Episode 26: Can a child ever be just a ‘fait accompli’?

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.

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