including control of the entry, residence and expulsion of aliens. 466 However, when a State
takes a decision that involves a limitation to the exercise of any right of a child, it must
take the child’s best interests into account and adhere strictly to the relevant
provisions. 467 In this regard, it should be stressed that a measure of expulsion or
deportation may have prejudicial effects on the life, well-being and development of the
child, so that his or her best interests should be an overriding consideration. 468 Thus,
“[a]ny decision concerning the separation of the child from his or her family must be
justified by the best interests of the child.” 469 Specifically, the Court has affirmed that “the
child must remain in its family unit, unless there are determining reasons, based on the
child’s best interests, to decide to separate him or her from the family.” 470 Consequently,
the legal separation of the child from his or her family is only admissible if it is duly
justified by the best interests of the child, if it is exceptional and, insofar as possible,
temporary. 471
417. Nevertheless, the Court considers that the child’s right to family life does not
transcend per se the sovereign authority of the States Parties to implement their own
immigration policies in conformity with human rights. In this regard, it should be noted
that the Convention on the Rights of the Child also refers to the possibility of family
separation owing to the deportation of one or both parents. 472
418. The Court will now apply the jurisprudential principles described above. Bersson
Gelin was expelled from Dominican Republic to Haitian territory in 1999, resulting in his
separation from his son, William Gelin, who was a child at the time. Mr. Gelin’s deprivation
of liberty and expulsion were actions taken in non-compliance with the State’s obligation
to respect the treaty-based rights without discrimination; they were not carried out within
the framework of immigration proceedings under domestic law, the basic procedural
guarantees required by domestic law were not followed, nor were the international
obligations of the State (supra paras. 213, 405 and 407). Consequently, the measure did
not seek a lawful purpose and it was not in keeping with the legal requirements, hence it
is not necessary to weight the protection of the family against the measure, and converts
the separation of Bersson Gelin from his son, William Gelin, into an unjustified family
466
Cf. Case of Vélez Loor v. Panama, para. 97, and Rights and Guarantees of Children in the Context of
Migration and/or in Need of International Protection. OC-21/14, para. 273.
467
Cf. Juridical Status and Human Rights of the Child. OC-17/02, para. 65, and Rights and Guarantees of
Children in the Context of Migration and/or in Need of International Protection. OC-21/14, para. 273.
468
Cf. Committee on the Rights of the Child, General Comment 14 on the right of the child to have his or her
best interests taken as a primary consideration (art. 3, para. 1), CRC/C/CG/14, para. 60, and Rights and
Guarantees of Children in the Context of Migration and/or in Need of International Protection. OC-21/14, para.
278.
469
Cf. Juridical Status and Human Rights of the Child. OC-17/02, para. 73, and Rights and Guarantees of
Children in the Context of Migration and/or in Need of International Protection. OC-21/14, para. 273.
470
Cf. Juridical Status and Human Rights of the Child. OC-17/02, para. 77, and Rights and Guarantees of
Children in the Context of Migration and/or in Need of International Protection. OC-21/14, para. 273.
471
Cf. Juridical Status and Human Rights of the Child. OC-17/02, para. 77; Case of Gelman v. Uruguay, para.
125, and Rights and Guarantees of Children in the Context of Migration and/or in Need of International
Protection. OC-21/14, para. 273.
472
Article 9(4) indicates the following: “Where such separation results from any action initiated by a State
Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause
while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon
request, provide the parents, the child or, if appropriate, another member of the family with the essential
information concerning the whereabouts of the absent member(s) of the family unless the provision of the
information would be detrimental to the well-being of the child. States Parties shall further ensure that the
submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.” Cf.
Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection. OC21/14, para. 274.
133
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