The principle of the best interests of the child in European expulsion case law : a leading human rights principle anxious to be taken seriously

Abstract

For some years now, Europe has been struggling with a migration crisis. Every year, the total number of migrants that arrive in Europe increases and there is no sign that this trend will change in the near future. This has prompted states to adopt more strict expulsion mechanisms. However, many of these migrants are families with children, and in international law there is a general principle that in every decision the child’s best interests should be the primary consideration. In this master thesis, we examine how the European Court of Human Rights and the European Court of Justice balance the prerogative of states to expel aliens with the principle of the best interests of the child. Our research is limited to the case law concerning the right to family life and the prohibition of torture and inhuman or degrading treatment. After a thorough analysis of the available case law, we come to the conclusion that the courts do not use the best interests principle to its full potential. We contend that the international courts should adopt a procedural approach to the principle. This way, they could better protect the child’s interests, while at the same time guaranteeing a more coherent case law.