THE RIGHT TO STAY AS A FUNDAMENTAL FREEDOM?

Abstract

Aliens are guests. Their right to stay is contingent upon observance of the ‘rules of the house’. If they commit an offence, they shall leave. This strict rule, adopted in Europe and elsewhere, conveys an easy message of deterrence, allegedly effective in preventing crime. Yet, an expanding coalition of courts, raising the flag of the rule of law, questions its legitimacy. The European Court of Human Rights promotes an expansive ‘individualist’ reading of Article 8 ECHR, which threatens any automatism in the removal. Influent domestic courts and the European Court of Justice follow a convergent path, holding that the right to stay is essential to the free development of human personality: hence, any limitation of this (fundamental) right must be proportional. Such ‘rights-based’ approach challenges the traditional ‘nationalist’ model of constitutional adjudication, insofar as it replaces citizenship with territoriality as the basic criterion for the protection of individual liberties.