CONCURRING OPINION OF JUDGE SERGHIDES

I agree with the majority and adopt the judgment in its entirety.

However, I wish to emphasise that in addition to its breach of Article 8 of the Convention, the Federal Supreme Court, by its judgment of 5 July 2010, violated the rule of law, one of the fundamental principles of democratic society, inherent in all the provisions of the Convention and its Protocols, and specifically mentioned in the Preamble to the Convention.

Respect for the rule of law requires that the exercise of balancing competing interests, especially in cases involving the welfare and the best interests of a child, must be thorough and well-reasoned, something which the Federal Supreme Court failed to provide in the present case.

Without a thorough and well-reasoned balancing exercise by the competent national authority it is hard to guarantee the valid, fair and effective exercise and application of the principle of proportionality, which is inherent in the Convention and is rightly described as “in a sense the alter ego of the principle of effective protection” (see Steven Greer, The Margin of Appreciation: Interpretation and Discretion under the European Convention of Human Rights, Human Rights File No, 17 (Council of Europe Publishing), Strasbourg, 2010, p. 20).

In my view, the principle of effectiveness underpins and is enshrined in all the elements of the balancing exercise, not only in the balancing test itself of assessing the interference with the right, but also in the two sides to be balanced: as regards the right, it helps to determine and protect it by making it practically effective, and regarding the interference, it helps to guarantee that the measure taken will appropriately and effectively serve the aim purs u ed. Therefore, lack of a thorough and well-reasoned balancing exercise may affect all the above elements, but even if it affects only one of them, the whole machinery of the balancing exercise may be rendered ineffective.

Another issue which I wish to highlight is the specificity of the nature of the balancing mechanism under Article 8 of the Convention where the welfare of a child is concerned.

Unlike, for example Article 2 § 2 of the Convention (concerning the right to life), where strict proportionality is employed between the measure used and the purposed pursued, no such high degree or standard of proportionality is required between the interference and the aim pursued in Article 8 § 2 of the Convention (regarding the right to respect for family life). Where strict proportionality does apply, the adjective “absolutely” or another similar term is used to describe the “necessity” of the interference. No such adjective is used in Article 8 § 2 of the Convention.

Nevertheless, where the welfare of a child is at stake and has to be assessed and balanced with an immigration restriction (as, for example, the restriction in the present case forming the basis of the Swiss authorities ’ rejection of the applicants ’ request for family reunification), the balancing test between the right and the exception under Article 8 gains particular significance, with a status, in fact, similar to that of strict proportionality.

This is because of the particular nature and importance of the welfare of the child, which must be a primary consideration, as provided by Article 3 § 1 of the United Nations Convention on the Rights of the Child of 20 November 1989. Thus, the side of the judicial scale where the child ’ s welfare is placed in support of his or her right to family life receives additional weight, and it becomes more difficult for the other side of the judicial scale, where the restriction to this right lies, to prevail.

It should be noted that the State has an inherent positive obligation to determine and protect the welfare of children in ensuring effective respect for their family life under Article 8 § 1 of the Convention. This obligation takes priority over any other obligation, since, as mentioned above, the welfare of the child is a primary consideration.

Without, obviously, going into the merits of the balancing exercise conducted by the competent national authority, I wish to stress that the finding in the judgment that there was no thorough balancing of the interests in issue, is also supported by the Federal Supreme Court ’ s failure to note and appreciate the fact that the second applicant had an underage half-sister in Switzerland, a fact which could be a relevant consideration in ensuring the welfare of the second applicant. Regard should have been had during the balancing test to whether the interference imposed would prevent the second applicant from retaining or establishing relations with her half-sister. Family life can exist between siblings (see Moustaquim v. Belgium, no. 12313/86, 18/02/1991, § 36 ; and Moustafa and Armaǧan Akin v. Turkey, no. 4694/03, 06/04/2010, § 19), but it can also exist between half-siblings. There is no information, however, on whether there were indeed actual links between the second applicant and his half-sister with whom he had a common bond, namely their father, the first applicant. However, Article 8 of the Convention applies not only when there are actual family links but also in the case of potential family relations or links that may develop (see Todorova v. Italy , no. 33932/06, 13/01/2009, §§ 51 and 53).

Finally, retaining or establishing ties between siblings or between a half ‑ brother and a half-sister, as was the case in the present application, is important for their welfare, including their psychological development and support, and States have an inherent positive obligation to respect and protect the welfare of children and take into consideration such ties or potential ties when examining the right of a child to family life, where they have to balance it with an immigration restriction.