respecting their right to due process. They argued that the girls’ expulsion from Argentine
territory was ordered without a hearing and without any judicial protection whatsoever. They
also maintained that Resolution 1088 and the arrest warrant constituted violations of Articles
8 and 7 of the American Convention. The representatives argued that by failing to notify the
alleged victims of Resolution 1088, while at the same time notifying the judicial bodies of the
decision taken, the authorities had left the victims in a situation in which they were unaware
of the content of the ruling that was being executed by the judicial authorities. The
representatives alleged a violation of Article 8 of the Convention in relation to the minimum
procedural guarantees in immigration proceedings.
57.
The State argued that it had not failed to state the grounds for its decision in
Resolution 1088, because under Argentine administrative law grounds for rulings from
another source are generally accepted. It further argued that Article 22(5) of the Convention
was never affected, since Ms. Habbal was not expelled, nor were her son and daughters
detained. Regarding the alleged violations of procedural guarantees, the State maintained
that the immigration authorities’ decision could be challenged through an appeal for review,
a remedy of appeal, or an appeal filed with a higher administrative authority. These appeals
could have been granted with suspensive effect. However, neither Ms. Habbal nor her legal
representatives took any of those actions, the State argued. The State contended that
Resolution 1088 had no legal effects, since the party involved was not notified. It also
maintained that the processing of the resolution and the criminal proceedings were two
separate issues that did not have a cause-and-effect relationship. It further argued that the
scope of, and grounds for, the decision were different. The State added that Ms. Habbal and
her son and daughters were not prevented from re-entering the country, and Ms. Habbal
returned to Argentine territory four more times after the resolution was issued. Lastly, the
State asserted that it had never been shown how Resolution 1088 could have had an impact
on the rights of the alleged victims.
A.2. Considerations of the Court
A.2.1. Right to freedom of movement and residence, and the minimum
guarantees of due process in expulsion proceedings
58.
Article 22 of the American Convention recognizes the right to freedom of movement
and residence. Paragraph 5 establishes that “No one can be expelled from the territory of the
state of which he is a national or be deprived of the right to enter it.” Paragraph 6 states that
“An alien lawfully in the territory of a State party to this Convention may be expelled from it
only pursuant to a decision reached in accordance with the law.�� The Court has stated that in
the exercise of their authority to establish immigration policies, States may establish
mechanisms to control the entry into and departure from its territory of non-nationals,
provided that these policies are compatible with the norms for the protection of the human
rights established in the American Convention. 69 In other words, although States have a
margin of discretion when determining their immigration policies, the objectives of such
policies must respect the human rights of migrants. 70
Cf. Juridical condition and rights of undocumented migrants. Advisory Opinion OC-18/03 of September 17,
2003. Series A No. 18, para. 164, and Case of expelled Dominicans and Haitians v. Dominican Republic. Merits,
reparations and costs. Judgment of August 28, 2014. Series C No. 282, para. 350.
69
Cf. Advisory Opinion OC-18/03, supra, para. 168, and Case of expelled Dominicans and Haitians v. Dominican
Republic, supra, para. 350.
70
19