Summary

The right to respect for private and family life is a fundamental right recognised both by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Estonian Constitution. However, the exercise of this fundamental right may prove impossible if a state, relying on international law, prohibits an alien from entering the state or staying therein, or prohibits the exilement of an alien from the state.
In order to surpass the possible conflicts between the two principles, the European Court of Human Rights has adopted a multi-level checking system in which, first, it is checked whether a measure taken by the state interferes with family life and, thereafter, whether such interference is justified.
The author gives an overview of the judicial practice in Strasbourg in ensuring the inviolability of the family life of aliens. The author examines judgments on the choice of residence of spouses who are aliens, and on excilement of divorced parents or parents who have separated and of integrated aliens, as well as judgments permitting aliens to enter a state in order to join their family. Focusing on judgments of the Estonian Supreme Court rendered in issues concerning interference with the family life of aliens, the author stresses that, in addition to establishing interference with family life, the Estonian courts should also analyse whether the measure in question is necessary in a democratic society, whether there is a compelling social need therefor or whether the state has the positive duty to protect family life in a given case.