The media have been much exercised with the way that 'foreign criminals', who are now liable to 'automatic' deportation, are able to invoke the European Convention on Human Rights in order, quite often, to prevent deportation from going ahead. It is actually six years since the 'foreign prisoners scandal' caused the resignation of Charles Clarke as Home Secretary, and moved his successor, John Reid, to declare his department "not fit for purpose". Along the way we have had 'Catgate' and the kerfuffle about (not) extraditing Abu Qatada to Jordan, illustrating once again how a Home Secretary can come a cropper over immigration. Immigration judges (as they were called until recently) have not been immune to press criticism either. In its End the Human Rights Farce campaign, the Sunday Telegraph named and shamed 'soft touch' judges who allowed appeals against deportation on the basis that the appellant had sired children in this country.
It may surprise the British press to learn that the Strasbourg court has been getting quite tough on this issue. In the recent case of Antwi v Norway (App. No. 26940/10), a Ghanaian man married a Norwegian citizen of Ghanaian origin and, on the strength of a forged Portuguese passport and birth certificate, obtained permits to work and reside in Norway as an EEA national. Eventually the forgery came to light, and the Norwegian authorities proposed to expel Mr Antwi, with a five-year prohibition on returning.
Having been through the appeal process in Norway, Mr Antwi's case came before the First Section of the ECtHR, which noted that, while Mrs Antwi had lived in Ghana until the age of 17, the couple's daughter, born in Norway in 2001, would find it difficult to adapt to life in Ghana if she had to go there with her parents, and to re-adapt later to life in Norway as an adult. (As the daughter is a Norwegian citizen but not a citizen of the European Union, the Zambrano principle would not come into play here.)
What the Strasbourg court held might seem surprising, in the light of our domestic case law. There were said to be no "insurmountable obstacles" either to prevent the whole family settling in Ghana, or to prevent regular contact being maintained between the father in Ghana and the mother and daughter in Norway. Well, we all know that "insurmountable obstacles" is not the right test. The right question to ask is whether it is "reasonable" to expect the rest of the family to up sticks and leave the country along with the person who is being expelled.
In VW & MO (Article 8 – insurmountable obstacles) Uganda  UKAIT 21 (IAS Update vol. 11, no. 8), Dr Storey tried to reconcile the two, explaining that the phrase 'insurmountable obstacles' is used by the Strasbourg Court interchangeably with expressions such as the 'reasonableness' of the whole family relocating, or the 'seriousness' of the consequences for the family, when assessing the proportionality of removal. While acknowledging the erudition of Dr Storey's survey of the jurisprudence, Lord Justice Sedley did not endorse the interchangeability of these phrases when VW went on appeal as VW (Uganda) & AB (Somalia)  EWCA Civ 5 (Update vol. 12, no. 4). Instead, the test was said to be, not whether there are insurmountable obstacles to family life being resumed in the country of removal, but whether the settled spouse can reasonably be expected to follow the removed spouse to the country of removal. His Lordship seems to have taken the pragmatic view that, albeit in the empyrean atmosphere of Strasbourg an 'insurmountable obstacles' test may be no more stringent than a 'reasonability' test, the words themselves do not suggest such a similarity, and in the less rarefied atmosphere of the Tribunal, immigration judges might well set the threshold too high if they used the language of 'insurmountable obstacles'.
In LD (Article 8 – best interests of child) Zimbabwe  UKUT 278 (IAC), Mr Justice Blake had no doubt that the "insurmountable obstacles" test had no application in this country, and that it had been a mistake to apply it at the First-tier. "This was a plain misdirection", he fulminated. "It is somewhat unfortunate to find such a glaring error being made in a decision dating from December 2009 by which time there had been an abundance of jurisprudence making it plain that the issue whether removal of a family member interferes with the family life of others lawfully settled here for many years is judged by whether it is reasonable to expect the other family members to relocate."
Blake J had no more time for the notion that family life can be maintained by contact between members of the family living in different countries. That the First-tier judge should have talked about the appellant maintaining contact from Zimbabwe with his wife and children in this country "in the normal manner" was described as 'extraordinary'. "It is not normal", insisted the President of UTIAC, "for family life to be enjoyed by correspondence and occasional visits." There was no such objection by the European Court in Antwi, which also observed that there were no "exceptional circumstances" in relation to the child, who had no special care needs, and whose mother would be able to provide satisfactory care on her own.
Exceptional circumstances? It would be a bold Tribunal judge who made that part of his proportionality assessment. As for the "insurmountable obstacles" test, that has yet again been applied by the European Court in Celal Akbulut v UK (App. No. 53586/08)  ECHR 784. They found that there were no such obstacles to the applicant's British wife joining her husband in Turkey, as relocation would not be "impossible or exceptionally difficult." If that is a gloss on "insurmountable obstacles", then the latter certainly appears to be a more stringent test than whether it is reasonable to relocate.
In Akbulut the Strasbourg court was particularly impressed by the seriousness of the only crime of which the appellant had been convicted, but for which he received a sentence of 14 years' imprisonment – supplying large quantities of heroin. This also supplied "compelling reasons" for deporting him, despite his 25 years' continuous residence in the United Kingdom and the presence here of his British wife and four sons, albeit the latter were now adults.
If one particularly heinous offence can merit deportation, so can a history of lesser offending. That was so in another recent case, Balogun v UK (App. No. 60286/09)  ECHR 614, despite the fact that the applicant, now aged 25, has apparently been here since the age of 3. The decision to deport him was triggered by a sentence of three years' imprisonment for possessing Class A drugs with intent to supply, but there had been previous convictions for similar offences. The applicant enjoyed no family life here for the purposes of Article 8, but a British reader might think that a 'home grown-criminal' (to use an expression coined by Immigration Judge Charles Bennett) who had spent the majority of his childhood and all of his youth in this country would be protected from expulsion on private life grounds by Maslov v Austria. Not a bit of it. The European Court distinguished this case, in which all but one of the applicant's offences were committed after he had turned 18, from Maslov, in which the applicant's offences could be characterized as 'juvenile delinquency'.
The question did not arise whether Mr Balogun was actually a "settled migrant", although his immigration status seems to have been uncertain. In ED (Ghana)  EWCA Civ 39, the claimant had been living here since the age of 6, but without lawful status. That meant, said the Court of Appeal, that Maslov v Austria could not avail him, since he was not a 'settled migrant'. Therefore, "very serious reasons" were not needed to justify his expulsion.
At this rate, the Government will not need to legislate to ensure that Tribunal judges get tough on foreign criminals who invoke the Human Rights Act. The jurisprudence of both the Strasbourg court and our own Court of Appeal may do the job.