Playing for Time: Temporary Status, Migration Control and the Human Rights of Forced Migrants to Family Reunification

Abstract The article analyzes a set of cases in front of the European Court of Human Rights in which forced migrants challenged restrictions to family reunification in human rights law. These restrictions were largely justified by States through the temporary nature of the sponsor’s migration status. Taking this argument as a starting point, the article brings legal analysis into conversation with normative theory to disentangle the relationship between migration status, temporality, and the human right to family life. It reconstructs what role the sponsor’s membership interests play in the assessment of their interest in family reunification under the ECHR. Then it is shown that membership is largely defined by reference to the temporal qualifications of a stay made by migration status. While the temporary nature of one’s stay entails an argument for exclusion, a permanent stay entails an argument for inclusion. However, the case of refugees shows that rights are also extended based on the prediction that a stay is likely permanent. This prediction is made in the form of migration status. The article then explores avenues for contesting the presumption of temporariness made by temporary status in human rights law. While temporariness can be challenged retrospectively based on other notions of membership than migration status such as ties and the length of stay, it is structurally difficult to challenge in its prospective dimension. This gap between the prospective prescription of temporariness through migration status and the retrospective claim to inclusion through human rights allows States to significantly delay interests in family reunification, gaining weight through temporary status.