© 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
European Journal of Migration and Law – Brill
Published: Jan 1, 2009
Keywords: MARGIN OF APPRECIATION; CORE CONTENT; TRANSNATIONAL MIGRATION; SECOND GENERATION; EXPULSION CASES; ARTICLE 8 ECHR
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