Between Self-Determination, Consistency and Rights Protection: Process-Based Review in Expulsion Cases under Article 8 of the European Convention on Human Rights

Abstract: This thesis examines the practice of the European Court of Human Rights to decide expulsion cases implicating migrants with criminal record under Article 8 of the European Convention on Human Rights by use of process-based review. It departs from the premise that such expulsions do not violate absolute rights but constitute interferences with a qualified right, which allows for infringements necessary in a democratic society. Process-based review is a way for the European Court of Human Rights to decide whether interferences in qualified rights meet this requirement, focusing on the quality of the domestic decision-making process which preceded the contentious measure. This type of review has been consolidated in expulsion cases implicating migrants with criminal record through the Üner-criteria, which domestic courts must consider in their decisions, but to which they may attribute different relative weight within their margin of appreciation. Descriptively, this thesis examines how process-based review has been used in all 21 such cases decided during the period 1 January 2018–31 December 2022. By looking qualitatively at the reasoning of the European Court of Human Rights this thesis identifies ten cases where positive inferences were drawn from the high quality of the national process, supporting the finding that there was no violation, five cases where negative inferences were drawn from shortcomings in the national process, supporting the finding that there was a violation, and six cases where, for different reasons, no important inferences were drawn from the quality of the domestic process. Normatively, this thesis discusses the examined cases from the three values of political self-determination, protection of the rights-claimant, and consistency. It finds that the way process-based review has been employed can be justified from the perspective of political self-determination, because the criteria allow for considerations of social trust, and because process-based review encourages democratic iteration of European human rights law. Similarly, the practice can be justified from the perspective of protecting the rights-claimant, because it respects the moral core of the rights, aims to ensure that relevant and individualised reasons are given also when no moral imperative prohibits expulsion, and gives non-citizens a possibility for indirect political influence. However, this thesis identifies issues with consistency. It finds that process-based review should be applied with more foreseeability regarding when and how much substantive concerns are part of the assessment. Furthermore, the inconsistent application between States giving more leniency to the courts of the United Kingdom must be remedied.