Can a woman be expelled to her country of origin when she has a young child who is a national of the would-be expelling European state and her expulsion would mean child and mother are separated?
In one famous case, the European Court of Human Rights decided that the mother’s expulsion would violate the European Convention on Human Rights. It did this even though it had previously made clear that it was not ready to interpret the European Convention on Human Rights as containing the right to a residence permit.
In this case, the Convention’s doors opened up, so to speak. However, the doors quickly shut up again when the Court refused to give way to what it described as the ‘fait accompli’ of a child’s birth.
In my opinion, the case law in this area is best described as a lottery. The dice are nonetheless weighted against giving rights of residence to people whose presence in a state the law considers illegal.
If a human rights court knows that a state is going to resist a ruling of violation, should the court refrain from insisting that human rights have been violated and from ordering that the state change its ways? This episode contrasts how the Inter-American and European Courts approach this question.
(If you have problems with the embedded player use this link to listen).
Yean and Bosico (discussed in the previous episode) had no tangible positive effect on the Dominican Republic. The state flatly refused to abide by the judgment of the Inter-American Court.
One might surmise that the European system works better. However, we need to consider the relatively lax implementation that characterises it. For example, foreigners whose expulsion was found by the European Court to breach their right to family life went on to see the Committee of Ministers of the Council of Europe condoning their expulsion – admittedly not for life but only for ten years. Still ten years is a long time.
The question arises: what kind of human rights system do we want?
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