Impediments to the expulsion of non-nationals : substance and coherence in procedural protection under the European Convention on human rights

Bryan, Ian and Langford, Peter (2010) Impediments to the expulsion of non-nationals : substance and coherence in procedural protection under the European Convention on human rights. Nordic Journal of International Law, 79 (4). pp. 457-479. ISSN 1571-8107

Abstract

This article offers a critical assessment of the interpretative positions adopted by the European Court of Human Rights as to the applicability of Convention rights and freedoms to the deportation of “aliens” resident in the territory of a Contracting State. The article considers inconsistencies in the Court's jurisprudence and argues that these inconsistencies are a result of the characterisation of deportation proceedings as administrative events. The authors also explore the nature of Contracting States' deportation procedures and examine key features of the procedural guarantees afforded to non-nationals under the Convention and its Protocols. In addition, the authors consider the extent to which Convention notions of due process and natural justice are deemed germane to deportation proceedings. The article contends that disparities in the procedural protections accorded to nationals when compared with resident non-nationals conflict with the purpose of the European Convention on Human Rights are an avertable consequence of the primacy of State sovereignty.