Making the best interests of the child a substantive human right at the centre of national level expulsion decisions

Published date01 September 2020
Date01 September 2020
DOI10.1177/0924051920940167
Subject MatterArticles
Article
Making the best interests of the
child a substantive human right
at the centre of national level
expulsion decisions
Jonathan Collinson
University of Huddersfield, Huddersfield, UK
Abstract
The best interests of the child has become an central facet of the jurisprudence of the European
Court of Human Rights (ECtHR) in expulsion cases. This article argues that the indirect application
of the best interests of the child as an interpretive benchmark for Article 8 ECHR is not the end
point of State’s responsibilities under Article 3 UN Convention on the Rights of the Child
(UNCRC). This article argues that the ECtHR’s case law presents significant limitations in the
subject matter scope of the best interests of the child, and limitations to the way in which it
incorporates them into the Article 8 ECHR balancing exercise. This article acts as a thought
experiment by modelling an alternative mode of decision-making. It asks what the best interests of
the child might look like as the substantive human right at the centre of decisions about the
expulsion of foreign nationals.
Keywords
Expulsion, children, best interests, UNCRC, ECHR
1. INTRODUCTION
The best interests of the child has become an central facet of the jurisprudence of the European
Court of Human Rights (ECtHR) in cases concerning the expulsion
1
of foreign nationals from the
Corresponding author:
Jonathan Collinson, University of Huddersfield, Queensgate, Huddersfield HD1 3DH, UK.
E-mail: j.m.collinson@hud.ac.uk
1. UK law differentiates between ‘removal’ (the expulsion of a foreign national who has entered or remains in the UK
without legal permission to do so; s10, Immigration and Asylum Act 1999), and ‘deportation’ (the expulsion of a foreign
national – who may otherwise have legal permission to reside – whose presence is determined by the Secretary of State
Netherlands Quarterly of Human Rights
2020, Vol. 38(3) 169–190
ªThe Author(s) 2020
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DOI: 10.1177/0924051920940167
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territory of the State. The best interests of the child is routinely considered as part of the Court’s
balancing exercise when examining the right to private and family life under Article 8 of the
European Convention on Human Rights (ECHR). A growing body of literature has examined this
jurisprudence and found a lack of consistency in the ECtHR’s case law.
This article does not seek to undermine the importance of the ECtHR’s incorporation of the best
interests of the child into its case law. The best interests of the child is a preeminent part of the UN
Convention on the Rights of the Child (UNCRC), enshrined in Article 3; ‘In all actions concerning
children [ ...] the best interests of the child shall be a primary consideration’. The UN Committee
on the Rights of the Child considers the best interests of the child to be a ‘fundamental, interpretive
legal principle’.
2
The ECtHR is therefore progressive in adopting the best interests of the child as a
principle within its decision-making and norm setting functions, with respect to Article 8 ECHR in
expulsion cases. The ECtHR should be applauded for not rejecting the best interests of the child as
being inadmissible ratione materiae: the best interests of the child, after all, does not appear in the
text of the ECHR, nor is the ECtHR a party to the UNCRC.
This article does argue, however,that the indirect application of the best interests of the child as
an interpretive benchmark for Article 8 ECHR is not the end point of state’s responsibilities under
Article 3 UNCRC. Instead it takes as its starting point the UN Committee’s observation – in its
General Comment 14 – that Article 3(1) UNCRC is a ‘substantive right’ that ‘creates an intrinsic
obligation for States, is directly applicable (self-executing) and can be invoked before a court’.
3
This article acts as a thought experiment. It models what Article 3 UNCRC might look like as a
substantive human right in the expulsion context if a standard human rights methodology were
applied to its provisions.
Although this article refers frequently to UK domestic law arrangements, it is an argument
which has relevance to all Council of Europe States, as all are also States Parties to the UNCRC.
Section 2 explains and critiques the ECtHR’s approach to the best interests of the child in its
expulsion case law. It argues that the ECtHR’s case law presents significant limitations in the
subject matter scope of the best interests of the child, and limitations to the way in which it
incorporates them into the Article 8 ECHR balancing exercise. This limitation is one which the
UK Supreme Court has also encountered, and reference to this experience helps illuminate the
problems which the text of the ECHR and UNCRC throw up when applied together.
Section 3 sets out the thought experiment of treating the best interests of the child as the central
human right in expulsion cases. It works through the application of a human rights methodology. It
is a methodology which has universa l application, although it again uses UK law to explore
specific issues or examples. Section 4 presents some limitations to the analysis in this article.
This article is not intended to be a compr ehensive defence of the possibility that the best
interests of the child could be a standalone human right. The primary purpose is to demonstrate
that the best interests of the child can work consistently with human rights methodology, and thus
can be applied as a substantive human right in expulsion cases.
to not be in the public good, normally for reasons of national security or because of criminal offending by the foreign
national; s3(5)(a), Immigration Act 1971). Other States do not have distinct legal categories and this article uses the term
‘expulsion’ to refer to both, in common with the ECtHR. The public policy foundations of ‘deportation’ and ‘removal’
are overlapping but distinct; a distinction which regrettably cannot be fully explored here.
2. 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).
3. ibid.
170 Netherlands Quarterly of Human Rights 38(3)

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