On Tuesday, following an increasingly interesting avenue for vindicating the human rights of undocumented immigrants, the Appeal Court in the Hague and the High Court in London issued decisions upholding the rights of the children of failed asylum seekers. Both courts applied the European Convention on Human Rights (ECHR) in finding the state practices unlawful. Though each court was careful to apply the convention narrowly, these decisions may be part of a trend that may expand protection of migrants through the rights of their children.
In the Dutch case, a failed Angolan asylum seeker and her three minor children won the right "not to be put out on the street." In other words, though the woman has refused to cooperate with efforts to remove her, the Appeal Court in the Hague held that the Dutch state is obligated to provide shelter and care to her and her children until they leave the country or the children reach the age of majority. The state had wanted to place the children in foster care to facilitate deportation the mother, but the court decided that the children's right to family unity overrode the state interest in immigration enforcement. The opinion draws on the jurisprudence of the European Court of Human Rights, focusing on the children's right to a family life under Article 8. Though the Dutch court notes that the expansion of immigration status under Article 8 is limited, it distinguishes this case as determining whether the government could kick the family out of the free refugee housing center in which they resided, not whether the mother could obtain lawful immigration status.
In the English case, the High Court considered the legality of the detention of the minor children of failed asylum seekers. The court read the UK Home Department's written policy to require that families with children be detained only in exceptional circumstances, but found that these limits on detention of children were not applied in practice. The opinion draws on several reports by British officials, including the Chief Inspector of Prisons, the Children's Commissioner for England, the House of Commons Home Affairs Committee, and the Independent Chief Inspector of the UK Border Agency, all of which harshly criticized the practice of detention of children for sustained periods of time. Though the UN Convention on the Rights of the Child has not been incorporated into UK domestic law, the court held that UK immigration law requires compliance with Articles 3 and 37(b) of the treaty, protecting the best interests of the child and prohibiting arbitrary detention, in decisions to detain children. Moreover, the court found a violation of Article 5 of the ECHR, which protects against arbitrary detention.
These decisions are a far cry from extending a right to residency to undocumented migrants, even those with minor children who face unstable and potentially violent situations in their home countries. Yet they fill important gaps in protection, and offer a creative route for expanding the human rights of those who are often left vulnerable under domestic laws and practices. For those of us beyond the jurisdiction of the ECHR, the decisions offer a tantalizing glimpse of the impact of a robust supranational human rights regime on domestic law and policy on the treatment of migrants. And though the holdings are modest, the use of human rights language with respect to undocumented immigrants and their children and the explicit prioritizing of their rights as individuals over the state's interest in enforcement (as compared to the federal preemption analyses used to assess the rights of immigrants in recent U.S. decisions) holds significant expressive power.
(translation of the Dutch Appeal Court decision, and all errors therein, are mine; a newsclip about the case with English subtitles is available here)