The principle of the best interests of the child in the expulsion case law of the European Court of Human Rights: Procedural rationality as a remedy for inconsistency
| Date | 01 March 2019 |
| DOI | 10.1177/0924051918820986 |
| Author | Mathieu Leloup |
| Published date | 01 March 2019 |
| Subject Matter | Articles |
Article
The principle of the best
interests of the child in the
expulsion case law of the
European Court of Human
Rights: Procedural
rationality as a remedy
for inconsistency
Mathieu Leloup
University of Antwerp, Belgium
Abstract
According to Article 3 CRC, the best interests of the child should be a primary consideration in all
actions concerning children. This article examines how the European Court of Human Rights
applies this principle in expulsion cases that have an impact on the right to family life. A distinction
is made between the cases where the expulsion measure is aimed at one of the parents and the
cases where the child itself is the subject of the impugned decision. A critical examination of the
available case law proves that the Court’s use of the principle is inconsistent in several areas. It is
argued that the Court should adopt a procedural approach towards the principle. This would make
the case law more consistent, while simultaneously increasing the children’s protection.
Keywords
Best interests of the child, expulsion, right to family life, European Court of Human Rights,
procedural rationality, children’s rights
Corresponding author:
Mathieu leloup, PhD Assistant in Constitutional and Administrative Law, University of Antwerp, Venusstraat 23, 2000
Antwerpen, Belgium.
E-mail: mathieu.leloup@uantwerpen.be
Netherlands Quarterly of Human Rights
2019, Vol. 37(1) 50–68
ªThe Author(s) 2019
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DOI: 10.1177/0924051918820986
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1. Introduction
One of the most important principles in international law is the principle of the best interests of the
1
Its broad scope
and general wording make it important in all aspects of society, like education, juvenile justice or
health care. Throughout the years, the principle has also permeated into the sphere of migration law
and has impacted many different aspects, including the practice of detaining families with chil-
dren,
2
detention facilities
3
and means of subsistence.
4
One other aspect of migration law that the best interest principle has affected, are expulsion
proceedings. As a principle of well-established international law, states have the right to control the
entry of non-nationals into their territory.
5
They therefore have the prerogative to expel aliens
when they have sufficient reason to do so.
6
However, this power is curbed by the duties flowing
from the international treaties they are a party to.
7
Despite the fact that the best interests principle has led to an incredible amount of academic
writing, its use in expulsion case s has so far not received much scholarly attention. Existing
research on this topic limits itself to discussing the use of the principle in specific countries,
8
or
examines it as a part of a broader research question.
9
Nonetheless, this matter is of significant
importance for child migrants and/or their parents. If the best interests of these children are not
taken into account when deciding on an expulsion, this could have negative consequences for their
physical and/or mental well-being. Therefore, this article aims to give a general overview of how
the principle is applied in expulsion cases in the case law of the European Court of Human Rights
(the Court).
The central research question in this article is thus how the Court uses the best interests principle
in its expulsion case law. This research is limited to the case law concerning the right to family life
and focuses on the most recent case law, more specifically cases from the last ten years.
10
The
relevant judgments and decisions that were issued in this timeframe are analysed in order to infer
the principles that the Court applies in its case law. This analysis, read in conjunction with the
1. McAdams referred to it as an absolute principle of international law. Jane McAdams, ‘Seeking Asylum Under the
Convention for the Rights of the Child: A Case for Complementary Protection’ (2006) International Journal of
Children’s Rights 251, 251.
2. A.B. v France App no 11593/12 (ECtHR, 12 July 2016).
3. Muskhadzhiyeva and others v Belgium App no 41442/07 (ECtHR, 19 January 2010).
4. V.M. v Belgium App no 60125/11 (ECtHR, 7 July 2015).
5. Abdulaziz, Cabales and Balkandali v UK App no 9214/80 (ECtHR (GC), 28 May 1985) para 67.
6. Pieter Boeles and others, European Migration Law (2nd edn, Intersentia 2014) 16.
7. Ian Brownlie, Principles of International Law (6th edn, OUP 2003) 499.
8. Fabrice Langrognet, ‘De l’Incantation `a la Norme: L’Incidence Statistique Croissante de l’Int´ereˆt Sup´erieur de l’Enfant
Dans le Contentieux de l’ ´
Eloignement des ´
Etrangers’ (2015) La Revue des Droits de l’Homme 1-11; Trude Haugli and
Elena Shinkareva, ‘The Best Interests of the Child versus Public Safety Interests: State Interference into Family Life
and Separation of Parents and Children in Connection with Expulsion/Deportation in Norwegian and Russian Law’
(2012) International Journal of Law, Policy and the Family 351-377; Anna Lundberg, ‘The Best Interests of the Child
Principle in Swedish Asylum Cases: The Marginalization of Children’s Rights’ (2011) Journal of Human Rights
Practice 49-70.
9. Ciara Smyth, ‘The Best Interests of the Child in the Expulsion and First Entry Jurisprudence of the European Court of
Human Rights: How Principled is the Court’s Use of the Principle?’ (2015) European Journal of Migration and Law
70, 71.
10. The best interests principle has been used explicitly for the first time in an expulsion case in 2006. This research will
therefore focus on the subsequent case law. See n 13.
Leloup 51
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