Beyond Decisions About a Child and Decisions Affecting a Child in Deportation Cases
In: The International Journal of Children's RightsSearch for other papers by Jonathan Collinson in
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Abstract
Who should be central to the determination of deportation decisions: parent or child? The state claims an interest in enforcing immigration control by removing the adult. The child, on the other hand, has an interest in maintaining their relationships with both of their parents, as well as the practical and cultural benefits of growing up in the country of their nationality or habitual residence. How to decide between these competing claims is of practical and theoretical importance in human rights determinations under Article 8 echr and Article 3 uncrc. This article investigates the theoretical distinction which is drawn between decisions about a child and decisions affecting a child, and argues that this approach is problematic. First, Article 8 echr is an incomplete vehicle for determining the best interests of the child. Secondly, it reinforces the ‘problematic logical inversion’ found in the European Court of Human Right’s migration jurisprudence.
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-
Bhabha, J., “The “Mere Fortuity” of Birth? Are Children Citizens?”, differences: A Journal of Feminist Cultural Studies 2004 (15(2)) 91–117. doi: 10.1215/10407391-15-2-91.
-
Bhabha, J., “‘Not a Sack of Potatoes’: Moving and Removing Children Across Borders”, Public Interest Law Journal 2006 (15(2)) 197–207.
-
Biesta, G., Learning Democracy in School and Society: Education, Lifelong Learning, and the Politics of Citizenship (Rotterdam: Sense Publishers, 2011).
-
Bloch, A., Sigona, N. and Zetter, R., Sans Papiers: The Social and Economic Lives of Young Undocumented Migrants (London: Pluto Press, 2014).
-
Choudhry, S. and Fenwick, H., “Taking the Rights of Parents and Children Seriously: Confronting the Welfare Principle Under the Human Rights Act”, Oxford Journal of Legal Studies 2005 (25(3)) 453–492. doi: 10.1093/ojls/gqi023.
-
Cohen-Eliya, M. and Porat, I., “Proportionality and the Culture of Justification”, American Journal of Comparative Law 2011 (59(2)) 463–490. doi: 10.5131/AJCL.2010.0018.
-
Committee on the Rights of the Child, General Comment No. 14: The Right of the Child to Have his or her Best Interests Taken as a Primary Consideration, un Doc crc/c/gc/14 (29 May 2013).
-
Collinson, J., “Disciplining the Troublesome Offspring of Section 19 of the Immigration Act 2014: The Supreme Court in ko (Nigeria)”, Journal of Immigration, Asylum and Nationality Law (33(1)) 8–26.
-
Collinson, J., “Making the Best Interests of the Child a Substantive Human Right at the Centre of National Level Expulsion Decisions”, Netherlands Quarterly of Human Rights 2020 (38(3)) 169–190. doi: 10.1177/0924051920940167.
-
Crown Prosecution Service (cps), “Extradition” (12 May 2020): https://www.cps.gov.uk/legal-guidance/extradition. Accessed 15 August 2020.
-
deKinderombudsman, “Waiting for your future: Advisory report on the position of and eligibility criteria for foreign children” (8 March 2012): https://www.dekinderombudsman.nl/system/files/inline/2012Advisoryreportonthepositionofforeignchildrenandtheadmissioncriteria.pdf. Accessed 3 June 2021.
-
Dembour, M., When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford: OUP, 2015).
-
Eekelaar, J., “The Role of the Best Interests Principle in Decisions Affecting Children and Decisions About Children”, The International Journal of Children’s Rights 2015 (23(1)) 3–26. doi: 10.1163/15718182-02301003.
-
Eekelaar, J., “Two Dimensions of the Best Interests Principle: Decisions about Children and Decisions affecting Children”, in E. Sutherland and L. Barnes Macfarlane (eds.), Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-Being (Cambirdge: Cambridge University Press, 2016).
-
Harris-Short, S., Miles, J. and George, R., Family Law: Text, Cases, and Materials (3rd edn.) (Oxford: Oxford University Press, 2011).
-
Jacobsen, A. F., “Children’s Rights in the European Court of Human Rights – An Emerging Power Structure”, The International Journal of Children’s Rights 2016 (24(3)) 548–574. doi: 10.1163/15718182-02403003.
-
Kalverboer, M., Beltman, D., van Os, C., Zijlstra, E., “The Best Interests of the Child in Cases of Migration: Assessing and Determining the Best Interests of the Child in Migration Procedures”, The International Journal of Children’s Rights 2017 (25(1)) 114–139. doi: 10.1163/15718182-02501005.
-
Kilkelly, U., “Protecting Children’s Rights Under the echr: The Role of Positive Obligations”, Northern Ireland Legal Quarterly 2010 (61(3)) 245–261.
-
Kilkelly, U., “The Best Interests of the Child: A Gateway to Children’s Rights?”, in E. Sutherland and L. Barnes Macfarlane (eds.), Implementing Article 3 of the United Nations Convention on the Rights of the Child (Cambridge: Cambridge University Press, 2016).
-
Klaassen, M,. “Between Facts and Norms: Testing Compliance With Article 8 echr in Immigration Cases”, Netherlands Quarterly of Human Rights 2019 (37(2)) 157–177. doi: 10.1177/0924051919844387.
-
Leloup, M., “The Principle of the Best Interests of the Child in the Expulsion Case Law of the European Court of Human Rights: Procedural Rationality as a Remedy for Inconsistency”, Netherlands Quarterly of Human Rights 2019 (37(1)) 50–68. doi: 10.1177/0924051918820986.
-
Netherlands’ Ombudsman for Children, ‘Waiting For Your Future: Advisory Report on the Position Of and Eligibility Criteria for Foreign Children’ (8 March 2012): https://www.dekinderombudsman.nl/system/files/inline/2012Advisoryreportonthepositionofforeignchildrenandtheadmissioncriteria.pdf. Accessed 20 April 2020.
-
Pirker, B., Proportionality Analysis and Models of Judicial Review: A Theoretical and Comparative Study (Groningen: Europa Law Publishing, 2013).
-
Pobjoy, J., “The Best Interests of the Child Principle as an Independent Source of International Protection”, International and Comparative Law Quarterly 2015 (64(2)) 327–363. doi: 10.1017/S0020589315000044.
-
Pulido, C. B., “The Migration of Proportionality Across Europe”, New Zealand Journal of Public International Law 2013 (11(3)) 483–515.
-
Smyth, C., “The Best Interests of the Child in the Expulsion and First-Entry Jurisprudence of the European Court of Human Rights: How Principled Is the Court’s Use of the Principle”, European Journal of Migration and Law 2015 (17(1)) 70–103. DOI: 10.1163/15718166-12342072.
-
Sormunen, M., “Understanding the Best Interests of the Child as a Procedural Obligation: The Example of the European Court of Human Rights”, Human Rights Law Review 2020 (20(4)) 745–768. doi: 10.1093/hrlr/ngaa034.
-
Steinorth, C., “Üner v The Netherlands: Expulsion of Long-Term Immigrants and the Right to Respect for Private and Family Life”, Human Rights Law Review 2008 (8(1)) 185–196. doi: 10.1093/hrlr/ngm043.
-
unicef, Implementation Handbook for the Convention on the Rights of the Child (3rd edn.) (2007): https://www.unicef.org/publications/files/Implementation_Handbook_for_the_Convention_on_the_Rights_of_the_Child_Part_1_of_3.pdf. Accessed 20 April 2020.
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Beyond Decisions About a Child and Decisions Affecting a Child in Deportation Cases
In: The International Journal of Children's RightsSearch for other papers by Jonathan Collinson in
Current site
Google Scholar
PubMed
Abstract
Who should be central to the determination of deportation decisions: parent or child? The state claims an interest in enforcing immigration control by removing the adult. The child, on the other hand, has an interest in maintaining their relationships with both of their parents, as well as the practical and cultural benefits of growing up in the country of their nationality or habitual residence. How to decide between these competing claims is of practical and theoretical importance in human rights determinations under Article 8 echr and Article 3 uncrc. This article investigates the theoretical distinction which is drawn between decisions about a child and decisions affecting a child, and argues that this approach is problematic. First, Article 8 echr is an incomplete vehicle for determining the best interests of the child. Secondly, it reinforces the ‘problematic logical inversion’ found in the European Court of Human Right’s migration jurisprudence.
| All Time | Past 365 days | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 569 | 170 | 8 |
| Full Text Views | 68 | 11 | 0 |
| PDF Views & Downloads | 163 | 23 | 0 |