga vs Belgium, 2006. Applicants: Ms Pulcherie Mubilanzila Mayeka (1970.) and her daughter, Miss Tabitha Kaniki Mitunga (1997.), two Congolese nationals residing in Canada. Timeline:

12. Case of Mubilanzila Mayeka and Kaniki Mitunga vs Belgium, 2006. DETENTION In accordance with the law 78.  The Court observes that the detention was based on section 74/5 of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 and was therefore in accordance with the law. Legitimate aim 79.  The second defendant was detained under the authorities’ powers to control the entry and residence of aliens on the territory of the Belgian State. The decision to detain could have been in the interests of national security or the economic well-being of the country or, just as equally, for the prevention of disorder or crime. The Court therefore concludes that the interference pursued a legitimate aim for the purposes of the second paragraph of Article 8 of the Convention. Necessary in a democratic society (I) 80.  In order to determine whether the impugned measures were “necessary in a democratic society”, the Court will examine, in the light of the case as a whole, whether the detention was necessary in a democratic society, that is to say, whether it was justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued [...]. The Court’s task here is to determine whether the second applicant’s detention struck a fair balance between the competing interests in the case.

13. Case of Mubilanzila Mayeka and Kaniki Mitunga vs Belgium, 2006. Necessary in a democratic society (II) 83. [...], in the absence of any risk of the second applicant’s seeking to evade the supervision of the Belgian authorities, her detention in a closed centre for adults was unnecessary. Other measures could have been taken that would have been more conducive to the higher interest of the child guaranteed by Article 3 of the Convention on the Rights of the Child. These included her placement in a specialised centre or with foster parents. Indeed, these alternatives had in fact been proposed by the second applicant’s counsel. DEPORTATION 90. [...], the Belgian State had positive obligations in the instant case, including an obligation to take care of the second applicant and to facilitate the applicants’ reunification (see paragraph 85 above). By deporting the second applicant, the authorities did not assist their reunification (see paragraph 82 above). Nor did they ensure that the second applicant would in fact be looked after in Kinshasa (see paragraph 67 above). In these circumstances, the Court considers that the Belgian State failed to comply with its positive obligations and interfered with the applicants’ right to respect for their family life to a disproportionate degree.

14. Case of Mubilanzila Mayeka and Kaniki Mitunga vs Belgium, 2006 Execution of Judgement Even before the Court reached the judgment, legislation had been introduced in Belgium related to rights and procedures regarding the status of foreign minors: (1) The financial planning Act (24 December 2002) provided for the appointment of a guardian and for the minor to be taken into care, and (2) The measure of the Cabinet, approved in principle, intended to prohibit the detention in a closed centre of unaccompanied foreign minors arrested at the border (19 May 2006). However... Case Kanagaratnam and others v. Belgium: 2011.

15. European Parliament Activity Civil Liberties Committee (LIBE Committee) of the European Parliament – visit to the closed detention centres in Belgium (as well as France, Spain, Italy) in 2013. Report available @: www.aedh.eu/3-Rapport-de-la-delegation-de-la.html

16. Thank you! • :)