PARTLY CONCURR ING OPINION OF JUDGE SPIELMANN

( Translation )

1. I share the opinion of the majority in finding a violation of Article 8 of the Convention under the heading of “private life”. However, I do not share the majority ’ s view that the applicant cannot rely on the existence of “family life” between herself and her adult son on the ground that the relationship between adult children and their parents, which does not form part of the core family, does not necessarily attract the protection of Article 8 without evidence of further elements of dependency involving more than the normal affective ties (see paragraph 67 of the judgment).

2. It is true that this very restrictive interpretation of the n otion of family life is in line – i n the specific sphere of the entry, residence and expulsion of non-nationals – with the case-law established in Slivenko (see Slivenko v. Latvia [GC], no. 48321/99, § 97 , ECHR 2003 - X ). In addition – and I am keenly aware of this – the Court found , in its partial decision of 15 February 2001 on the admissibility of the present case , that the ties between the applicant and her son did not go beyond the normal affective ties. The Court found as follows (translation) :

“In the instant case the Court notes that the second applicant was twenty-five years old when the deportation order was served on his mother, and that he has not claimed the existence of any specific ties of dependency, whether financial or other wise , between himself and his mother. It may well be that , since they have lived together continuously, the second applicant would prefer to maintain his links with his mother in Latvia . However, as the principles articulated in the Court ’ s case-law make clear, Article 8 does not guarantee a right to choose the most suitable pl ace to develop family life (see, mutatis mutandis , Ahmut v. the Netherlands , judgment of 28 November 1996, Reports of Judgments and Decisions 1996 ‑ VI, § 71). In the instant case the second applicant has not claimed the existence of any obstacle to his visiting his mother in Russia or having her visit him in Latvia on the basis of a visa, and the Court does not believe that he could develop family life with her only if she were to remain resident in Latvia .

In the circumstances, and in so far as this complaint was raised by the second applicant, it should be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention .”

3. Allowing for this , and still bearing in mind the Slivenko judgment of 9 October 2003, which I am obliged to follow, I cannot in all conscience fail to register my disagreement with this unduly restrictive approach to the notion of family life.

4. The Court has traditionally – in a wide variety of spheres, moreover – adopted a broad construction of the notion of “family life” . As far back as the Marckx case, it emphasised that “ ‘ family life ’ , within the meaning of Article 8, includes at least the ties between near relatives, for instance those between grandparents and grandchildren, since such relatives may play a considerable part in family life ” . The Court went on to conclude that “ ‘ r espect ’ for a family life so understood impl ies an obligation for the State to act in a manner calculated to allow these ties to develop normally ” (see Marckx v. Belgium , judgment of 13 June 1979 , Series A no. 31, p. 21 , § 45; see also Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 221 , ECHR 2000 ‑ VIII ).

5. By way of example I would cite the L. judgment of 1 June 2004, in which the Court accepted that family life could also exist be twee n a child and a parent who had never lived together , if other factors demonstrated that the relationship had sufficient constancy to create de facto family ties (see L. v. the Netherlands , no. 45582/99, § 36 , ECHR 2004 ‑ IV ) [1] . The Court has even gone so far as to say that “family life” can encompass de facto relationships between persons with no ties of kinship (see X , Y and Z v. the United Kingdom , judgment of 22 April 1997, Reports 1997 ‑ II, p p . 629-630 , §§ 36-37) [2] . What counts is whether there are “legal or factual elements indicating the existence of a close personal relationship ” (see L. , cited above, § 37).

6 . In the instant case the respondent Government, in the context of possible regularisation of the applicant ’ s stay, stated that a written guarantee from the applicant ’ s son would suffice as proof of the applicant ’ s lawful income (see paragraph 41 of the judgment). They thereby acknowledged, at least implicitly, the possibility of the mother being dependent on her son. The Court, in its partial decision on admissibility of 15 February 2001, noted that the applicant ’ s son had not claimed the existence of any ties of dependency with his mother. It added that, in its view, the applicant ’ s remaining in Latvia was not the only means by which her son could develop family life with her. While acknowledging that “it may well be that ... the second applicant would prefer to maintain his ties with his mother in Latvia ” , the Court, on the basis of all the se factual elements , decided not to recognise the existence of “family life”.

7. I do not subscribe to this point of view.

8. Giving precedence to the criterion of dependency to the detriment of that of normal affective ties strikes me as a very artificial approach to determining the existence of “ family life”. It seems inconceivable to me that so little importance can be attached to the affective ties between a mother and her son that they can fall outside the scope of “family life”.

9. This line of case-law which, admittedly, appears to be confined to the sphere of expulsions, greatly impoverishes the notion of “family life”.