Equality in Immigration Law: An Impossible Quest?

2020 ◽  
Vol 20 (4) ◽  
pp. 725-744
Author(s):  
Jean-Baptiste Farcy
Keyword(s):  
Human Rights ◽  
Case Law ◽  
International Human Rights Law ◽  
European Court ◽  
Legal Perspective ◽  
Domestic Courts ◽  
Restraint Mechanism ◽  
Economic Worth ◽  
Proportionality Test ◽  
Citizenship Laws

Abstract The aim of this article is to discuss why the principle of equality and non-discrimination, although foundational to international human rights law, remains an unfulfilled promise in the context of immigration. Nationality is now widely considered as a suspect ground of discrimination, yet contemporary immigration and citizenship laws increasingly use meritocratic criteria to distinguish among migrants. Although framed in universal terms, these criteria create differences of treatment among migrants based on their income, level of education and economic worth. However, from a legal perspective such differences of treatment rarely amount to prohibited discrimination. Looking at the case law of the European Court of Human Rights, this article argues that the normative content of the equality and non-discrimination principle fails to challenge such differences of treatment. Moreover, the proportionality test is used as a judicial restraint mechanism which prevents the effective enforcement of the equality requirement by international and domestic courts in the context of immigration.

The European Court of Human Rights and Removal of Long-term Migrants

2021 ◽  
pp. 159-174
Author(s):  
Başak Çalı ◽  
Stewart Cunningham
Keyword(s):  
Human Rights ◽  
Migration Policy ◽  
Case Law ◽  
Unique Position ◽  
European Court ◽  
Domestic Courts ◽  
Central Argument ◽  
The Right ◽  
Dual Commitment

This chapter analyses the general interpretative outlook of the European Court of Human Rights (ECtHR) on the rights of long-term migrants facing deportation. It shows that this outlook is strongly marked by recognising the primacy of state discretion in the field of migration policy, while at the same time ensuring that long-term migrants are given access to the protection of the Convention. The chapter then surveys the case law of the ECtHR related to the deportation of long-term migrants, identifying the factors that the Court employs in balancing its dual commitment to states and long-term migrants. The central argument of the chapter is that the Court’s approach to the right to stay of long-term migrants falls short of adequately recognising the unique position of long-term migrants and is unable to differentiate between those who have lived for lengthy periods in host states and any other category of alien in those states. The Court’s recent emphasis on principled deference to domestic courts in balancing the rights of long-term migrants and host states further undercuts any future progressive developments in the field of right to stay for long-term migrants.

scholarly journals The European Court of Human Rights’ Engagement with International Human Rights Instruments: Looking at the Cases of Domestic Violence

2021 ◽  
pp. 79-96
Author(s):  
Ebru Demir
Keyword(s):  
Domestic Violence ◽  
Human Rights ◽  
Specific Area ◽  
Case Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
European Court ◽  
International Human ◽  
Scope Of Protection

In its recent jurisprudence on domestic violence, the European Court of Human Rights started to examine the domestic violence cases in the light of relevant international human rights law developed in this specific area. This article examines the engagement of the European Court of Human Rights with other international and regional human rights instruments in domestic violence cases. Upon examination, the article concludes that by integrating its case law into international human rights law the European Court of Human Rights broadens the scope of protection for domestic violence victims and maintains the unity of international law.

scholarly journals ‘To me, fair friend, you can never be old’, William Shakespeare, ‘Sonnet 104’: ECHR at 70 Rudolf Bernhardt Lecture, 202

2021 ◽  
Vol 81 (4) ◽  
pp. 895-916
Author(s):  
Başak Çalı
Keyword(s):  
Human Rights ◽  
William Shakespeare ◽  
Case Law ◽  
European Convention ◽  
European Court ◽  
Domestic Courts ◽  
The Rich ◽  
Good Proxy ◽  
Mature Part ◽  
Over Time

This article undertakes a survey of the changes in the structure of the interpretive doctrines of the European Court of Human Rights (the Court) over time in an exploration of the aging of the European Convention on Human Rights (ECHR or the Convention) on its 70th anniversary. It argues that the Court’s interpretive doctrines that seek to give due deference to national rights traditions, canons and institutions have become increasingly pervasive in the Court’s procedural and substantive case law in the last two decades. This, in particular, has come at a loss for interpretative doctrines that interpret the Convention as a practical and effective living pan-European instrument. This argument is built in four parts. First it offers a defence of why a study of the interpretive doctrines of the Court over time is a good proxy for studying the ECHR’s ageing process. In the second part, it discusses the rich doctrinal forms of due deference and effective interpretation in the case law of the Court – both young and mature. Part three explains how the judicialisation and expansion of the European human rights system in late 1990 s transitioned to a more heightened and sophisticated focus on due deference doctrines in the Court’s case law. Finally, part four examines whether the recent judicial innovations under the Court’s Article 18 case law and the widely celebrated success of increased ownership of the Convention by domestic courts can act as counter points to the argument that the effective interpretation principle has suffered a loss as the Convention has aged, concluding that none of this may offset the fact that the Convention at 70 is more conservative in spirit than its younger self.

Allowing the Right Margin: The European Court of Human Rights and The National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?

2012 ◽  
Vol 14 ◽  
pp. 381-418 ◽  
Author(s):  
Dean Spielmann
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Council Of Europe ◽  
European Court ◽  
Margin Of Appreciation ◽  
Essential Question ◽  
Domestic Courts ◽  
The Right ◽  
Domestic Law

AbstractThe doctrine of the national margin of appreciation is well established in the case law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute. The areas in which the doctrine has most often been applied will be presented here, looking at various examples from case law. After a brief overview of the doctrine’s origin, the analysis will focus on the situations in which the margin has been allowed or denied. Does it relate merely to factual and domestic-law aspects of a case? What is the scope of the margin of appreciation when it comes to interpreting provisions of the European Convention on Human Rights? What impact does an interference (whether disproportionate or not) with a guaranteed right have on the margin allowed? Is there a second-degree or ‘reverse’ margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? Lastly it is noteworthy that Protocol No 14, now ratified by all Council of Europe Member States, enshrines in Article 12—at least to some extent—an obligation to apply a margin of appreciation. One essential question remains: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity?

THE PROCEDURAL APPROACH OF THE EUROPEAN COURT OF HUMAN RIGHTS: BETWEEN SUBSIDIARITY AND DYNAMIC EVOLUTION

2019 ◽  
Vol 68 (1) ◽  
pp. 91-110 ◽  
Author(s):  
Thomas Kleinlein
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Shared Responsibility ◽  
Democratic Legitimacy ◽  
Dynamic Evolution ◽  
International Human Rights Law ◽  
Progressive Development ◽  
Procedural Approach ◽  
European Court ◽  
Protection Of Human Rights

AbstractThis article explores how a procedural approach in the case law of the ECtHR combines subsidiarity and progressive development of international obligations. Rather than constituting a simple retreat from substantive commitments, it renders the obligations of Conventions States more flexible and has the potential to enhance the democratic legitimacy of the Court's rulings. This article first sets out various aspects of proceduralization in international human rights law. This is followed by a discussion of how procedural approaches are linked to subsidiarity. In the case law of the ECtHR, procedural approaches facilitate dynamic evolution, both in the practice of Convention States (analytic or bottom-up approach) or by the Court itself (constructive or top-down approach). This interaction of the procedural approach and arguments based on European Consensus allows the ECtHR and domestic institutions to fulfil their ‘shared responsibility’ for the effective protection of human rights in Europe.

scholarly journals Od predmeta Mccann do predmeta F.J.M.

2020 ◽  
Vol 41 (1) ◽  
pp. 113-132
Author(s):  
Gabrijela Mihelčić ◽  
Maša Marochini Zrinski ◽  
Renata Šantek
Keyword(s):  
Human Rights ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Proportionality Test ◽  
The Right ◽  
Analyse Case

The authors discuss and analyse case law of the European Court of Human Rights regarding the right to respect for home under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and with respect the issue of proportionality. In the paper, the proportionality category was viewed as a criterion for securing protection and as a material precondition for deciding whether the State party's interference with the right to respect for home was proportionate. The cases in which the applicant's eviction occurred after national proceedings for the enforcement of mortgages were addressed. In this context, the genesis of the proportionality category was analysed, from the cases where the Court found it necessary to examine the proportionality to the cases where the Court did not consider the proportionality test necessary.

scholarly journals Searching for a Reference: Using Automated Text Analysis to Study Judicial Compliance

2018 ◽  
Vol 12 (2) ◽  
pp. 131-160
Author(s):  
Katarina Šipulová ◽  
Hubert Smekal ◽  
Jozef Janovský
Keyword(s):  
Human Rights ◽  
Text Analysis ◽  
Single Case ◽  
Case Law ◽  
European Court ◽  
Domestic Courts ◽  
Automated Text Analysis ◽  
Cherry Picking ◽  
Research Questions

The concept of judicial compliance has attracted plenty of attention in the last two decades. Yet, despite the growing scholarly interest, important research questions remain largely unresolved. This is partly due to the persistent use of unsystematic research, built on the cherry picking of cases. The content of only a few well-known judgments has been thoroughly examined, and the rest remains largely ignored by the legal scholarship. The aim of this article is to introduce a sketch of a new three-level approach for improving research on judicial compliance in a multi-level arena. We show how the use of automated text analysis in combination with more traditional legal methods might shed more light on the concept of judicial compliance and judicial dialogues. We explain the procedure of the automated collection of data and their coding and also point out the risks of using automated text analysis when studying judicial compliance. The approach is demonstrated on a single case study of the use of European Court of Human Rights rulings by Czech apex courts. This study assesses how often and in what way the domestic courts engage with the European Court of Human Rights case law.

scholarly journals Peculiarities of application of the practice of the European Court of Human Rights in the justice in Ukraine

2021 ◽  
pp. 14-17
Author(s):  
Andrii Rybalkin ◽  
Yuliia Nosenko
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Case Law ◽  
Legal Framework ◽  
Reform Process ◽  
Scientific Article ◽  
Judicial Reform ◽  
International Human Rights Law ◽  
European Court ◽  
Human Rights Standards

The scientific article examines the activities of the European Court of Human Rights and identifies the significance of the relevant case law of the European Court for the case law of Ukraine. It is noted, that one of the issues, studied within the topic, is the sources and legal framework, which is especially relevant in the adoption of the Law of Ukraine «On Enforcement of Decisions and Application of the Case Law of the European Court of Human Rights», according to which courts use the Agreement and case law as a legal source in cases. The activity of the European Court of Human Rights, the role and impact on the judicial system of Ukraine are analyzed, the relevant examples are given. It is concluded, that the implementation of international human rights law into Ukrainian law is a complex procedure that requires special doctrinal consideration, as today Ukrainian citizens are among the most active complainants to the European Court of Human Rights, which indicates a fairly high insecurity by national legal mechanisms. In order to increase the credibility of the judiciary, courts should take into account the European experience, decisions and observations of the Court in their work. The Court's case law is said to play an important role in the judicial reform process as it approaches the European legal framework for human rights standards in Europe. The current law cannot fully protect a person or build justice if it is not applied properly. Based on existing ECtHR rulings, judges can accurately understand the rule of law and apply it properly, which will help improve human rights, accurate understanding and implementation of the Agreement on Ukraine. Based on the study, it was concluded, that it is necessary and appropriate to implement the decisions of the European Court of Human Rights, as in this way it is possible to ensure the protection and defense of human and civil rights and freedoms

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