The Soering reshold: Why Only Fundamental Values Prohibit Refoulement in ECHR Case Law

in European Journal of Migration and Law
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Abstract

According to ECHR case-law, the Convention prohibits expulsion if violations of Articles 2 and 3 are risked upon return. Feared violations of other rights such as the freedom of religion do normally not prohibit expulsion. This article explores how the Court delimits violations that prohibit expulsion from those that do not, and which reasons the Court has put forward for justifying this distinction. It focuses on the consistency in the Court's reasoning. It is submitted that balancing human rights to inter alia the economic well-being of the Contacting states determines the outcome of expulsion cases, although this balancing is in many cases invisible, and that this balancing test rests upon the relevance of the alien status of those who invoke the prohibition on expulsion, although this relevance has not been substantiated in the case-law.

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