The European Court of Human Rights held that the refusal of family reunification requested by a parent in respect of minor children born of polygamous marriages did not, in the circumstances of the case, constitute a violation of Article 8 of the European Convention on Human Rights (ECHR). The case concerned a Yemeni national, who had been recognised as a refugee in the Netherlands and had applied for family reunification with his children. The Dutch authorities had granted the application in respect of the children born of his first marriage, but had refused it in respect of those born of his other marriages, who were in Türkiye at the time of the application, on account of the polygamous nature of those unions. The authorities had also suggested that family reunification could be obtained through divorce from the other wives, an option which the applicant had refused.

Before the Court, the applicant argued that the refusal of his application interfered with his right to respect for his family life guaranteed by Article 8 ECHR. In particular, he argued that polygamy could not automatically be regarded as contrary to public order and complained that the national authorities had failed adequately to assess the specific circumstances of his family situation and the best interests of his minor children. The Dutch Government, for its part, maintained that polygamy was prohibited under domestic law and that this prohibition could justify the refusal of family reunification on public-order grounds. In its view, the individual interests at stake, including those of the applicant’s children, could not prevail over the public interests underlying the relevant legislation.

The Court first recognised the existence of “family life” between the applicant and the children concerned for the purposes of Article 8 ECHR. The fact that Dutch law did not recognise polygamous marriages was not considered sufficient to exclude the relationship from the protection afforded by the Convention. The Court recalled that Article 8 protects both family relationships recognised under domestic law and those which, while not benefiting from such recognition, constitute de facto family ties. The issue of polygamy nevertheless remained relevant in the present case, since the existence of the applicant’s polygamous marriages had formed the basis for the authorities’ refusal of the family reunification application.

In assessing the interference with the applicant’s right to respect for his family life, the Court also attached importance to the fact that the applicant had refused the possibility, put forward by the Dutch authorities, of divorcing his other wives in order to obtain family reunification with the children. That circumstance had to be taken into account in the overall assessment of the circumstances of the case and of the possibility for the applicant to exercise his right to respect for his family life.

The Court therefore emphasised that Contracting States enjoy a wide margin of appreciation in determining whether and under what conditions to allow family reunification between parents and children born of polygamous marriages. Referring to its case-law, it acknowledged the close connection between immigration policies and considerations of public order. Nor are States required, under the Convention, to accord full recognition to polygamous marriages which are incompatible with their domestic legal orders.

In light of these considerations, and having regard to the specific circumstances of the applicant’s family situation, the Court found that the Dutch authorities had not overstepped the margin of appreciation afforded to them. The refusal of family reunification was therefore considered compatible with Article 8 ECHR.

 

(Comment by Bernardo Mageste Castelar Campos)