The necessary limitations to the freedom of movement under the European Convention on Human Rights and the EU acquis : a comparative study

Abstract

This paper analyses the rules limiting freedom of movement both under European Union law and under the European Convention on Human Rights. This perspective was adopted because these two regimes regulate the free movement of persons of the countries in the European region, including Malta. Hence, the desired outcome is to clearly determine the content of the grounds under the two legal systems which may be resorted to by countries to restrict this fundamental freedom. Under the chapter discussing the law of the European Union, the paper studies the notions of public policy, public security and public health, going even into an interpretative exercise of the key notions in the Citizens’ Rights Directive. In this exposition, the chapter will make reference to the most important decisions of the European Court of Justice. The chapter will also explore the key principles surrounding expulsion orders. Following this, the paper then studies the grounds provided under the European Convention on the Protection of Human Rights by giving an overview of the most important cases of the European Court of Human Rights which made a significant contribution to the development of the field of free movement. The chapter shall be presented according to the construction of the wording of article 2 of the fourth protocol. The paper concludes with a chapter which is dedicated to present those areas and principles which are shared by the two legal regimes: the respect for human rights, respect for the principles of proportionality and non-discrimination, provision of an accessible law and rules against the automatic imposition of restrictions.