Familjesammanhållning, en självklarhet för många barn, en omöjlighet för andra - Om rätten till familjeliv, barnets bästa och den reglerade migrationen

Sammanfattning: Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the European Con-vention) states that everyone within the jurisdiction of a Contracting State shall be guaranteed a right to family life. The meaning of the right is above all that the individual enjoys protection against interference from the public sector which may constitute a violation of the individual's right to family life. There is an interplay between the Convention and other EU legislation, international agreements and domestic law regarding the meaning and appli-cation of the right. A prerequisite for the individual to be able to receive the protection that follows from the article, is that an actual existing family life can be demonstrated. A family life consists mainly of married spouses, mi-nor children or unmarried partners living in cohabitation. According to the case law developed by the European Court of Justice, the relationship between a child and the parent is a fundamental part of family life and constitutes an independent relationship that is free from that be-tween the parents. This may be important for the assessment of whether the requirements for actually existing family life are met by the child and the child's parents when an examination of the right to protection of family life is to be made. Children generally enjoy stronger protection than adults through, among other things, provisions in the United Nations Convention on the Rights of the Child (hereinafter the Convention on the Rights of the Child) as children are considered in more need of protection than adults due to children's lack of legal capacity. The principle of the best interests of the child are which is stipulated in in Article 3 of the Convention on the Rights of the Child and Chapter 1, Section 10 of the Swedish Aliens Act (2005: 716) (hereinafter the Aliens Act) shall therefore be given great importance in administrative authorities and administrative courts when determining chil-dren's right to protection of their family life. However, the concept of the best interests of the child lacks a uniform and clear definition and is given its content only in its application and according to the circumstances of the individual case. Although the principle must be given significant value in all assessments concerning children, there are no clear guidelines for the appli-cation of the principle. The child is also guaranteed a right to be heard through art. 12 of the Convention on the Rights of the Child and Chapter 1, Section 11 of the Aliens Act According to article 8.1 The European Convention may constitute a viola-tion of the right to family life to deny entry to a family member of a person who is a citizen of a State Party. However, this right is not absolute as ex-ceptions may be made by article 8.2 European Convention. It follows from the principle of legality that exceptions may only be made if it is prescribed by law and aims to protect a legitimate purpose. According to the case law of the European Court of Justice, a legitimate interest that can be considered to consider the individual's right to family life may consist of the interest in regulated migration. Factors that can be traced to state and public security, crime prevention and migration control can be counted here. Furthermore, the reason for the restriction must be deemed necessary in a democratic so-ciety. In this respect, the principle of proportionality fulfills an important function as a balance must be struck between the state's interest in regulated migration and the individual child's right to protection of family life. The right to family life means an opportunity for the family to live together and pursue a family life in the same country. At the same time, the European Court of Justice has emphasized that each State Party receives a right to control those residing in the territory of the State, through, among other things, a requirement for a proven identity before entry. The standard of proof is high and is based on the requirements that follow from the Schengen cooperation on regulated migration. In the event that an applicant finds it difficult to prove his or her identity, the Swedish Migration Board and the higher authorities can apply a rule of evidence developed through practice, whereby the identity only needs to be made probable. Those fami-lies who want to live together where the applicant comes from a country where the identity cannot be proven by acceptable documents and the con-ditions for the application of the burden of proof rule are not met, are re-ferred to a proportionality assessment in accordance with section 13 of the Temporary Act (2016: 752) restrictions on the possibility of obtaining a resi-dence permit in Sweden (hereinafter the temporary law). In that case, a pro-portionality assessment is made with the intention of investigating whether a refusal of family reunification within the state's territory would be contrary to other Swedish convention commitments. In the assessment, both the best interests of the child and the state's interest in controlled migration are taken into account as significant factors.