The ties that bind: family and private life as bars to the deportation of immigrants

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I.

Introduction

International law protects certain categories of individuals from deportation; first and foremost, deportation of nationals is prohibited almost absolutely in both universal and regional instruments.¹ Beyond them, international law imposes few categorical restrictions on the regulation of immigration by states. It is widely acknowledged that control of immigration is a core aspect of the exercise of sovereignty, with respect to which states must be granted a substantial measure of freedom. Permanent residents, for example are not protected as such by any of the major human rights instruments.

Nonetheless, the state's scope of discretion with respect to deportation - as the converse of immigration - may be affected by the operation of various international human rights, such as the right to a hearing, the prohibition on racial and other discrimination, the right to property, the prohibition on inhuman treatment, and more. This article focuses on the operation of rights related to family life and to private life with regard to the deportation of immigrants. The analysis focuses on two international instruments: the 1966 International Covenant on Civil and Political Rights (ICCPR), and the European Convention on Human Rights and Fundamental Freedoms (ECHR). ²

Section II considers the gradual weakening in the European Court of Human Rights (ECtHR) of the reliance on the right to family life and the growing significance to the right to private life. Section III examines the almost converse process in the HRC monitoring the ICCPR, of broadening the right to family life, to achieve similar concrete results. Section IV notes that the jurisprudence of the two institutions, while potentially leading to similar results in many cases, is based on different conceptions of the protection from deportation. While the ECtHR considers the protection of potential deportees from a right-based perspective, the HRC proceeds from a status-based perspective. Section IV also offers tentative conclusions on the merits of the different approaches. It evaluates the consequences of this shift for the protection of both long-term, integrated immigrants, and other immigrants.

II.

ECtHR: from family life to private life

ECHR Article 8 stipulates:

(1)

Everyone has the right to respect for his private and family life, his home and his correspondence.

(2)

There shall be no...