decision to be known, in order to rule out any indication of arbitrariness. 100 It must also show
that the arguments of the parties have been duly taken into account and that the body of
evidence has been studied.
69.
Moreover, this Court has stipulated that, although deprivation of liberty may seek a
legitimate purpose and be appropriate to achieve this, on combining the criteria developed
and based on the principle of the best interest of the child, the deprivation of liberty of children
based exclusively on migratory reasons exceeds the requirement of necessity, 101 because this
measure is not absolutely essential in order to ensure their appearance at the immigration
proceedings or to guarantee the implementation of a deportation order. Adding to this,the
Court finds that the deprivation of liberty of a child in this context can never be understood
as a measure that responds to the child’s best interest. Thus, the Court considers that
measures exist that are less severe and that could be appropriate to achieve such an objective
and, at the same time, satisfy the child’s best interest. In sum, the Court finds that the
deprivation of liberty of a child migrant in an irregular situation, ordered on this basis alone,
is arbitrary and, consequently, contrary to the Convention. 102
70.
In addition, the Court has recognized that, in immigration matters, a child’s right to
the protection of the family and, in particular, to enjoy family life preserving family unity
insofar as possible, should always be given prevalence, except in those cases in which the
separation of the child from one or both parents would be necessary owing to the best interest
of the child. However, the child’s right to family life per se does not override the authority of
the States to implement their own immigration policies in keeping with human rights, in the
context of proceedings relating to the expulsion of one or both parents. 103 Therefore, to
determine whether an immigration measure that may imply the separation of children from
their family complies with the terms of the Convention, an assessment must be made of
whether it is: established by law, and complies with the requirements of (a) suitability; (b)
necessity, and (c) proportionality; in other words, it must be necessary in a democratic
society. 104
71.
However, in this regard this Court has established that in those situations in which the
child has a right to nationality – original, by naturalization, or for any other reason established
in domestic law – of the country from which one or both of the parents may be expelled owing
to their irregular migratory situation, or in which the child complies with the legal conditions
to reside there on a permanent basis, it is axiomatic that the child must conserve the right to
continue enjoying her or his family life in said country and, as a component of this, mutual
enjoyment of the cohabitation of parents and children. The Court has found that the rupture
of the family unit by the expulsion of one or both parents due to a breach of immigration laws
related to entry or permanence is disproportionate in these situations, because the sacrifice
inherent in the restriction of the right to family life, which may have repercussions on the life
Cf. Case of Claude-Reyes et al. v. Chile. Merits, reparations and costs. Judgment of September 19, 2006.
Series C No. 151, para. 122, and Case of Pávez Pávez v. Chile. Merits, reparations and costs. Judgment of February
4, 2022. Series C No. 449, para. 154.
100
101
Cf. Case of Vélez Loor v. Panama, supra, para. 166, and Advisory Opinion OC-21/14, supra, para. 154.
102
Cf. Advisory Opinion OC-21/14, supra, para. 154.
103
Cf. Advisory Opinion OC-21/14, supra, para. 274.
104
Cf. Advisory Opinion OC-21/14, supra, para. 275.
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