Expulsion of foreigners: The application of the Convention on the Rights of the Child in Chilean jurisprudence

Abstract

Courts of justice as organs of the State are obliged to respect and promote human rights. Chile is a member state of the international systems for the protection of these rights, therefore, it should apply the international norms that protect the rights of migrants in the judicial review of expulsion orders. This article reviews whether Chilean jurisprudence applies international standards in amparos trials aimed at claiming expulsion orders in the 2008-18 period. The analysis shows that there is no majority trend towards the direct application of international law, perhaps because, although human rights treaties have been ratified and put into effect internally, the outdated internal migration legislation does not expressly incorporate these standards. The courts expressly refer to international treaties in only 10% of the sample. The most widely used treaty has been the Convention on the Rights of the Child, followed by the American Convention on Human Rights. The protection of the family or the principles of family unity and the best interests of the child have been identified as relevant parameters to consider before giving rise to the expulsion of a foreigner. Courts of justice as organs of the State are obliged to respect and promote human rights. Chile is a member state of the international systems for the protection of these rights, therefore, it should apply the international norms that protect the rights of migrants in the judicial review of expulsion orders. This article reviews whether Chilean jurisprudence applies international standards in amparos trials aimed at claiming expulsion orders in the 2008-18 period. The analysis shows that there is no majority trend towards the direct application of international law, perhaps because, although human rights treaties have been ratified and put into effect internally, the outdated internal migration legislation does not expressly incorporate these standards. The courts expressly refer to international treaties in only 10% of the sample. The most widely used treaty has been the Convention on the Rights of the Child, followed by the American Convention on Human Rights. The protection of the family or the principles of family unity and the best interests of the child have been identified as relevant parameters to consider before giving rise to the expulsion of a foreigner.