Deportation and family rights

10 December 2020 by Alex Ewing

The European Court of Human Rights has found that the deportation of a Nigerian man from the United Kingdom violated his right to respect for private and family life guaranteed by article 8 of the European Convention on Human Rights. The applicant in Unuane v United Kingdom successfully argued that his removal from the UK was a disproportionate interference with family life because it separated him from his children. Though finding for the applicant, the Court rejected his attack on the compatibility of the Immigration Rules – an issue that as recently as 2016 the Supreme Court had authoritatively settled. The decision is of interest for the Court’s approach to the necessary balancing exercise to be carried out in the sensitive area of human rights challenges to the deportation of foreign criminals.

The facts

The applicant, Mr Unuane, is a Nigerian national who came to the UK in 1998. He has three children with his Nigerian partner, all of whom are (now) British citizens and one who has a rare congenital heart defect. In 2005 the applicant was convicted of obtaining a money transfer by deception and in November 2009 he and and his partner were convicted of offences relating to the falsification of thirty applications for leave to remain in the UK. He was sentenced to a period of five years and six months’ imprisonment, while his partner was sentenced to eighteen months’ imprisonment. Since the applicant was sentenced to more than twelve months, he was deemed to be a ‘foreign criminal’ and as such the Secretary of State was required to make a deportation order against him (s32(5) UK Borders Act 2007). An order was made against the applicant’s partner for the same reason and against two of his children as dependent family members (only one was a British citizen at the time).

In terms of section 33 such an order will not be made where removal of the foreign criminal would breach his rights under the Convention. When article 8 is raised in this context, the Secretary of State’s policy is to apply different criteria depending on the seriousness of the offence. According to paragraph 399 and 399A of the Immigration Rules, in cases where the ‘foreign criminal’ was sentenced to less than four years’ imprisonment, she should consider factors like whether the person has a genuine and subsisting parental relationship with a child under the age of 18 and whether deportation would be ‘unduly harsh’ on the child. However, in cases where an offender liable to deportation has been sentenced to at least four years’ imprisonment, paragraph 398 provides that only where there are ‘very compelling circumstances over and above those contained within paragraphs 399 and 399A’ will the public interest in deportation be outweighed by other factors. Since Mr Unuane had been convicted of an offence of more than four years, the more demanding criteria applied to him. The Secretary of State considered that there were no such very compelling circumstances.

The applicant appealed this decision, arguing that insufficient weight had been given to the interests of his children. The First Tier Tribunal dismissed the applicant’s claim, as well as his partner’s and his children’s, but the Upper Tribunal set aside the decision of the FTT and heard the case again. It determined that it was in the best interests of the children for the parents to remain in the UK: there was clear evidence that heart surgery for one of the children was not available in Nigeria; one child was a British citizen and could not be expected to leave; and it would be undesirable to split the siblings. Accordingly, the appeals of the applicant’s partner and children were allowable because the effect of separating them would be unduly harsh on the children. However, the UTT said that it was unable to allow the applicant’s appeal because Paragraph 398 of the Rules required that the public interest in deportation will only be outweighed in ‘very compelling circumstances over and above those contained within paragraphs 399 and 399A’. In other words, he had to show an even greater interest in remaining in the UK than his wife, with reference to the criteria in paragraphs 399 and 399A. They had both shown that they had a genuine and subsisting relationship with the children, but because his custodial sentence was longer, he had to show very compelling reasons over and above this genuine and subsisting relationship – which he had failed to do. Permission to appeal was refused by the Court of Appeal and the applicant was deported in 2018.

The judgment of the ECtHR

The applicant made ‘two distinct complaints’ before the Strasbourg Court. He complained that (i) his deportation constituted a disproportionate interference with his right to respect for private and family life; and (ii) due to the requirements of the Immigration Rules, the Upper Tier Tribunal was not able conduct a thorough assessment of the proportionality of his deportation.

Under the Convention, ‘the expulsion of an alien’ – insofar as it interferes with the right to respect for private and family life under article 8(1) – must be necessary in a democratic society and proportionate to a legitimate aim. The Court’s case-law, particularly in the case of Boultif (Boultif v Switzerland, no. 54273/00, §48 ECHR 2001-IX), has set out a number of factors that are relevant to this assessment. Some of these factors, such as ‘the nature and seriousness of the offence’ relate to the strength of the public interest in deportation, while others relate to the strength of the interests in private and family life. The best interests and well-being of the children is an important factor of the latter kind (see Uner v Netherlands [GC], no 46410/99, ECHR 2006-XII). With reference to the Boultif criteria, the Court examined the nature and seriousness of the applicant’s offence, noting that it was ‘at the more serious end of the criminal spectrum’. However, this factor had to be balanced with the best interests of the children. The Upper Tier Tribunal had recognised that it would be in the best interests of the children to remain in the UK with both of their parents, that the applicant’s partner and children needed him, and this need for parental support was ‘particularly acute’ in the case of the child with the serious medical condition. In light of these facts, the Strasbourg Court saw no basis for requiring the applicant to show ‘very compelling circumstances over and above’ those which had applied to his partner. It followed that the seriousness of the offence 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’ and accordingly his deportation was disproportionate and in violation of article 8.

The Court was not persuaded by the applicant’s broader argument that the Immigration Rules precluded the domestic courts and tribunals from applying the Boultif criteria in the assessment of whether deportation was necessary and proportionate. It accepted the Government’s submission that domestic law enabled all relevant factors to be taken into account. In Hesham Ali (Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60) the Supreme Court had considered whether a requirement of exceptionality in paragraph 398 precluded a proper proportionality assessment from being carried out. Lord Reed, for the majority, explained that the Immigration Rules set out the Secretary of State’s assessment of the public interest in the deportation of foreign criminals. Paragraph 398 made clear her position that there was a very strong public interest in deporting foreign offenders who have received sentences of at least four years and that this can only be outweighed in very compelling circumstances (‘exceptional circumstances’ before a 2014 amendment). Lord Reed held that in the article 8 balancing act considerable weight must be attached to the Secretary of State’s assessment on this point, but that this does not preclude other factors from being considered and the tribunal can still make its own assessment of proportionality – thus the compatibility of the Rules was upheld.

Before the Strasbourg Court, Mr Unuane had challenged the majority’s reasoning in Hesham Ali, relying on arguments made by Lord Kerr in his dissent that the different factors to be considered in an article 8 inquiry ought not to be given a pre-ordained weight. It was argued that the requirement for ‘very compelling circumstances’ in paragraph 398 curtailed the tribunal’s discretion to conduct a proper balancing exercising in which all the factors were weighed properly in the circumstances of the individual case. The Court rejected this argument. While agreeing that paragraph 398 ‘would appear to run directly counter to a proper assessment of whether an interference with the right to respect for family and private life…is justified,’ it noted the way in which the domestic courts had interpreted ‘very compelling reasons’ and the way in which it had been applied in practice. On this basis, the Court was satisfied that the Immigration Rules did not necessarily ‘preclude the domestic courts and tribunals from employing the Boultif criteria for the purpose of assessing whether an expulsion measure was necessary and proportionate.’

Comment

As noted by Lord Reed in Agyarko (Agyarko v Secretary of State for the Home Department [2017] UKSC 11) the history of the relationship between the Immigration Rules and article 8 has been a move away from broad discretion to detailed rule making. The present case underlines once again that the Rules do not provide a complete code for article 8 claims. Despite the seemingly restrictive language of the most recent iteration of the Rules, it remains the case that an assessment is required as to whether an adequate balance has been struck between the relevant interests. The Boultif criteria are intended to facilitate the application of article 8 in deportation cases by domestic courts and the weight to be attached to the factors will, of course, vary according to the specific circumstances of the case. The significance of the present case perhaps lies in the Court’s assessment that the non-violent offence of which the applicant had been convicted, while said to be ‘undoubtedly serious’, did not outweigh the best interests of the applicants’ children. Judge Turkovic in the earlier and similar case of Ndidi v United Kingdom (Ndidi v United Kingdom, no 41215/14, ECHR 2017) was critical of the majority in that case for not putting enough emphasis on the best interests of the children (Judge Turkovic dissent §8) and the Court’s judgment in the present case may be recognition of his concerns. It remains to be seen whether the domestic courts will view this case as being restricted to its particular facts or a reminder that significant weight ought to be attached to best interests of children even in the cases of those convicted of more serious offences.