I am delighted to post an analysis of the Court's recent judgment in Pajić v Croatia by Loveday Hodson (University of Leicester). Dr. Hodson explores why the judgment, although less likely to create the "normative waves" of other recent judgments, is important for the "hard work" it does in "detailing the nature of States' positive obligations under the Convention with respect to same-sex couples".
Family Beyond Borders: Pajić v Croatia
The Second Section of the European Court of Human Rights (ECtHR) this week issued another important judgment on sexual orientation discrimination in the area of family life, specifically addressing the rights of bi-national couples to family reunification.
The applicant in Pajić v Croatia was a national and resident of Bosnia and Herzegovina. In 2011 she applied for a residence permit in order to join her female partner in Croatia, a country in which she had previously studied and resided for 17 years. At the time. same-sex couples were not recognised under the relevant national laws and her application was summarily dismissed. Her subsequent appeals to the Zagreb Administrative Court and then the Constitutional Court on the basis that the relevant Aliens Act and Family Act were discriminatory in so far as they did not extend family reunification to same-sex couples were no more successful. This led her to Strasbourg.
In her complaint to the ECtHR, Ms Pajić alleged a violation of Article 8 in conjunction with Article 14. The particular discrimination she complained of was that same-sex couples were excluded from the right to family reunification granted to unmarried different-sex couples under the Aliens Act. Despite rapid developments in the Court’s case-law on sexual orientation discrimination, the Government was intransigent. It argued that determining the scope and treatment of family and private life were matters within the State’s Margin of Appreciation, and further that States enjoyed a wide Margin of Appreciation in immigration matters. The Convention, it went on to argue, does not guarantee the right to family reunification. The government finally tried to place the applicant in a classic Catch 22 situation, arguing - one assumes with a straight face - that she had failed to establish family life, as she and her partner had not co-habited for any significant length of time.
So how did the Court respond to these opposing claims? In relation to Article 8, the Court reaffirmed its relatively recent position that same-sex couples are not excluded from the ambit of the Convention’s family life (Shalk and Kopf Austria, para 91). It also restated that cohabiting is not a pre-requisite of establishing family life (Vallianatos & Ors v Greece, para 73). So far as the Court was concerned, the case fell both under private and family life limbs of Article 8: it was the State’s immigration laws preventing cohabitation, and this should not leave the applicant outside of the scope of ‘family life’.
The Court next considered whether in this case there had been a difference in treatment between persons in relevantly similar positions. This question was relatively straightforward to resolve in light of the Court’s recent case-law on sexual orientation discrimination. Because the Aliens Act made no provision for same-sex couples, whereas it did contain provisions relating to married and unmarried different-sex couples, the Court concluded that the Applicant had experienced a difference in treatment based on her sexual orientation.
Could the difference in treatment be justified? The Court conceded that States enjoy a wide Margin of Appreciation in matters relating to immigration. This, however, needs to be set alongside the long-recognised need for weighty reasons to justify discrimination on grounds of sexual orientation (Smith and Grady v UK, para 89). In relying solely on arguments that attempted to exclude the Court’s review, the Government had put forward no such justification and ultimately made the Court’s job rather easy: the Court held unanimously that there had been a violation of Article 8 in conjunction with Article 14.
One of the most gratifying aspects of this case is the Court’s continued confidence in advancing the family rights of LGBT people. While ground-breaking cases such as Shalk and Kopf create more normative waves, cases like this do the hard work of detailing the nature of States' positive obligations under the Convention with respect to same-sex couples.
Matters of immigration law are notoriously sensitive, but strikingly in this case the Court took little time in dismissing the Croatian Government’s sovereignty-based (Margin of Appreciation) arguments. The Court has moved a long way from the Commission’s position in C and L.M. v UK when it held that ‘although lawful deportation will have repercussions on such relationships, it cannot, in principle, be regarded as an interference with this Convention provision, given the State's right to impose immigration controls and limits’. Perhaps, in overcoming sovereignty arguments in an area in which the Court has historically been rather reluctant to intervene, it is significant that the Court turned to EU law (particularly Directive 2004/38/EC) to underpin a forward-looking stance on family reunification. How far can this influence extend to non-EU members who are party to the ECHR?
The Court’s case-law on same-sex relationship rights has developed rapidly in recent years, and this case represents a further step on that journey. The Pajić judgment further clarifies the obligations that States have with respect to unmarried same-sex couples, where unmarried opposite-sex couples enjoy better recognition and protection under the law. However, the judgment leaves untouched the thorny question of how long marriage will continue to hold a ‘special status’ for the Court. The Court has not yet required States to extend the considerable privileges of marriage to same-sex couples. This is a particularly pertinent issue in this case: while Croatia has recently introduced same-sex partnership laws, at the same time a referendum was held in which a constitutional ban on ‘gay marriage’ was approved.