Rape conviction carries little weight against right to family life, rules Strasbourg

21 September 2011 by

 A.A. v. THE UNITED KINGDOM – 8000/08 [2011] ECHR 1345 – Read judgment

The Strasbourg Court has ruled unlawful the deportation of a Nigerian man convicted of rape. Considering the facts of his case afresh, the Court came to the conclusion that the 24 year old student’s right to family life would be violated if he were removed to Nigeria. 

The applicant arrived in the United Kingdom in 2000 at the age of 13 join his mother. At the age of 15, he was convicted of rape. After serving less than two years of his four-year sentence he was released on licence in 2004.  The Home Office served him with a notice of liability to a deportation order on account of the rape conviction. Although the Immigration Judge of the Asylum and Immigration Tribunal (“the AIT”) allowed the applicant’s appeal, the Secretary of State’s appeal against this finding ultimately prevailed since it was found that the various factors in respect of his family life and his good conduct in remand did not outweigh the presumption in favour of deportation in accordance with the current version of the Immigration Rules.

The applicant complained to the Strasbourg Court that his deportation to Nigeria would violate his rights under Article 8. He argued, amongst other things,  that the presumption in the Immigration Rules that when a person was liable to deportation because of a criminal conviction or some other reason, deportation was in the public interest, was incompatible with Article 8. In placing the burden on the applicant to show that deportation was not justified, he argued, paragraph 364 of the Immigration Rules departed from the approach adopted by the Convention and the Court.

His complaint was upheld and he was awarded 4,000 Euros in costs and expenses.

The Court considered that  the applicant, though a young adult and living independently during the week, stays with his mother at weekends and has not yet founded a family of his own, and therefore could be regarded as having “family life”.  Those factors aside, Article 8 had to be applied in its widest sense, protecting as it does the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity,

it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of “private life” within the meaning of Article 8.

Thus, regardless of the existence or otherwise of a “family life”, the expulsion of a settled migrant constituted an interference with his right to respect for private life.

In considering the proportionality of the intended deportation, the Court took the view that the justification relied on by the  government was the “prevention of disorder or crime”.  In the light of this particular aim, the Court concluded that the period of time which has passed since the offence was committed and the applicant’s conduct throughout that period were particularly significant. Here the applicant’s “exemplary conduct” and “commendable efforts” to rehabilitate himself and to reintegrate into society led the Court to conclude that the applicant’s deportation from the United Kingdom would be disproportionate to the legitimate aim of the “prevention of disorder and crime” and would therefore not be necessary in a democratic society.

A  “fourth-instance” court?

Despite the fact that the Court chose to ignore it, this case turned on Section 364 of the Immigration Rules, prescribed by the Secretary of State under section 3(2) of the Immigration Act 1971. The relevant section provides as follows:

… while each case will have to be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects …

It is notable that the Court did not refer once to this Rule, which was the basis of the deportation order, and why it was upheld in the domestic courts. Instead of examining whether the rule and its application properly took into account the guiding principles established by its case law, the Strasbourg Court preferred to replace domestic authorities’ weighing of interests by its own assessment of the facts de novo.  In doing this the Court has arguably taken upon itself the role of a court of appeal,  or, as is sometimes said, as a “fourth-instance” court (Maslov v Austria), not for the first time. Explaining its approach, the Court declared that

the State’s margin of appreciation in this regard goes hand in hand with European supervision and the Court is therefore empowered to give the final ruling on whether an expulsion measure is reconcilable with Article 8

It therefore went about finding a violation on the basis of its own somewhat inconsistent case law on what constitutes “family ties” for the purposes of Article 8 – in the past indicating that young non- dependent adults are entitled to claim family life (Bouchelkia v. FranceBoujlifa v. France), more recently suggesting that they are not (Onur v. the United Kingdom, A.W. Khan v. the United Kingdom).

The appropriate approach for the Court, given the basis of the application, the arguments before it and most crucially its supervisory rather than appellate role, would have been to address the matter of the Immigration Rules. In order to achieve what it no doubt viewed as a just outcome in this case it would therefore have had to find that Section 364 was incompatible with Article 8 of the Convention. Such a finding would no doubt have provoked a request from the UK to refer the case to the Grand Chamber, a dust up which the Court would have wanted to avoid, since it might force the issue on its jurisdictional basis for giving “final rulings” – in other words questioning the basis of its “empowerment”.

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