The Exclusiveness of Inclusion: On the Boundaries of Human Rights in Protecting Transnational and Second Generation Migrants

The Exclusiveness of Inclusion: On the Boundaries of Human Rights in Protecting Transnational and... © Koninklijke Brill NV, Leiden, 2009 DOI: 10.1163/138836409X12469435402819 European Journal of Migration and Law 11 (2009) 253–269 brill.nl/emil Th e Exclusiveness of Inclusion: On the Boundaries of Human Rights in Protecting Transnational and Second Generation Migrants Anuscheh Farahat * Research Fellow, Max-Planck-Institute for Comparative Public and International Law Heidelberg, Germany Abstract Th is article analyses the treatment of so-called transnational migrants in expulsion cases reviewed under Article 8 of the European Convention on Human Rights before the European Court of Human Rights (hereinafter: the Court). By regularly crossing national borders and maintaining cultural and social ties to more than one country these migrants are in fact not eff ectively protected by the Court. Th is disadvantag- ing treatment can be explained as being the result of the Court’s doctrine of margin of appreciation which allows domestic political preference in immigration policy to dominate the balancing process before the Court. Th e margin of appreciation doctrine is interpreted as the Court’s way of dealing with the more general tension it faces in acting as a guardian on the one hand and respecting domestic legislation on the other. Th is tension is strengthened by the institutional arrangement under which the http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png European Journal of Migration and Law Brill

The Exclusiveness of Inclusion: On the Boundaries of Human Rights in Protecting Transnational and Second Generation Migrants

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Publisher
Brill
Copyright
© 2009 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
1388-364X
eISSN
1571-8166
D.O.I.
10.1163/138836409X12469435402819
Publisher site
See Article on Publisher Site

Abstract

© Koninklijke Brill NV, Leiden, 2009 DOI: 10.1163/138836409X12469435402819 European Journal of Migration and Law 11 (2009) 253–269 brill.nl/emil Th e Exclusiveness of Inclusion: On the Boundaries of Human Rights in Protecting Transnational and Second Generation Migrants Anuscheh Farahat * Research Fellow, Max-Planck-Institute for Comparative Public and International Law Heidelberg, Germany Abstract Th is article analyses the treatment of so-called transnational migrants in expulsion cases reviewed under Article 8 of the European Convention on Human Rights before the European Court of Human Rights (hereinafter: the Court). By regularly crossing national borders and maintaining cultural and social ties to more than one country these migrants are in fact not eff ectively protected by the Court. Th is disadvantag- ing treatment can be explained as being the result of the Court’s doctrine of margin of appreciation which allows domestic political preference in immigration policy to dominate the balancing process before the Court. Th e margin of appreciation doctrine is interpreted as the Court’s way of dealing with the more general tension it faces in acting as a guardian on the one hand and respecting domestic legislation on the other. Th is tension is strengthened by the institutional arrangement under which the

Journal

European Journal of Migration and LawBrill

Published: Jan 1, 2009

Keywords: MARGIN OF APPRECIATION; CORE CONTENT; TRANSNATIONAL MIGRATION; SECOND GENERATION; EXPULSION CASES; ARTICLE 8 ECHR

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