Expulsion of a forged foreigner and his separation from his partner and their 3 children. The gravity of the offense cannot outweigh the best interests of the children. Violation of respect for family life!
JUDGMENT
Unuane v. United Kingdom 24.11.2020 (app. no. 80343/17)
SUMMARY
Deportation of a foreigner convicted of forgery of residence permits. Separation with his partner and their three children. Right to respect for family life.
The applicant, a Nigerian national, resided permanently with his partner and their three children in the United Kingdom. They were deported as a family, except for the third child, for reasons of public order and security as both parents were convicted of forging residence permits. The applications for annulment of the partner of both children were accepted by the domestic courts, in contrast to that of the applicant, which was rejected and he was forced to leave the United Kingdom. He brought an action for violation of Article 8.
The Court reiterated its well-established case-law that although every state has the right to control the entry of aliens, deportation decisions must be reasoned and based on an imperative social need. It also set out the criteria for whether deportation is necessary in a democratic society, as set out in the Boultif and Üner cases.
In the present case, the ECtHR found that the domestic court had recognized the need for cohabitation of the partner and the stay of the partner and the children in the United Kingdom, nevertheless the applicant had been expelled for reasons of public policy and security.
The Strasbourg Court held that the Court of Cassation had failed to strike a fair balance between the best interests of the applicant’s children and the service of an urgent social need. The gravity of the specific offense committed by the applicant was not such as to outweigh the best interests of the children in order to justify his deportation.
The ECtHR found a violation of the right to respect for family life (Article 8 of the ECHR) and awarded an amount of 5,000 for non-pecuniary damage.
COMMENT
Important decision. Ten (10) criteria are set out in detail which the ECtHR uses to assess whether an expulsion measure was necessary in a democratic society and whether it was commensurate with the legitimate aim pursued.
In addition, the Court makes an interesting reference to the fact that the seriousness of the offense committed by the deported applicant does not outweigh the best interests of his children, which are to maintain family cohesion with their father, which is annulled due to deportation for reasons of public security.
PROVISION
Article 8
PRINCIPAL FACTS
The applicant, Charles Unuane, is a Nigerian national who was born in 1963.
The case concerned the applicant’s deportation to Nigeria, following a criminal conviction, forcing
him to leave his partner and three children in the United Kingdom.
The applicant came to the UK as a visitor in 1998 and was granted a right of residence the following
year. In December 2000, the applicant’s Nigerian partner entered the UK, and their three children
were born thereafter.
In 2009 he and his partner were convicted of offences relating to the falsification of some 30
applications for leave to remain in the UK. He was ultimately sentenced to a period of five years and
six months’ imprisonment, while his partner was sentenced to 18 months’ imprisonment.
In 2014 the Secretary of State for the Home Department issued a deportation order against the
applicant, his partner, and two of their children, who at the time were not British citizens, as
dependent family members of the applicant’s partner. The Secretary of State considered that the
applicant and his partner were foreign criminals and their deportation was for the public good.
The applicant appealed against the Secretary of State’s decision on the grounds that he had an
established family life and private life in the UK and his deportation to Nigeria would be in breach of
the European Convention on Human Rights. The applicant’s partner and the two children also
appealed.
Ultimately, in 2016, the domestic courts allowed the appeals of the applicant’s partner and children,
concluding that separating them would be “unduly harsh” on the children. The courts further
acknowledged an acute need for parental support in the case of the eldest of the children who had a
heart defect and was to have forthcoming surgery in the UK which was not available in Nigeria.
The applicant’s appeal was, on the other hand, dismissed because he could not identify, as required
by the Immigration Rules, “very compelling circumstances” against his deportation, over and above
the parental relationship with his children.
The applicant was deported in February 2018.
Relying in particular on Article 8 (right to respect for private and family life) of the Convention, the
applicant complained that his deportation to Nigeria had disproportionately interfered with his
family and private life.
THE DECISION OF THE COURT…
The Court’s assessment
The State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there . The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel an alien convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be in accordance with the law and necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued.
In Boultif the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria are the following:
– the nature and seriousness of the offence committed by the applicant;
– the length of the applicant’s stay in the country from which he or she is to be expelled;
– the time elapsed since the offence was committed and the applicant’s conduct during that period;
– the nationalities of the various persons concerned;
– the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life;
– whether the spouse knew about the offence at the time when he or she entered into a family relationship;
– whether there are children of the marriage, and if so, their age; and
– the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.
In Üner, the Court made explicit two further criteria implicit in those identified in Boultif:
– the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and
– the solidity of social, cultural and family ties with the host country and with the country of destination.
The requirement for “European supervision” does not mean that in determining whether an impugned measure struck a fair balance between the relevant interests, it is necessarily the Court’s task to conduct the Article 8 proportionality assessment afresh. On the contrary, in Article 8 cases the Court has generally understood the margin of appreciation to mean that, where the independent and impartial domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the applicant’s personal interests against the more general public interest in the case, it is not for it to substitute its own assessment of the merits (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities. The only exception to this is where there are shown to be strong reasons for doing so.
In the present case the Government accepted before the Upper Tribunal as well as before this Court that the applicant’s deportation would constitute an interference with his rights under Article 8 § 1 of the Convention.
The Immigration Rules
In the present case the applicant argues that the Tribunal was precluded by the Immigration Rules from conducting such an assessment and that the Tribunal’s only discretion outside the Rules would be to consider whether there existed “exceptional circumstances” or, following the 2014 amendment, “very compelling circumstances. That being said, the domestic courts have confirmed, and the Government has reiterated before this Court, that the Immigration Rules and section 117C of the Nationality, Immigration and Asylum Act 2002 provide scope for all relevant factors to be taken into account in the proportionality assessment and that, in considering whether “exceptional” or “very compelling circumstances” exist, the authorities should consider the proportionality test required by this Court.
The applicant’s deportation
In the context of the present case the Upper Tribunal neither made any substantial further findings adverse to the applicant nor conducted a separate balancing exercise as required by the Court’s case law under Article 8. In fact, the Upper Tribunal merely noted that it “cannot allow his appeal” on the basis that paragraph 398 of the Immigration Rules “imposed requirements” to identify “very compelling circumstances” over and above the accepted genuine and subsisting parental relationship with the children, something which the applicant could not establish.
In light of the above, it therefore falls to the Court, in exercise of its supervisory jurisdiction, to give the final ruling on whether an expulsion measure is reconcilable with Article 8.
In this context, the Court notes that in November 2009 the applicant was convicted of offences relating to the falsification of some thirty applications for leave to remain in the United Kingdom for which he was sentenced to a period of five years and six months imprisonment.
The offence was undoubtedly serious, as evidenced by the length of the prison sentence. Furthermore, it was not his first criminal conviction in the United Kingdom. In February 2005 he had been convicted of obtaining a money transfer by deception, for which he was sentenced to a period of unpaid work and ordered to pay a fine.
That being said, the Court has tended to consider the seriousness of a crime in the context of the balancing exercise under Article 8 of the Convention not merely by reference to the length of the sentence imposed but rather by reference to the nature and circumstances of the particular criminal offence or offences committed by the applicant in question and their impact on society as a whole. In that context, the Court has consistently treated crimes of violence and drug-related offences as being at the most serious end of the criminal spectrum. In any event, the fact that the offence committed by an applicant was at the more serious end of the criminal spectrum is not in and of itself determinative of the case. Rather, it is just one factor which has to be weighed in the balance, together with the other criteria which emerge from the judgments in Boultif and Üner.
In the present case the Upper Tribunal did weigh those other criteria in the balance, albeit exclusively with reference to the applicant’s partner. After all, having concluded that they had no hesitation in saying that it would be in the best interests of the children to remain in the United Kingdom with both of their parents and that it would be “unduly harsh” to separate them, they allowed his partner’s appeal and those of the minor children including under Article 8 of the Convention. Although many of the factors relevant to applicant’s partner’s appeal were essentially the same as those relevant to his own, his appeal was dismissed on the sole basis there were no “very compelling circumstances” over and above those which had applied in respect of his partner.
In the Court’s view, this conclusion is not reconcilable with Article 8 of the Convention. The Upper Tribunal itself acknowledged the strength of the applicant’s ties to his partner and children, all of whom would stay in the United Kingdom. It also acknowledged that his partner and children needed him, and this need for parental support was particularly acute in the case of D on account of his medical condition and forthcoming surgery. Finally, it accepted that it was in the best interests of the children for him to remain in the United Kingdom, a factor which, according to the Court’s case-law, must be accorded significant weight. Having regard to these careful and detailed findings by the Upper Tribunal, which must carry significant weight in the overall assessment of proportionality, the Court considers that in the circumstances of the present case the seriousness of the particular offence(s) committed by the applicant was not of a nature or degree capable of outweighing the best interests of the children so as to justify his expulsion. It therefore considers that the applicant’s deportation was disproportionate to the legitimate aim pursued and as such was not “necessary in a democratic society”.
There has accordingly been a violation of Article 8 of the Convention.
