Beyond Static Interests: Asylum Seekers as Contributors to the Economic Well-Being of a Country

Abstract

This article assesses the practice of the ECtHR to rigidly define the interests of asylum seekers and the public under Article 8 ECHR as by default competing, independent and predetermined spheres. We refer to this phenomenon as ‘balancing static interests’ and argue, using recent developments in Austria as a starting point, that it produces results that serve neither the public nor the individual. The article engages with the current state of the debate on improving the Court’s adjudication and analyses the case-law on asylum seekers subject to migration control. On this basis, it argues that establishing an intermediate standard of proof for justifying State (in)action which harnesses the Court’s increased reliance on procedural review could overcome an overly static approach. Such a path would not only allow a richer balancing exercise but crucially also challenge overly dichotomous views on the relationship between the rights of asylum seekers and state interests.