Den reglerade invandringen och barnets bästa : Barns rätt till familjeliv och privatliv enligt barnkonventionen, Europakonventionen, EU-rätten och svensk utlänningslagstiftning

Sammanfattning: This thesis analyses the principle of the best interests of the child and the right to private and family life in relation to the societal interest of controlling immigration. The aim of the thesis is to contribute to ensuring more predictable and transparent legislation and decision-making.States, generally, have the right to control immigration. At the same time, a child’s right to family and private life is a human right – regulated, for example, by the UN Convention of the Rights of the Child, the European Convention on Human Rights and the EU Charter of Fundamental Rights. This means that states can only restrict these rights when such interference is justified. In migration cases concerning private and family life, an assessment therefore must be made as to whether a decision to refuse residence is proportional. When a child is affected by such a decision, the child's best interests must be carefully assessed and taken into consideration. This thesis examines what is legally required of a correct decision in migration cases concerning a child’s right to private and family life. Particular attention is given to those requirements imposed on lawmakers and legal actors by the public law principles of legality, objectivity and proportionality, as well as the duty to give reasoned decisions. This thesis charts the development and foundations of Swedish migration law including those requirements arising from EU and public international law. The focus thereafter is more specifically on the assessments made balancing the interests of children's rights and immigration control.Whether a restriction of the right to private and family life is proportionate is determined by the specific circumstances in the individual case. However, the research conducted demonstrates that there is a lack of guidance concerning which circumstances Swedish legal actors can and should consider, as well as the weight that should be attributed to the considered circumstances. The interest of immigration control is particularly ambiguous. The thesis identifies four types of circumstances that the Swedish lawmaker appears to suggest legal actors consider within this interest; (a) public order and security, (b) maintenance and enforcement of immigration control, (c) national economic well-being (including number of migrants), and (d) protection of the rights and freedoms of others.Lack of clear guidance is problematic, particularly in light of the principles of legality, objectivity and proportionality, as the outcomes of cases depend on what individual legal actors choose to consider. Vague guidance on what constitutes relevant circumstances may also contribute to the problem of poorly formulated decisions as identified in previous research. In order to increase the probability of legal actors rendering more correct decisions – on the basis of applicable law – a five-step model is presented: (1) identifying private and/or family life (2) identifying the child's best interests (3) identifying the underlying motivations linked to the interest of immigration control (4) listing the arguments for and against granting residence in Sweden and (5) determining which interests should prevail.The thesis concludes with a number of recommendations aimed mainly at lawmakers that could contribute to strengthening children's rights and increasing adherence to the rule of law in migration cases concerning children's right to private and family life.

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