IMMIGRATION AND THE RIGHT TO RESPECT FOR FAMILY LIFE BETWEEN ADULT CHILD AND ELDERLY FOREIGN PARENT FOR PURPOSES OF REUNIFICATION Senchishak v Finland (Application No 5049/12 ECtHR of 18 November 2014)

Abstract

In regard to immigration matters a distinction can be drawn between a decision refusing admission to a state of a family member for reunification purposes and one ordering deportation of a family member or relative already resident in such state. In European context, applicants who are refused admission or who are deported, often argue that such decisions interfere with their right to respect for family and private life in terms of article 8 of the European Convention of Human Rights. The question to be answered is whether a fair balance has been struck between the applicant’s interest and the public interest in deportation or exclusion. This case discussion reflects on the restrictive interpretation of “family life” within the context of article 8 by the European Court of Human Rights, and the way in which the ”dependency” criterion is narrowly construed in applications for permanent residence by an elderly foreign parent for purposes of reunification with an adult child. The provisions of the Immigration Act 13 of 2002 as well as the Regulations are investigated to get some understanding of how similar applications are dealt with in terms of South African Immigration law. Although contentious, it is suggested that even though a broader understanding of “family/relative” and the concept of “dependency” exists, less emphasis must be afforded to the ability of the South African resident to maintain the parent financially. It is submitted that this requirement should not effectively sideline emotional ties and affection between the parties. Emphasis is placed on ensuring a human-rights-based culture of enforcement in immigration control as envisaged by the Immigration Act.