Information Note on the Court’s case-law 245
November 2020
Unuane v. the United Kingdom - 80343/17
Judgment 24.11.2020 [Section IV]
Article 8
Article 8-1
Respect for private life
Deportation after conviction for falsifying immigration documents running counter to best interests of applicant’s minor children: violation
Facts – The applicant, a Nigerian national, was deported after a conviction for offences relating to falsification of immigration documents. The applicant appealed unsuccessfully. His Nigerian partner was convicted of the same offence and, along with their three minor children, was initially subject to a deportation order as well. Unlike the applicant, their appeals were allowed, in light of the best interests of the children, and they remained in the United Kingdom.
Law – Article 8: The principal issue was whether the applicant’s deportation was “necessary in a democratic society”, or in other words, whether the deportation order had struck a fair balance between the applicant’s Convention rights on the one hand and the community’s interests on the other.
The criteria for carrying out this assessment, which emerges from the Court’s case-law and was spelled out in the Boultif and Üner judgments (Boultif v. Switzerland, 54273/00, 2 August 2001, Information Note 33; Üner v. the Netherlands [GC], 46410/99, 18 October 2006, Information Note 90), were primarily meant to facilitate the application of Article 8 in expulsion cases by domestic courts. In applying these criteria, the respective weight to be attached to them would inevitably vary according to the specific circumstances of each case.
(a) The Immigration Rules
In the light of the relevant domestic case-law, 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.
(b) The applicant’s deportation
However, in the present case the Upper Tribunal had 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 had merely noted that it “cannot allow his appeal” on the basis that 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 fell to the Court, in exercise of its supervisory jurisdiction, to give the final ruling on whether an expulsion measure was reconcilable with Article 8.
The applicant had been convicted of offences relating to the falsification of some thirty applications for leave to remain in the United Kingdom, for which he had been sentenced to five years and six months’ imprisonment. The offence was undoubtedly serious, as evidenced by the length of the prison sentence. Furthermore, it had not been his first criminal conviction in the United Kingdom: he had previously been convicted of obtaining a money transfer by deception.
That being said, the Court had tended to consider the seriousness of a crime 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. It had 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 was not in and of itself determinative. Rather, it was just one factor which had to be weighed in the balance, together with the other criteria in Boultif and Üner.
The Upper Tribunal had weighed those other criteria in the balance, albeit exclusively with reference to the applicant’s partner. Having concluded 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 had 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 the applicant’s partner’s appeal had been essentially the same as those relevant to his own, his appeal had been dismissed on the sole basis that there had been no “very compelling circumstances” over and above those which had applied in respect of his partner.
This conclusion was not reconcilable with Article 8 of the Convention. The Upper Tribunal had acknowledged the strength of the applicant’s ties to his partner and children, all of whom would stay in the United Kingdom. It had also acknowledged that his partner and children needed him, and this need for parental support had been particularly acute in the case of their oldest child on account of his medical condition and forthcoming surgery. Finally, it had accepted that it was in the best interests of the children for him to remain in the United Kingdom, a factor which 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, in the circumstances of the present case the seriousness of the particular offence(s) committed by the applicant were not of a nature or degree capable of outweighing the best interests of the children so as to justify his expulsion. The applicant’s deportation had therefore been disproportionate to the legitimate aim pursued (the prevention of disorder and crime) and as such had not been “necessary in a democratic society”.
Conclusion: violation (unanimously).
The Court also declared the complaint under Article 13 read together with Article 8 inadmissible (manifestly ill-founded), on the basis that the applicant had been able to appeal against the deportation order and, in so doing, argue that the Tribunal had not considered all factors relevant to the Article 8 proportionality assessment.
Article 41: EUR 5,000 in respect of non-pecuniary damage.
(See also Krasniqi v. Austria, 41697/12, 25 April 2017; Guide on the case-law of the European Convention on Human Rights: Immigration)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy