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Problems with the Deportation of Asylum Seekers

Problems with the Deportation of Asylum Seekers

Deportation can be entrenched as one of the key instruments of immigration control, but is most commonly known as a symbol of and mechanism for exclusion. Yet, deportation has materialised as a form of state practice individual from other methods of expulsion.

It is common ground that no provision of asylum and deportation is stated in the ECHR.

Establishing Article 8 is a highly fact sensitive assessment. Whilst Article 8 does not enforce an absolute right on individuals, it does impose certain obligations on states. Disputes arising under this article will require the European Court of Human Rights (ECtHR) to stabilise two competing interests: on one hand, the freedom of individuals to manifest the right of a family life and private life, and on the other hand, the interest of the community.[1]

Importantly, while a person may be liable for deportation, they cannot be removed unless the grounds exist.[2] It is common ground that no provision of asylum and deportation is stated in the ECHR. Nevertheless, discretion with regards to negative deportation judgments on asylum seekers may still be limited under Article 8, and as a result, they may not be expelled from the ‘territory of the contracting state’.[3] This poses a great advantage on asylum seekers as, despite being foreign nationals, they may still gain the benefits of nationals.

The correlation between Article 8 and deportation first appeared in the case of Berrehab v Netherlands 3/1987/126/177. This case held that the close ties between the father and his daughter would, without a doubt, be ‘threatened by the proposed expulsion’.[4] Hence, a balance had not been achieved between the legitimate aim of encouraging the economic well being of the society and the means used to achieve that aim. Indeed, ‘necessary in a democratic state'[5] is the element that is disputed in almost all cases of deportation of asylum seekers. This notion will be explored further later on.

The new immigration rules

In June 2012, new immigration rules called the HC184 were introduced. The purpose was to set out the Secretary of State Home Department’s (SSHD) ‘position on proportionality’. The motive is that these new rules, proposed by the executive and approved by the legislature, will provide how the balance should be established between the public interest and individual rights. Hence, if the new rules are proportionate, a judgment taken in accordance with them must satisfy the requirements of Article 8. However, these rules have been subject to a number of criticisms. It has been argued that they do not provide a clear and comprehensive framework for considering private and family life in compliance with Article 8.

Indeed, ‘necessary in a democratic state’ is the element that is disputed in almost all cases of deportation of asylum seeker

Furthermore, in family life applications, the procedure is that they must be considered first under the rule, before the decision can be judged upon its compatibility with Article 8. This unnecessary duplication may give room to some inconsistency and uncertainty which does not comply with the intention of the SSHD.[6]

The concept of proportionality in Article 8

As established, Article 8 is a qualified right. The key test in assessing the reasonableness of a deportation order is whether the decision to deport is ‘proportionate’. The term ‘proportionality’ is not actually mentioned within the text of Article 8. Instead, it is a principle developed by the courts, for the purpose of interpreting and applying the Convention. Hence, the question of proportionality is a fact of intensive inquiry, as well as an evaluative exercise, where each case must be examined upon its own merits to avoid the possibility of uncertainty.

The ECHR does not guarantee the right of an alien to reside into a country. However, if there must be an interference with the rights under Article 8, the decision must be in accordance with the law and justified under Article 8(2) as necessary and proportionate to the legitimate aim pursued.[7] There is a significant amount of case law applying to the principle of proportionality in regards to deportation. Numerous problems arise, such as: how do you define a proportionate decision in cases where a ‘quasi-national’ has lived lawfully for most of his time in the host country, but is found guilty of a criminal offence?[8] As stated by in HK (Turkey) [2010] EWCA Civ 583:

…the number of years a potential deportee has been here is always likely to be relevant; but what is likely to be more relevant is the age at which those years began to run.[9]

There is a significant amount of case law applying to the principle of proportionality in regards to deportation.

Undoubtedly, fifteen years spent here as an adult are not the same as fifteen years spent here as a child. This shows that even a factor such as age must be distinguished very precisely before a decision is reached, including when during the lifetime of the applicant these years were spent in the host country. The issue of long residency may provide some protection under Article 8 even if the applicant does not have family in the host country. A deficiency in giving importance to age may cause legal uncertainty, which will be another issue added to the collection of problems under deportation cases.

The balancing exercise

The ECHR has dealt with Article 8 claims on frequent occasions, but the decisions have not always been stable in regards to the weight to be attached to the appropriate factors involved in the balancing exercise. These factors themselves recur time and again.[10] Boultif v Switzerland [2001] ECHR 493 gave guidance on factors that should be considered when a decision taken to deport, interferes with family life. These include:

…the nature and the seriousness of the offence committed by the applicant; the length of the applicant’s stay in the host country; the time lapse since the offence was committed and the applicant’s action during that period; the nationalities of the persons concerned; the applicant’s family situation, for example, the length of the marriage or other factors expressing the effectiveness of a couple’s family life; whether the spouse knew of the offence at the time when he or she entered into a family relationship; whether there are any children in the matter concern, and if so, what are their ages, and finally; the seriousness of the difficulties which the spouse is likely to encounter in the country of destination to which the applicant will be deported.[11]

Boultif sets out a pleasant structure. Though, a problem still occurs. It seems to focus more on the ‘family life’ aspect and little concern is given to the ‘private life’ factor. In relation to children, their age is all that is required and no indication is given where the courts will widen their deliberation, such as a child’s well-being and interest as a result of the deportation. After all, children tend to be highly dependent on their parents; hence their full interest must be taken into account as much as the difficulty a spouse is like to face in the country of deportation.

Uner v Netherlands(46410/99) [2006] 3 FCR 340 ECHR clarified these problems by adding two more criteria in addition to Boultif. These include:

…the best interest 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.[12]

The ECHR clearly provides integrated foreigners a privileged position by putting added emphasis on their personal and social integration when evaluating the proportionality of a deportation order. Also, the ‘interest’ of a child is now a prime focus.

This notion was reinforced in AA v UK(8000/08) Unreported September 20, 2011 (ECHR), where the criterion in Boultif and Uner were clearly adapted. As the applicant was a minor when he had committed the offence, the nature and seriousness of the act was not significant. The applicant had lived in the UK for 11 years, which is a considerable amount of years. During the time lapse since the offence and his conduct during that period, there were no further offences. Furthermore, the solidity of social, cultural and family ties he had in the UK were firm as he held a strong relationship with his family, he completed further education and was employed at a local authority. Therefore, the decision to deport would be disproportionate to the legitimate aim of the ‘prevention of disorder or crime’ and would not be ‘necessary in a democratic society’.

The ECHR has dealt with Article 8 claims on frequent occasions, but the decisions have not always been stable…

It is clear that Uner and Boultif generate an effective backbone to make a proportionate decision in deportation cases. However, to avoid missing out on any crucial elements, the two cases must be taken into account simultaneously.

On the other hand in Balogun v UK (60286/09) (2013) 56 EHRR 3 (ECHR), it was held that the applicant’s family ties were not strong enough to amount to ‘family life’. Nevertheless, his deportation would have a serious impact on his private life, given his length of stay in the UK since the age of three and the limited ties he had with Nigeria. However, looking at the applicant’s repeated history of drug related offences, the majority of which were during his adulthood, the interference with his right to respect to private life was not disproportionate. Clearly, it can be seen that the interest of the public good outweighs his right to respect for private life.

Legitimate aims

Article 8(2) lists a number of legitimate aims which allow the rights under Article 8(1) to be interfered with, provided it is in ‘accordance with the law’ and ‘necessary in a democratic society’. The state must then show that ‘the relevant legal provision pursued one of the aims'[13] under Article 8(2). The difference in aims ‘affect the factors to be taken into account and the weight'[14] accorded to them. A difficulty that may arise here is that the executives and the legislature are expected to make a decision between the rights of the asylum seeker and the pressing social needs, when it may be appropriate for the courts to make such choices instead, as the judiciary are more capable of recognising a judgment on democratic grounds.

It is obvious that a ‘democratic society’ is not an ideal world in which everybody thinks and behaves in the same manner.

The approach of having to assess the interference ‘in accordance with the law’ and ‘necessary in a democratic state’ seems to give rise to two advantages. First, it pushes the courts to define more carefully the nature of the obligation ‘to respect…’ under Article 8(1). Second, it places the justification process in its appropriate place and ‘subject to a formal and familiar structure'[15] under Article 8(2). This may not erase the appearance of arbitrariness, but it may diminish it. However, this structure, although full of advantages, still manages to cause some problems amid deportation cases. The requirement of ‘necessity’ is often confused with the concept of proportionality. It is obvious that a ‘democratic society’ is not an ideal world in which everybody thinks and behaves in the same manner. Therefore, necessity should be appropriately distinguished from reasonableness.

In the light of Article 8(2), that the right to respect for private and family life is not an absolute protection as states admittedly enjoy a certain margin of appreciation inherited from the sovereign right of the state. However, that margin is not limited either, which may cause a problem. States may have the tendency to abuse this power. The fact that there are no limitations may leave decisions as to proportionality open this risk. Therefore, the conditions which allow restrictions of the right to private and family life are to be interpreted strictly.[16]

The effect on family members

If a human rights case continues to the ECtHR, all the parties interested are usually taken into account. For Article 8 to apply there must be an interference with one of the rights it guarantees – in this context the right to respect for private and family life. In most cases, the focus has been on family life, with the strength and the nature of the family ties varying across different cases. The ways in which families are dealt with reflect many important assumptions under immigration and human rights law. Problems occur if family based situations and these important assumptions are in conflict. Deportation unavoidably affects the applicant’s family unity. Restrictions in the establishment of ‘family life’ in another country may constitute the following: language barriers, the inability to adapt to living abroad, their relationship with other family members, or any cultural, religious, social, health or employment issues.[17] As seen in Berrehab, the ECtHR accepted the proposition that deportations which lead to the separation of families across international borders are an intervention with family ties.

The inability to adapt to the country of deportation is the main problem which families face, especially spouses. Having to leave their established life in the host country and migrate to an unfamiliar destination will seemingly breach Article 8. In Beldjoudi v France 12083/86, judgment of 26 March 1992, the wife of the deportee was expected to move out of the host state with him to Algeria. As a result of her removal, the courts envisaged the consequence of her moving and found that the wife was likely to face great difficulty in adjusting to the country of destination. Hence, the courts established that the interference in question may imperil the unity or even the very existence of the marriage and accordingly ruled that enforcement of the deportation order would be disproportionate to the ‘legitimate aim’ pursued.

The ways in which families are dealt with reflect many important assumptions under immigration and human rights law.

This demonstrates that the protection against deportation found in Article 8 raised an issue of ‘interference’, not just a mere separation directly caused by the government, resulting in a situation which puts the family unity under peril which defeats the purpose of Article 8.

Family life v private life

A problem faced in regards to applying Article 8 to deportation cases, is that after the case of Moustaquim v Belgium (12313/86) [1991] ECHR 3 the ECtHR limited its analysis of Article 8 by leaning more towards focusing on the ‘family life’ aspect of the claim rather than the ‘private life’ factor. A dissenting judgment in Boughanemi v France (1996) 22 EHRR 228 stated that this manner was not always rational. This was due to the fact that some applicants may not have a ‘family tie’ and are hindered by a method which does not give adequate weight to the applicant’s personal circumstances. It further stated that aliens integrated within society should be treated no differently from nationals.[18] Consequently, this may lead to legal uncertainty as the courts become unclear as to which aspects of the applicant’s personal circumstances should be given weight when deciding whether deportation is proportionate, which could in turn interfere with the decision making process. This is a problem which will now be explored further.

This criticism was unraveled in Uner by the ECtHR. The court stated that the sum of social ties between immigrants and the community in which they live constitutes part of the concept of ‘private life’. Thus, the court considered that the removal of an immigrant will in fact be an interference with their right to respect for private life.[19] So how is private life differentiated? D v UK [1997] ECHR 25 stated that an interference with ‘private life’ is where there are ‘sufficiently adverse effects on moral and physical integrity’.[20] In this case, the applicant was in the final stages of a terminal illness. The judges stated that even mental health must be regarded as a ‘crucial part of private life associated with moral integrity’.[21] This goes to show that the dissenting judgment in Boughanemi was taken into account across many cases, and debated until ‘private life’ was given as much importance as ‘family life’. Yet, it has been a concept that has not been grasped easily by the courts.

Some judges disapprove on the reliance exclusively on the right to family life and call it ‘somewhat artificial’ and ‘too formalistic’. For example, in Nasri v France 18/1994/465/546, there were clear family ties on which the court based its judgment on, and the statement on private life remained obiter dicta. Similarly, judges concluded in C v Belgium 35/1995/541/627 that private life should ‘serve as a separate protection against deportation’ regardless of the family ties of the applicant. Again in Nasri, there was a hesitancy to give ‘private life’ as much importance as ‘family life’.

Some judges disapprove on the reliance exclusively on the right to family life and call it ‘somewhat artificial’ and ‘too formalistic’.

Thus, the problem which arises is why there is a favoritism towards ‘family life’? Article 8 does not state in any way how much attention must be given towards the two respected rights. It does not mention that a decision must lean towards ‘family life’ rather than ‘private life’. In fact, no other binding legislative instrument does. Fortunately, the latter case cleared this problem slightly and ‘private life’ was recognised as a right of its own.

Ideally, the reference to both family and private life must feature in determining the proportionality of a deportation order. However, the courts have been reluctant to quash a deportation order on the grounds of violation of private life alone. The ECtHR in Ezzouhdi v France , 13 February 2001, it was stated that the expulsion of the immigrant was an interference with his private life as well as his family life,[22] but where breach of family life was greater. Again, legal uncertainty arises in the hesitancy to abandon ‘family life’ as the relevant right, where the formal bar to deportation was ‘family life’, but the obvious interference was with social and other ties outside the family.[23] This is another example where ‘private life’ is not given credit, demonstrating the struggle courts face in adopting Article 8 in deportation cases efficiently.

It is particularly relevant in situations where the deportee suffers from social exclusion and cannot be said to enjoy a private life in the form of real social integration, but nonetheless, linked by formal family ties to a national or long term resident, whose relocation is not an option.

A clearer picture was seen when issues on ‘private life’ were integrated within family life in the ECtHR’s adoption of the Boultif criteria, in regards to the impact a deportation has on the immigrant’s family life. In Ezzouhdi, the court implied that the essential social and family ties of the immigrant were in the current country of France, rather than in the country of deportation, ruling that the interference was excessive to its aim and therefore a breach of Article 8. Slowly, the courts are willing to consider ‘private life’ and ‘family life’ in an equal equation.

The notion of ‘private life’ is broad enough to cover cases related to the family but which do not affect its internal unity.

In 2003, a dramatic adjustment took place in Slivenko v Latvia (48321/99) [2003], where the ECtHR relied entirely on the private life aspect as a bar to deportation not only in the given facts, but also in outlining the rights breached under Article 8. Reliance on the right to ‘family life’ could not be taken into account as the aim for deportation was not to interfere with the family unity. As the courts analysed the aspects of the applicant’s private life, it discovered that expulsion would disturb the network of personal, social and economic relations, which they had developed since birth and constituted the private life of the individual. Therefore, their removal created a disruption of their private life. This case presented a challenge to the courts because they had no option but to equally distinguish the scope of ‘private life’ and ‘family life’, which effectively abides by the positive obligations of Article 8 more reasonably.

The notion of ‘private life’ is broad enough to cover cases related to the family but which do not affect its internal unity. To recognise that ties must go beyond family links is important to immigrants who, despite being well integrated into the society of the host country and sometimes over a very long period of time, may have little by way of family links with nationals. Since migrants sometimes enter into marriage or any other family ties, this is only much later after they are combined in professional or business life, which forms part of their private life. It is not appropriate to rely on the protection of ‘family life’ as the immediate social structure.[24]

Removal of the family unit

In circumstances where an entire family is expected to be removed from the host country, it is not exactly the right to respect for family life that is breached because it allow the family unit to reamin intact after relocation. Of course, it may face hardships that cannot be ignored, but the case is not of discruption to family life alone. Arguably, even when a whole family is removed the hardship it may face may lead to its breakdown.[25] Simultaneously, family life cannot be subsumed into private life, even for asylum seekers.

Conclusion

The fact that the right of an alien to reside into a country, is not guaranteed within the ECHR, let alone Article 8, makes it quite challenging to discover the existence of a ‘family life’ or a ‘private life, in particular the interpretation of ‘proportionality’ which is left to the discretion of the courts. A suggestion that the recognition of such right by the European states, by bringing them under the protection of the ECHR through one or two additional protocols may help to improve the legal status of aliens in Europe. Social stability would be weakened rather than promoted if protection is limited to family life. Hence, it is crucial that the ECtHR has not embraced the right to family life into the right to private life, and continues to retain the two alongside, as each have the potential to capture different classes of people who need its protection.

  • [1] Lambert H. ‘The European Court of Human Rights and the right of refugees and other persons in need of protection to family reunion’ [1999] International Journal of Refugee Law 11(3)

    [2] Immigration and Asylum Act 1999, s3(5)

    [3] Einarsen.T ‘The European Convention on Human Rights and the Notion of an Implied Right to de facto Asylum’ [1990] 2(3) International Journal of Refugee Law 361-389

    [4] Sherlock.A ‘Deportation of Aliens and Article 8 ECHR’ [1998] 23 European Law Review (Human rights survey) 62-75

    [5] European Convention on Human Rights, Article 8(2)

    [6] http://www.freemovement.org.uk/2012/08/15/theresa-may-qualifies-a-qualified-right/ accessed: 04 June 2013

    [7] Dalia v. France, 154/1996/773/974 judgment of 19 February 1998

    [8] Gina Clayton, Immigration and Asylum Law (Fifith edition, Oxford University Press, 2012)

    [9] SSHD v HK (Turkey) [2010] EWCA Civ 583 [35] [10] Stedman.AJ and Hawkin.B, A Practical Guide to Presenting Asylum and Human Rights Claim (2006, Tottel Publishing Ltd)

    [11] Boultif v Switzeland (54273/00) [2001] ECHR 493, paragraph 48

    [12] Uner v Netherlands ,paragraphs 59, 58

    [13] Foster.S, Human Rights and Civil Liberties (Second edition, Pearson Education, 2008) 57

    [14] Nielsen.C ‘Preventing disorder and protecting family and private life’ [2011] 70(1) Cambridge Law Journals 12-14

    [15] Warbrick.C ‘The structure of Article 8’ [1998] 1 European Human Rights Law Review 32-44

    [16] Groussot.X ‘UK Immigration Law under Attack and the Direct Application of Article 8 ECHR by the ECJ’ [2003] 3 Non-State Actors and International Law 187-200

    [17] Stevens.D, UK Asylum Law and Policy (Sweet and Maxwell Ltd, 2004)

    [18] Beldjoudi v France No. 12083/86, judgment of 26 March 1992

    [19] Uner v Netherlands (46410/99) [2006] 3 FCR 340 ECHR, paragraph 59

    [20] D v UK 30240/96 [1997] ECHR 25, paragraph 46

    [21] D v UK 30240/96 [1997] ECHR 25, paragraph 47

    [22] Ezzouhdi v France no. 47160/99, 13 February 2001, paragraph 26

    [23] Mokrami v France (2003) paragraphs 19, 23, 33 and 36

    [24] Niemietz v Germany [1992] ECHR 80, paragraph 29

    [25] Beldjoudi v France (12083/86) [1992] ECHR 42

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