Portugal - Central Administrative Court South, Case No 12826/15

Country of Decision:
Country of Applicant:
Date of Decision:
10-03-2016
Citation:
Case No 12826/15 [2016] Central Administrative Court South
Court Name:
Central Administrative Court South
Keywords:
National / Other Legislative Provisions:
Portugal - Constitution of the Portuguese Republic - Article 12
Portugal - Constitution of the Portuguese Republic - Article 13
Portugal - Constitution of the Portuguese Republic - Article 15
Portugal - Constitution of the Portuguese Republic - Article 16
Portugal - Constitution of the Portuguese Republic - Article 17
Portugal - Constitution of the Portuguese Republic - Article 18
Portugal - Constitution of the Portuguese Republic - Article 26
Portugal - Constitution of the Portuguese Republic - Article 36
Portugal - Constitution of the Portuguese Republic - Article 67
Portugal - Constitution of the Portuguese Republic - Article 68
Portugal - Act No. 23/2007 of 2007 - Legal framework of entry
permanence
exit and removal of foreigners into and out of national territory - Article 98(3)
exit and removal of foreigners into and out of national territory - Article 99
exit and removal of foreigners into and out of national territory - Article 100
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Headnote: 

The concept of family life under Article 8 ECHR and under the Portuguese Constitution requires the existence of an effective connection between the individuals, which also presupposes the existence of a financial interdependency.

Facts: 

The case concerns the request for family reunification by an Iraqi refugee woman resettled to Portugal after being granted refugee status by UNHCR in 2008 when living in Syria. She had her request for family reunification with her daughter and two grandchildren rejected by the Portuguese Immigration and Borders Service (SEF) on the basis that her daughter was an adult and not dependant on her mother, while grandchildren fell outside the scope for family reunification.

Before being resettled to Portugal, the applicant was economically in charge of her daughter and grandchildren, since the daughter’s husband had been arrested in Iraq for an undetermined period. However, this was no longer the case when the request for family reunification was lodged. At that time, the applicant’s daughter was a recognised refugee and had custody of her children. Thus, the Portuguese authorities found that the applicant’s daughter had an autonomous family life.

The applicant complained before the Court that the refusal to admit her daughter and grandchildren for the purposes of family reunification violated her rights under Article 8 ECHR and the Portuguese Constitution.

Decision & Reasoning: 

The Court conducted a conformity assessment between the provisions of the Portuguese Law 23/2007 (recast) regarding family reunification and Article 8 ECHR.

Based on human rights doctrine and case-law from the ECtHR, it found that the concept of “family life” under Article 8 ECHR implies the existence – at the moment in which the conflict breaks – of an effective and strict connection between the people involved, which also presupposes the existence of a financial interdependency between them. In other words, the existence of an affective link between the applicant and her daughter could not be considered to qualify as “family life” for the purposes of reunification.

With regard to the Portuguese Constitution, the wording of its Article 67 (“Family”) Chapter II (“Social Rights and Duties”) and the jurisprudence of the Portuguese Constitutional Court also embraces the concept of family life implying the need for mutual assistance and contribution to common needs (financial interdependency).  

Outcome: 

Appeal rejected.

Case Law Cited: 

ECtHR – Family X v. the UK, Application No. 9492/81, 14 July 1982

ECtHR - X v. Switzerland, Application No. 8924/80, 10 March 1981

Portugal: Case No 121/2010, Constitutional Court