This research aims to provide a structural human rights approach to migration law. To this end, it is studied to what extent admission and residence claims can arise from human rights norms. Two concepts form the backbone of this study, through which human rights are analysed: transnational ties and core content. ‘Transnational ties’ refers to the idea that people are connected in several ways, through networks, with each other and with one or multiple state (communities). Networks can have cross border implications, since foreign nationals may be connected to the country of residence, as is the case with (the right to) family life. The other concept in this research, ‘core content’, refers to the idea that (certain) fundamental rights contain an absolute core which may not be interfered with. This implies that when deportation to a situation where a restriction of these fundamental rights is imminent, the core of the right should not be affected. The prohibition of refoulement, implicitly derived from the prohibition of inhuman and degrading treatment, is illustrative. The impact of various (other) human rights norms in light of these concepts is analysed through a division into types of norms in the European Convention on Human Rights (hereafter: ECHR) analysed in light of the case law of the European Court of Human Rights (hereafter: ECtHR): classical freedom rights, procedural rights, socio economic rights and equality norms. The ‘transnational ties’ approach shows different outcomes with regard to the question to what extent human rights provisions may lead to a migration claim. Communal ties form a strong factor in classical freedom rights, while the physical aspect of transnational ties is primarily visible in socio-economic norms. The case law of the ECtHR shows a slow development of application of classical freedom rights in migration cases. A deportation was at first not deemed to infringe these rights, whereas in more recent cases the ECtHR has found a violation of the right to respect for private life or the right to freedom of religion because of an expulsion decision. These cases concerned mainly the community-aspect of these provisions. However, the assessment of the ECtHR is in all cases characterised by the immigration clause (states are entitled to regulate the entry and expulsion of aliens). The type of measure – admission or expulsion – also appears to be taken into account. This can be traced back to the degree of connection by and with a certain (state) community, which is deemed higher when an alien is being deported than when he is being refused entry. As regards the 'core content' concept, it is concluded that a more stringent test applies in refoulement context to other rights than the rights mentioned in articles 2 and 3 ECHR: a flagrant denial-test. The limitation system of ECHR rights can partly explain why a ‘core approach’ takes place with regard to a refoulement prohibition in the case of classical freedom rights and why a ‘core of the core approach’ in the other rights. It was shown that the protection of procedural rights as a refoulement prohibition is limited to the ‘core of the core’ of these rights. Something similar is visible with regard to the equality principle, due to the special position of race within the category of suspect discrimination grounds. In the case of classical liberty rights, reference is made in the refoulement context to the ‘core’ of the rights. In socio-economic rights, a ‘core of the core’ terminology is not explicit in the case law, but given the stricter application of these rights in refoulement context, such an approach can be deduced here as well.
|Award date||15 Jun 2021|
|Place of Publication||Den Haag|
|Publication status||Published - 15 Jun 2021|