Beyond Decisions About a Child and Decisions Affecting a Child in Deportation Cases

Abstract

Who should be central to the determination of deportation decisions: parent or child? The state claims an interest in enforcing immigration control by removing the adult. The child, on the other hand, has an interest in maintaining their relationships with both of their parents, as well as the practical and cultural benefits of growing up in the country of their nationality or habitual residence. How to decide between these competing claims is of practical and theoretical importance in human rights determinations under Article 8 echr and Article 3 uncrc. This article investigates the theoretical distinction which is drawn between decisions about a child and decisions affecting a child, and argues that this approach is problematic. First, Article 8 echr is an incomplete vehicle for determining the best interests of the child. Secondly, it reinforces the ‘problematic logical inversion’ found in the European Court of Human Right’s migration jurisprudence.