Strasbourg's ‘Hidden Agenda’?: The Protection of Second-Generation Migrants from Expulsion under Article 8 of the European Convention on Human Rights

Publication Date01 September 1994
AuthorRyszard Cholewinski
DOI10.1177/016934419401200304
SubjectPart A: Article
Strasbourg's 'Hidden Agenda'?:
The Protection
of
Second-Generation Migrants from Expulsion
under Article 8
of
the European Convention on Human Rights
Ryszard Cholewinskt
Abstract
International human rights standards play a minimal role in regulating state sovereign
discretion over the entry, residence and exit
of
non-nationals. Recent jurisprudence
of
the
European Commission and Court
of
Human Rights has afforded some protection to
second-generation migrants against expulsion from their country
of
residence
if
their right
to respect
for
their private and family life
is
infringed under Article 8
of
the European
Convention on Human Rights. These interventions by the Strasbourg organs in favour
of
one
of
the most vulnerable and disadvantaged groups in Western Europe today are
welcome and timely, but they should be developed into clear, uniform and unambiguous
legal principles. Such principles may be extracted from a number
of
separate opinions in
the case law
of
the Court and the Commission revealing a normative 'hidden agenda'
aimed at the protection
of
second-generation migrants. Given present restrictive
nationality laws, tighter immigration controls and the racist violence directed at
foreigners on the continent, this agenda must be articulated unambiguously by the
Strasbourg organs
if
second-generation migrants are to receive the full protection
of
the
Convention.
Introduction
The European Court
of
Human Rights recently oversaw a remarkable U-tum by the
United Kingdom Government. In May 1990, the authorities deported a
23
year-old
Moroccan immigrant on the ground that his expulsion from the country was 'conducive
to
the public good'. He had been convicted
of
a number
of
criminal offenses, some
of
which involved violence. Although not naturalised, he had resided lawfully
in
the United
Kingdom since an early age. After exhausting all domestic avenues of appeal, he made
an application
to
the European Commission of Human Rights which found his complaint
admissible. The Commission issued a report in his favour in October 1992, concluding
that he had been a victim of a violation by the United Kingdom
of
Article 8 of
the
European Convention on Human Rights.' In June 1993, the Court struck the case
of
its
list after the government reached a friendly settlement with the applicant by agreeing
to
the following terms:
to
revoke the deportation order against him and
to
allow him
to
re-
enter the United Kingdom;
to
grant him indefinite leave to remain and
to
permit him
to
make an application for naturalisation; and
to
pay him £8,398.02 in respect of costs and
expenses incurred.2
As
is common with such friendly settlements, the government did not admit that it
had breached the Convention. Nonetheless, this remarkable tum-around was clearly based
Lecturer, Faculty
of
Law, University
of
Leicester.
European Commission
17
February 1992 (Admissibility decision) and
13
October 1992 (Report), Appl.
16152/90, Lamguindaz v. United Kingdom.
European Court
28
June 1993 (Friendly settlement), 48/1992/392/471 , Lamguindaz v. United Kingdom.
287
NQHR 3 I 1994
on the perception that the Court was unlikely to rule
in
its favour
if
the matter came
before it, particularly as the Commission had found that there had been
an
infringement
of
Article 8(1)
of
the Convention which reads: 'Everyone has the right to respect for his
private and family life, his home and his correspondence.'
The capitulation
of
the United Kingdom government is all the more remarkable when
juxtaposed with the principle
of
general international law recognising that sovereign states
retain control over the entry, residence and exit
of
aliens
or
non-nationals, subject to
certain specific exceptions such as the European Community's free movement
of
workers
regime. However, minimum standards
of
customary international law and treaty
obligations have also eroded the discretion
of
states
in
respect
of
those non-nationals
already admitted to their territory. 3 The readiness
of
the United Kingdom Government
to
limit its discretion
in
the Lamguindaz case, without contesting the matter before the
European Court
of
Human Rights, is a reflection
of
the increasing positive influence
of
international legal standards in an area where the broad scope
of
national discretion is
fertile ground for potential human rights abuses.
Lamguindaz v. United Kingdom is also another chapter in the recent jurisprudence
of
the Strasbourg organs under Article 8
of
the Convention, which aims to protect so-
called 'second-generation migrants' from expulsion from their country
of
residence.
Second-generation migrants are defined for the purpose
of
the article as those persons
who have resided in a country for a considerable period
of
time, without obtaining, for
whatever reason, citizenship
of
that country. They may have been born to foreign parents
there,
or
arrived there with their parents at
an
early age.4 While agreeing that the
interventions
of
the Commission and the Court
in
favour
of
one
of
the most vulnerable
and disadvantaged groups
in
Western Europe today are welcome and timely, the article
also argues that they ought to be developed into clear, uniform and certain legal
principles. Such principles may be extracted from a number
of
separate opinions
in
the
jurisprudence
of
the Court and the Commission, which reveal a normative 'hidden
agenda' aimed
at
the protection
of
second-generation migrants. Given restrictive
nationality laws, which are discussed
in
the context
of
the relevant case law towards the
end
of
the article, tighter immigration controls and the sporadic racist violence directed
at
foreigners
on
the European continent, this agenda must
be
articulated unambiguously
by the Strasbourg organs
if
second-generation migrants are to receive the full protection
of
the Convention.
288
CJ.
A.
Drzemczewski, The Position
of
Aliens
in
Relation to the European Convention on Human Rights,
Strasbourg 1985, p. 7.
An
example is the obligation
of
non-refoulement in Article
33
of
the Geneva
Convention Relating to the Status
of
Refugees.
The difficulties in defining who is a 'second-generation migrant' are noted by Widgren. See J. Widgren,
'The Position
of
"Second-Generation Migrants" in Western Europe', (1986)
23
Studi Emigrazione, p. 7
ff. The restriction
of
this definition
to
non-nationals
in
the article
is
merely a pragmatic way
of
focusing
on the additional problems faced
by
young persons
of
foreign origin in Europe when they lack the
nationality
of
the country
of
residence. Economic, social and cultural disadvantages suffered
by
such
persons, however, may equally be experienced
by
those who have acquired the citizenship
of
that country.

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