When is family life family life? A look at deportation cases – Lourdes Peroni

27 September 2011 by

In A.A. v. the United Kingdom, a recent case involving the deportation of a young Nigerian man, the Court faced, once again, the question whether relationships between adult children and parents/siblings amount to family life in deportation cases. The Court’s Fourth Section did not give a clear answer to this question. The 24-year-old applicant resided with his mother and did not have children of his own [also see Rosalind English’s post].

In this post, I take a quick look at the Fourth Section’s reasoning on this issue and try to situate it in the wider context of the Court’s deportation case law. One word of caution:  this is an attempt to briefly look at one specific question the Court asks to decide whether the deportation has interfered with an applicant’s right to respect for her family life. Do the ties invoked by the applicant constitute family life within the meaning of Article 8 § 1? To be more specific, do relationships between adult children and parents/siblings amount to family life in deportation cases?

Let’s start with the Court’s reasoning in A.A. v. the United Kingdom. First of all, the Fourth Section does a good job in giving an overview of the Court’s recent case law on this issue in an area where it does not always appear crystal clear (paragraphs 46-50). In essence, the Court tells us of the various cases concerning young adults claiming family life with respect to their parents and siblings. In many of these cases, the Court has accepted the existence of family life. The main reference here is Maslow v. Austria, a 2008 Grand Chamber judgment, which admitted that the deportation interfered with both the applicant’s “private life” and “family life.” The Court stated in Maslow:

“… the Court has accepted in a number of cases concerning young adults who had not yet founded a family of their own that their relationship with their parents and other close family members also constituted “family life.” (para. 62)

One important element in the Court’s family life analysis in these cases, as the Fourth Section observes inA.A., seems to be whether the applicant has children of her own. This might have been indeed one of the reasons behind the Court’s rejection of family life in cases concerning other young adults like A.W. Khan v. the United Kingdom and Onur v. the United Kingdom. In A.W. Khan, the Court did not accept that the applicant had family life with his mother and brothers, notwithstanding the fact that he was living with them and that they suffered several health problems (para. 32). Referring to Slivenko v. Latvia, the Court back then observed that in “immigration cases […] there will be no family life between parents and adult children unless they can demonstrate additional elements of dependence” (para. 32). In Onur, also based on Slivenko v. Latvia, the Court did not find that “the applicant enjoyed family life with his mother and siblings as he has not demonstrated the additional element of dependence normally required to establish family life between adult parents and adult children” (para. 45).

Contrary to A.W. Khan and Onur, the applicant in A.A., like the one in Maslow, had not yet had a family of his own. It is therefore hard to understand why exactly the Court did not fully embrace the Maslowrationale by expressly recognizing interference with his family life. True, the Court later clarifies that it does not really matter whether the analysis takes place under family life or private life, as the factors examined in the proportionality analysis are ultimately the same. Still, one is left wondering where exactly did Maslow go here. Moreover, one wonders whether this would not really matter to an applicant who claims family life on minority cultural grounds.

The picture gets particularly blurry if one goes back to Slivenko v. Latvia and other deportation cases concerning members of the Russian-speaking minority in Latvia.  In Slivenko, the Grand Chamber famously remarked that, when it comes to expulsion and extradition measures, the main emphasis lies in family life understood as normally limited to the “core” of family (para. 94). The Court is here talking about parents and minor children, as it soon becomes clear from Judge Kovler’s dissent who complains about the majority opting “for the traditional concept of a family based on the conjugal covenant – that is to say, a conjugal family consisting of a father, a mother and their children below the age of majority,” contrary to the construction in its Article 8 § 1 case-law, which opens possibilities for broader family ties.

Another critical voice within the Court in this regard has been Judge Spielmann who, in several separate opinions, took issue with the little importance attached by the majority to the affective ties between adult sons/daughters and their mothers (See e.g., Shevanova v. Latvia, the case was however referred to the Grand Chamber and ultimately struck out of the list).

In any event, it looks like family life claims of the type articulated in A.A. are here to stay. The Court appears to have been increasingly confronted with applications coming from young adults claiming family life with their parents and siblings. Many of them live in the same household, sometimes along with other more distant relatives. For this reason, a clearer position on this issue from the Court in A.A.would have been much appreciated.

The Court ultimately does find a violation of Article 8 after a nicely-crafted reasoning aimed at determining whether the interference was justified. The Court concludes: “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” (para. 69).

One may then ask: what difference does it make to examine the case under private or family life if the outcome is ultimately the same? This is no doubt a valid point. Still, I think this may make a difference in terms of recognition in many cases.

This post by Lourdes Peroni first appeared on the Strasbourg Observers Blog and is reproduced here with permission and thanks

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: