The Margins of Discretion in Transnational Administrative Acts: Expulsion Decisions and Entry Bans Following a Criminal Conviction

Kathrin Hamenstädt is a Lecturer in Law at Brunel University London, UK.

This book analyses the expulsion of delinquent foreigners and their exclusion from the territory through a comparative lens.The book begins with a vertical perspective, focusing on the effects of European standards on the law of expulsion and entry bans in Germany and the Netherlands, and the law regulating deportation from the United Kingdom. It explores how these countries use their margin of discretion, granted by European law, to solve the societal, political and legal challenges that are posed by delinquent foreigners. Moreover, it highlights the similarities, convergences and differences between these countries' approaches to the topic.Subsequently, the book adopts a horizontal perspective by focusing on the effects of national decisions on other states, thereby addressing transnational administrative acts. National expulsion decisions and entry bans can be given effect throughout European countries, with the consequence that other states are in principle obliged to enforce them by refusing foreigners access to their territory. This obligation arises despite the fact that expulsion decisions and entry bans are adopted on the basis of diverging national provisions. Even though the margin of discretion of national decision makers has already been limited, the remaining differences call for further recommendations, which are put forward in this book.

Taking a comparative approach it explore the law's use in a number of fields, from migration law to criminal law

PART IEUROPEAN LAW1. Expulsions in Light of EU LawI. Expulsions of EU Citizens, EEA and Swiss Nationals and their Family MembersII. Expulsion of Turkish NationalsIII. Third-country Nationals Covered by the Long-term Residence DirectiveIV. Other Groups of Third-country NationalsV. Summary and Conclusions2. Expulsion in Light of the ECHR and the ECtHR's Case LawI. Binding and Non-binding InstrumentsII. Article 8 ECHR and the ECtHR's Case LawIII. Interests of the Individual vs Interests of the StateIV. Summary and Conclusions3. The Charter of Fundamental Rights of the European UnionI. Right to Respect for Private and Family Life and the Rights of the ChildII. Protection in the Event of Removal, Expulsion or Extradition, Article 19 CFRIII. The Right to an Effective Remedy and to a Fair Trial, Article 47 CFRIV. Concluding Remarks4. Summary and Conclusions: Differences between the EU Level and the Council of EuropePART IITHE EFFECTS OF EUROPEAN LAW ON EXPULSION DECISIONS TAKEN AT THE NATIONAL LEVEL5. GermanyI. Introduction to the Concept of Expulsion Decisions in German LawII. The Abolished System of Expulsion (1990-2015)III. The New Provisions on ExpulsionIV. Entry BanV. Conclusions6. The NetherlandsI. The Legal FrameworkII. The Termination of Lawful Residence Following a Criminal ConvictionIII. Two Types of Entry Bans: Inreisverbod and OngewenstverklaringIV. The Ongewenstverklaring, Article 67 Vw 2000V. The Inreisverbod, Article 66a Vw 2000VI. Intensity of Judicial Scrutiny: In-depth or Marginal Assessment?VII. The Rationale of the Sliding ScaleVIII. Summary and Recommendations7. The United KingdomI. The Provisions Governing the Deportation of Convicted ForeignersII. Convicted Foreigners and Article 8 ECHRIII. The Balance between the Principle of Proportionality and the Principle of Legal CertaintyIV. Rationale of the Provisions Governing the Deportation of Convicted ForeignersV. Conclusions8. Comparison of Germany, the Netherlands and the United KingdomI. General ObservationsII. Differences between Germany and the Netherlands in Sentencing and the Duration of the Entry BanIII. ConclusionsPART IIITRANSNATIONAL ADMINISTRATIVE ACTS: THE EFFECTS OF NATIONAL EXPULSION DECISIONS AND ENTRY BANSON THE EUROPEAN LEVEL9. Transnational Administrative Acts: The European Effect of National Expulsion Decisions and Entry BansI. Transnational Administrative ActsII. The Schengen Information SystemIII. Return DirectiveIV. Summary and Conclusions Regarding Mutual Recognition, Modes of Administrative Decision Making, SIS Alerts and Entry Bans10. National Expulsion Decisions and Entry Bans and their European DimensionI. Differences between Germany and the Netherlands Regarding Expulsion Decisions and the Termination of Lawful Residence aft er a Criminal ConvictionII. Requirements at the National Level for Entry Bans and SIS AlertsIII. Duration of the Entry BanIV. Summary and Conclusions11. Options to Remedy Remaining DivergencesI. Deficiencies of the Current SystemII. Options for ImprovementIII. Likelihood of a Harmonisation of the Criteria for National Expulsion DecisionsIV. Likelihood of a Further Specification of the Criteria for Entering Alerts into the SISV. Final Remarks and OutlookFinal Summary and Conclusions