ECHR Article 8: Where does margin of appreciation lie regarding the respect for private and family life under Article 8 ECHR in cases of deportation

Authors Avatar

European Human Rights Law/EU Law

Assignment One

Question 1

‘Where does margin of appreciation lie regarding the respect for private and family life under Article 8 ECHR in cases of deportation’.

Discuss.


Question 1:

Article 8 of the European Convention on Human Rights aims to protect the individual against arbitrary interference in his or her private or family life. It is a qualified right, so that there is the possibility for state interference and states certainly have some discretion when applying the Article, thus, there is a certain ‘margin of appreciation’ given to member states.

        The following essay will explore the extent of the margin of appreciation in relation to Article 8 in deportation cases. The first part of the essay will give consideration to the margin of appreciation doctrine in general, as this plays a crucial role in the interpretation of all of the Convention rights. The second part of the essay will then explore the evolution of Article 8 case law in the field of deportation. Here, a particular focus will be on deportation cases of long-term immigrants, so called ‘virtual nationals’. Lastly, the current position of case law on this issue will be examined and propositions for reform, which would narrow the margin or appreciation, will be put forward.

The margin of appreciation is a doctrine that plays a crucial role in the interpretation of the European Convention on Human Rights (ECHR). It refers to the amount of discretion the Court gives to national authorities when it takes legislative, administrative, or judicial action in the area of a Convention right. Thus, margins of appreciation are the “outer limits of schemes of protection which are acceptable under the Convention[1]”.

        The use of margins of appreciation allows the European Court of Human Rights (ECtHR) to keep in touch with legal reality where there is scope for differential application of Convention provisions while still retaining some control and supervision over member state conduct[2]. The doctrine thus reflects the subsidiary role of the Convention in protecting human rights as the initial and primary responsibility for the protection of human rights lies with the contracting parties[3].

        Moreover, one should note that the term ‘margin of appreciation’ does not appear anywhere in the ECHR. The Court created this doctrine because of the way many of the Articles are structured, with a first paragraph setting out the fundamental right protected, and a second paragraph which articulates a restriction or limitation of that right[4].

        The main question in relation to this issue is: How much deference should the Strasbourg organs give to national authorities to determine whether a particular interference with a right is ‘necessary in a democratic society’[5]? In Handyside v UK, the ECtHR said: “By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.[6]

        It is, however, often difficult to decide how wide or narrow the margin of appreciation in relation to a particular right should be. On the one hand, when it is applied widely, so as to appear to give a state a blank cheque, it may be argued that the Court has abdicated its responsibilities[7]. On the other hand, the Strasbourg institutions are not supposed to impose solutions from the outside without paying proper regard to the expertise of local decision-makers[8], instead, they should only review and monitor that member states act in accordance with the Convention rights. A wide margin of appreciation has for example always been afforded in cases concerning public morality and Handyside v UK[9] shows the reluctance of the Court to interfere in the area of public morality when the domestic decision is at least sustainable on legitimate grounds[10].

        Furthermore, it should be noted that the margin of appreciation doctrine is mostly relevant to qualified, as opposed to absolute rights as states do not have much discretion in relation to absolute rights such as the right to life in Article 2.

Join now!

        The doctrine of the margin of appreciation plays a significant role in the development of Article 8 case law as it gives states a degree of discretion in sensitive areas where the Court is reluctant to interfere with decisions made by those who have direct contact with the parties involved, or where a different approach is justified by local conditions[11]. The essay will now examine the development of Article 8 cases in relation to deportation and it will be apparent that while the margin of appreciation in relation to these cases has become narrower in recent years, it is still ...

This is a preview of the whole essay