Down to the Minimum: An analysis of the family reunification rights under the Temporary Law

Sammanfattning: In July 2016, the Law on temporary limitations to the possibility of being granted residence permit in Sweden (the Temporary Law) came into force. The Temporary Law implied a sharp turn in Swedish asylum legislation. The right to family reunification, which previously had been granted subsidiary protection beneficiaries and refugees on a similar basis, was suddenly heavily restricted for beneficiaries of subsidiary protection. The government claimed that the changes corresponded to the minimum requirements of EU-law and international law. The Temporary Law did however become an object of major criticism, and the critique primarily concerned the restrictions’ potential conflict with rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR). This thesis examines if the Temporary Law restrictions on the right to family reunification for subsidiary protection beneficiaries were in compliance with the requirements under Articles 8 and 14 ECHR. The restrictions are hereby examined in relation to the right to respect for family life and the prohibition of discrimination. The analysis identifies a number of issues regarding the compatibility with Articles 8 and 14 ECHR. The particular vulnerability of subsidiary protection beneficiaries, which is linked to a presumed right to family reunification under Article 8 ECHR, was not recognised by the Temporary Law. Furthermore, the procedural obligations under Article 8 ECHR were arguably not fulfilled by the Temporary Law. The examination additionally concludes that the Temporary Law restrictions violated the prohibition of discrimination under Article 14 ECHR in conjunction with Article 8 ECHR. Considering that subsidiary protection beneficiaries and refugees are in a relevantly similar situation for the purpose of family reunification, the government failed to provide a reasonable and objective justification for the Temporary Law's differential treatment. In sum, this thesis suggests that the Temporary Law restrictions failed to meet the minimum level of protection under the ECHR. Accordingly, the Temporary Law not merely adjusted the right to family reunification down to the minimum of EU-law and international law, the Temporary Law fell below the minimum and hereby failed to comply with the obligations under Articles 8 and 14 ECHR. The failure to meet the minimum standards of the ECHR could be explained by the influential role of the immigration control prerogative in the context of human rights protection of immigrants.