The United Nations Draft Articles on Expulsion of Aliens

For the past decade, the International Law Commission of the United Nations – charged with creating and developing international law – has undertaken the study and analysis of the topic of expulsion of aliens (deportation of noncitizens). In June 2014, the International Law Commission adopted the Draft Articles on the Expulsion of Aliens. In doing so, it recommended that the General Assembly assist in the dissemination of the articles and consider the creation of an international convention based on the draft articles. You can read more about the drafting process here.

 

Select Decisions and Recommendations by Courts and International Human Rights Bodies

European Court of Human Rights

  • Paposhvili v. Belgium (Case No. 41738/10, ECtHR 2016) (expulsion of applicant, who died before issuance of decision, had taken place without assessment of impact of removal on the applicant’s right to respect for his family life in view of his state of health, such expulsion would have amounted to a violation of Art. 8)
  • Ramadan v. Malta (Case No. 76136/12, ECtHR 2016) (Court acknowledges that arbitrary denial or revocation of citizenship could raise Art. 8 issue due to impact on private life of individual, but finds no such violation even when applicant is left stateless as it deems revocation of citizenship in this case not arbitrary and notes that applicant runs no risk of deportation)
  • Novruk and Others v. Russia (Case Nos. 31039/11, 48511/11, 76810/12, 14618/13, 13817/14, ECtHR 2016) (denial of residence based on HIV positive status violates Art. 14 on nondiscrimination and Art. 8 on respect of family life)
  • J.K. and Others v. Sweden (Case No. 59166/12, ECtHR 2016) (applicant’s deportation to Iraq would violate Art. 3 on torture and inhuman or degrading punishment)
  • F.G. v. Sweden (Case No. 43611/11, ECtHR 2016) (deportation of Iranian national who recently converted to Christianity without assessment of his conversion’s consequences would violate Art. 2 and 3)
  • Tarakhel v. Switzerland (Case No. 29217/12, ECtHR 2014) (return of Afghani family to Italy without assurance that the Italian government could guarantee adequate accommodation for families seeking asylum in Italy would violate Art. 3 prohibiting inhuman or degrading treatment)
  • M.A. v. Cyprus (Case No. 41872/10, ECtHR 2013) (violation of Art. 13’s right to an effective remedy taken together with Art. 2’s right to life and Art. 3’s prohibition of inhuman and degrading treatment due to lack of an effective remedy with automatic suspensive effect to challenge the applicant’s deportation).
  • Maslov v. Austria (Case No. 1638/03, ECtHR 2008) (Art. 8 violated because expulsion was disproportionate to legitimate aim of prevention of disorder or crime given length of lawful residence, family and social ties and lack of ties to country of origin).
  • DeSouza Ribeiro v. France (Case No. 22689/07, ECtHR 2012) (Art. 13 and 8 require States to provide procedural safeguards when expulsion would cause irreversible damage to migrant’s right to family life).
  • Üner v The Netherlands, (Case No. 46410/99; ECtHR 2007) (Followed criteria set forth in Boultif v Switzerland, (2001) 2 FLR 1228 in determining whether expulsion would be a violation of Art. 8, and added consideration of the best interests of children of the applicant and the extent and depth of applicant’s social, cultural and family ties with the returning and receiving states).

Court of Justice of the European Union

  • Sec. of State for the Home Dept. v. CS (Case C-304/14) and Alfredo Rendon Marin v. Administracion del Estado (Case C-165/14) (non-EU national having sole care and control of a minor child who is a citizen of the EU may not be expelled from a member state or be refused a residence permit simply because he has a criminal record).
  • Gerardo Ruiz Zambrano v. Office national de l’emploi (Case C-34/09) (non-EU national with dependent EU citizen children cannot be refused residence or work permit as doing so would deprive children of the genuine enjoyment of the substance of the rights attaching to the status of citizen of the EU).
  • Skerdjan Celaj (Case C-290/14) (the Return Directive does not preclude a Member State from imposing a criminal sanction on a third-country national who unlawfully re-enters in breach of an entry ban following return).
  • Mohamed M’Bodj v État belge (C-542/13) (removal of a seriously ill person could in exceptional circumstances amount to a breach of Art. 3 ECHR, however Member States not required to grant the social welfare and health care benefits to a third country national who has been granted leave to reside in the territory).

Inter-American Commission and Court of Human Rights

  • Case of Expelled Dominicans and Haitians v. Dominican Republic (Ser. C, No. 282, Court) (the Dominican Republic’s systemized practice of expulsions, denial of personal identity documents and denial of citizenship to Dominicans of Haitian descent violated the right to a nationality (Art. 20), the right to legal personality (Art. 3), the right to personal liberty (Art. 7), the right to equality before the law (Art. 24), rights of the family and of the child (Arts. 17 and 19), as well as fair trial guarantees (Art. 8) and judicial protection (Art. 25) as guaranteed by the American Convention on Human Rights).
  • Case of the Pacheco Tineo Family v. Plurinational State of Bolivia (Ser. C, No. 272, Court) (Bolivian government’s return of a family to Peru, where they were subject to detention, was a violation of Art.  (fair trial), 22.7 (right to seek asylum) and 22.8 (prohibition on return if threat to life or freedom) of the American Convention on Human Rights).
  • Wayne Smith and Hugo Armendariz v. The United States of America (Case No. 12.561 and 12.562, Commission) (U.S. deportation policy violates fundamental human rights because it fails to consider evidence concerning the adverse impact of the destruction of families, the best interest of the children of deportees, and other humanitarian concerns).
  • Andrea Mortlock v. The United States of America (Case No. 12.534, Commission) (deportation to Jamaica with knowledge of her health issues and the country’s substandard access to health care for those with HIV/AIDS would constitute a de facto sentence to protracted suffering and unnecessarily premature death and therefore violate Art. XXVI’s protection against cruel, infamous or unusual punishment)

African Commission and Court on Human and People’s Rights 

United Nations Human Rights Committee

United States Supreme Court

  • Padilla v. Kentucky, 559 U.S. 356 (2010) (Sixth Amendment of US Constitution requires criminal defense counsel to advise noncitizen defendant regarding the immigration consequences of a guilty plea); Chaidez v. US, 133 S.Ct. 1103 (2013) (rule announced in Padilla not retroactive).
  • Torres v. Lynch, 136 S. Ct. 1619 (2016) (state crime counts as “aggravated felony” leading to mandatory removal when it corresponds to federal offense even when it lacks interstate commerce element).
  • Lopez v. Gonzales, 549 U.S. 47 (2006) and Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) (narrowed what constitutes drug trafficking “aggravated felony” leading to mandatory removal).
  • Descamps v. US, 133 S. Ct. 2276 (2013); Mathis v. US, 136 S. Ct. 2243 (2016); Mellouli v. Lynch, 135 S.Ct. 1980 (2015) (reaffirm strict application of the categorical approach).