• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month
Page
  1. 1
    1
  2. 2
    2
  3. 3
    3
  4. 4
    4
  5. 5
    5
  6. 6
    6
  7. 7
    7
  8. 8
    8
  9. 9
    9
  10. 10
    10

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

Extracts from this document...

Introduction

´╗┐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. ...read more.

Middle

However, Article 8 deportation cases, particularly earlier ones, are often criticised for their lack of predictability and some say that the outcome of cases was ?somewhat of a lottery[18]?. To illustrate this unpredictability, one can look at two similar cases from the 1990s. In Boughanemi v France[19], no violation or Article 8 was found on grounds of the expulsion of a Tunisian national who had lived in France for 20 years since the age of eight, but had been sentenced to less than four year?s imprisonment. Contrastingly, in Beldjoudi v France[20], the Court found that the expulsion of an Algerian national who had been born in France but had been sentenced to a total of ten years imprisonment for a range of offences, was a violation of Article 8. The case-by case approach by the Court already received criticism in the 1990s, particularly from ECtHR judges, such as Judge Martens who expressed that this case-by-case approach was ?a source of embarrassment for the Court?[21]. A significant step in development of Article 8 deportation cases was the Courts judgment in Boultif v Switzerland[22] which sets out relevant criteria which need to be considered when assessing the likelihood that a decision will interfere with family life and if so, its proportionality to its legitimate aim. One should note here, that only the first two criteria, namely the nature and seriousness of the offence and the time elapsed since the commission of the offence and the applicant?s conduct since the offence, reflect the State?s interest in protecting society, whereas all remaining criteria attempt to measure the impact an expulsion order would have on the immigrant and his family. ...read more.

Conclusion

This would result in a reduction in the number of disproportionate deportations and it would improve legal certainty. At the same time, it would however also significantly narrow the margin of appreciation enjoyed by member states. To conclude, this essay has shown that the margin of appreciation in relation to deportation cases involving Article 8 of the ECHR is now broader than it was 20 years ago as ECtHR interferences are now more frequent. However, states still enjoy a relatively wide margin of appreciation and it has been argued in this essay that the margin of appreciation should be narrowed by providing an absolute prohibition on the deportation of long-term immigrants as this would provide legal certainty and fairness. It should be noted that in relation to deportation cases involving Article 8, the ECHR has to weigh up the community interest of public safety against the individual?s right to private and family life and the development of the cases discussed shows a trend towards giving more importance to the applicants? rights and as a result of more ECHR interferences, the margin of appreciation in this area has been narrowed. One final point which should be made is that the doctrine of the margin of appreciation itself might be questioned. Brauch, writing that the doctrine threatens the rule of law expresses that: ?Today the doctrine remains broad, vague, and largely undefined, leading to unpredictable (and often arbitrary) results[42]?. Furthermore, ECtHR Judge De Meyer stated in Z v Finland[43]: ?The empty phrases concerning the State?s margin of appreciation [?] are unnecessary circumlocutions, serving only to indicate abstrusely that the States may do anything the Court does not consider incompatible with human rights[44]?, thus heavily criticizing the concept. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Human Rights Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Human Rights Law essays

  1. Bellinger v Bellinger case note

    The respondent was born of indeterminate s*x and was registered as a boy merely because the father wanted a boy17. As the family court of Australia commented 'It seems illogical that the courts can decide that marriage can extend to inter-s*x persons, who can adopt the s*x of their choice, but not to post operative or transsexual persons18' .

  2. This essay will be divided into four sections. In the first section, the issue ...

    For this reason, the emotional injuries caused by the cartoon are more like those injuries produced by criticism than those inflicted by hate speech. Likewise, by being satiric in nature, the cartoon seems not carry the intention to terminate the Muslim community.

  1. The common law of defamation is structured around Article 10 of the European Convention ...

    yet more time and cost.35 The effect of the clause means cases will only be tried by a jury where the interest of justice overrides concerns the effective management of cases and amends S.69(1)(B) Supreme Court Act 1981 making jury trials an exception rather than a rule.

  2. human rights

    The ECHR has made it clear that Article 2 also requires that there should be a proper investigation when the police or army kill someone or when someone dies in custody. There have been several cases in the British courts where the courts have had to consider what type of investigation is necessary to meet this requirement.

  1. What kind of responsibility do some states have for the rights of the subjects ...

    state does not fulfill its obligations, and that "the Security Council may out of necessity decide to take action." In other words, international action on the wording proposed by the United States will continue to be purely optional and at the discretion of the Security Council.

  2. Human Rights - Articles 6 and 8 applied to fictitious cases.

    Although Article 8 has both vertical and horizontal effect, i.e. available to private individuals, it can be only applied against a public authority (S.6 of the Human Rights Act 1998 (the ?HRA?)). Under S.6(3)(b) of the HRA Wicket World?s nature of function appears to be of a private nature.

  1. Advise Jon regarding whether or not Raila can be prevented from publishing his face ...

    with your PDP tutor * How does your mark compare to the mark you anticipated? If there is a difference why is this? * What were the major strengths indicated by the marker? * What were the major weaknesses indicated by the marker?

  2. Over the last 25 years, there has been a significant movement towards more open ...

    Some of these exceptions apply only where release of the information would harm particular interests, such as defence or international relations. Other exceptions apply to entire classes of information even if disclosure does not cause harm. There is, for example, a general exception for all information that relates to the formulation or development of government initiatives and policy.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work