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Strasbourg finds Nigerian man’s deportation violated article 8

Written by
Asad Ali Khan
Date of Publication:
17 December 2020

Unuane v United Kingdom80343/17 [2020] ECHR 832 (24 November 2020): In the case of Mr Unuane, a Nigerian national, who had been deported from the UK after a conviction for offences relating to falsification of immigration documents, the ECtHR found a violation of article 8 of the ECHR. Mr Unuane was deported after a conviction for offences relating to falsification of 30 applications for leave to remain in the UK and he was sentenced to five years and six months' imprisonment, his appeal was unsuccessful. His Nigerian partner was also convicted of the same offence and, along with their three minor children, she was initially subject to a deportation order as well. Unlike Mr Unuane, their appeals were allowed, owing to the best interests of the children, and they remained in the UK. The SSHD was obliged to make a deportation order against Mr Unuane section 32(5) of the UK Borders Act 2007. The SSHD considered that he was a "foreign criminal" as defined by section 32(1) of the 2007 Act and accordingly his deportation, by virtue of section 32(4) of the 2007 Act, was deemed to be conducive to the public good. The FTT dismissed his appeal but the UT found that the FTT had materially erred in law. The UT found that "the wife needs him and she is staying" and "the boys need him". However, it held that there were no "very compelling circumstances" and it dismissed the appeal. Reliance placed in Hesham Ali v SSHD [2016] UKSC 60 failed to satisfy the Court of Appeal which refused permission to appeal in 2017.

Mr Unuane was deported from the UK on 27 February 2018. For the ECtHR, the principal issue was whether Mr Unuane's deportation was "necessary in a democratic society", or in other words, whether the deportation order had really struck a fair balance between his Convention rights on the one hand and the community's interests on the other. Notably, the criteria for carrying out this assessment, which became apparent from the court's case-law and was spelled out in Boultif v Switzerland 54273/00 and Üner v the Netherlands [GC] 46410/99 which were meant to facilitate the application of article 8 in expulsion cases by domestic courts. Further in applying these criteria, the respective weight to be attached to them would inevitably vary according to the specific circumstances of each case. Part 5A (sections 117A to 117D) of the Nationality, Immigration and Asylum Act 2002, as inserted by section 19 of the Immigration Act 2014 which came into force on 28 July 2014, applies where a court/tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's right to respect for private and family life under article 8. In cases concerning the deportation of foreign criminals a court or tribunal must have regard to the considerations listed in section 117C. There were also changes to the deportation provisions of Part 13 of the Immigration Rules. Prior to Part 5A, in July 2012 the Immigration Rules were amended to include the then "new rules" on article 8.

Domestic authorities

The ECtHR traced the working of the new deportation rules to MF (Nigeria) v SSHD [2013] EWCA Civ 1192 where the Court of Appeal disagreed with the UT's view in MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC) and also Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) that judges should adopt a two-stage approach by (i) considering whether a claimant was able to benefit under the applicable provisions of the rules designed to address article 8 claims, and (ii) where the claimant did not meet the requirements of the rules it would then be necessary to conduct an assessment of article 8 applying the criteria established by law. The Court of Appeal, however, decided that the new rules constituted a "complete code". In Hesham Ali, Lord Reed was uncomfortable with the proposition that the "rules alone, govern appellate decision-making" and Lord Thomas encouraged the use of the "balance sheet" approach to deportation weighing up the "pros" and the "cons". In Agyarko v SSHD [2017] UKSC 11, Lord Reed said that cases are not "to be approached by searching for a unique or unusual feature" and "the test is one of proportionality", adding that references "to exceptional circumstances in the European case law means that, in cases involving precarious family life, 'something very compelling … is required to outweigh the public interest', applying a proportionality test." In NA (Pakistan) v SSHD [2016] EWCA Civ 662, it was held that the domestic courts had repeatedly determined that the legislative provisions in Part 5A had to be interpreted and applied to produce a result that was, in the individual case, compatible with article 8.

Mr Unuane's complaint

Mr Unuane argued that the UK authorities failed to carry out an adequate assessment of the proportionality of his removal, since they did not properly balance his right to respect for his private and family life with the public interest in deportation. In his view, article 8 required an assessment of whether an interference was in accordance with the law and was necessary in a democratic society for one of the aims in article 8(2) – and whether an interference was "necessary" in turn required a consideration of whether an interference was "proportionate". Notably, a balancing exercise was required when applying article 8(2) and section 117C and paragraph 398 were inimical to such an approach.

Mr Unuane accepted that the "balance-sheet approach" had the endorsement of the Supreme Court. He submitted that in his case the Tribunal had not carried out such a "free-wheeling" balancing exercise and the exercise carried out by the authorities was quite different. Rather than give thorough and careful consideration of the proportionality test required under the ECHR, they had inquired whether there were any very compelling circumstances over and above those identified in Exceptions 1 and 2.

Mr Unuane could only rely on Exception 2, requiring deportation to be "unduly harsh" on a British child with whom he had a genuine and subsisting relationship. However, as he had to show very compelling circumstances over and above that exception, he could only succeed if the impact of his deportation on his son was "extra unduly harsh". He submitted that such a concept lacked the clarity necessary to protect the individual against arbitrary interference. Furthermore, for persons sentenced to more than four years the risk of re-offending could only be taken into account if it was a "very compelling circumstance" and this criteria was not consistent with article 8(2).

He argued that pursuant to section 117C and paragraph 398, the domestic decision-maker was unable to adjust the weight of the public interest according to the nature and the seriousness of the crimes involved. All foreign criminals with sentences of up to four years were lumped together in one group and those with sentences of over four years were lumped together in another group and there was no scope for the public interest to vary within either group, irrespective of the length of the sentence, the seriousness of the crime, or the risk of reconviction. He submitted such an approach was incompatible with the difficult evaluative exercise required by article 8. He relied on the dissenting judgment of Lord Kerr in Hesham Ali, where his Lordship had made it quite clear that the Convention did not permit a national policy which limited or dictated the weight to be given to the Boultif factors in the article 8 balancing exercise. In Lord Kerr's opinion the quest to strike the appropriate balance should not be encumbered by pre-emptive considerations of exceptionality.

Mr Unuane argued that in any event his deportation had disproportionately interfered with his right to respect for his family life. Carrying out the proper balancing exercise, he had enjoyed a genuine and subsisting relationship with his children established at a time when he had leave to remain. The children were going to suffer financial hardship on account of his deportation; they would also suffer emotionally on account of his absence, especially his eldest son, who would need further heart surgery in the foreseeable future; and their mother would also suffer emotionally, and Mr Unuane had been at low risk of re-offending.

The SSHD argued that paragraph 398 and section 117C were designed to reflect the public interest in the deportation of serious and/or persistent offenders, while recognising that there would be cases where the making of a deportation order would be incompatible with article 8 of the Convention. On the government's analysis, their proper application was consistent with the principles of the ECtHR and facilitated the striking of a fair balance in individual cases. The SSHD said that by providing a framework for the domestic decision-maker, those provisions also proved a safeguard against arbitrariness and inconsistent decision-making.

The Strasbourg Court (ECtHR, Fourth Section)

The recalled that in Boultif it elaborated the relevant criteria which it would use in order to assess whether an expulsion/deportation measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria are the following (i) the nature and seriousness of the offence committed by the applicant, (ii) the length of the applicant's stay in the country from which he or she is to be expelled, (iii) the time elapsed since the offence was committed and the applicant's conduct during that period, (iv) the nationalities of the various persons concerned, (v) the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life, (vi) whether the spouse knew about the offence at the time when he or she entered into a family relationship, (viii) whether there are children of the marriage, and if so, their age, and (ix) the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.

In Üner, the court made explicit two further criteria implicit in those identified in Boultif (i) the best interests 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 he is to be expelled, and (ii) the solidity of social, cultural and family ties with the host country and with the country of destination. All of these factors should be taken into account in all cases concerning settled migrants who are to be expelled and/or excluded following a criminal conviction. Mr Unuane made two distinct complaints. First, that due to the requirements of paragraphs 398 and 399 of the Immigration Rules, the UT was not able to conduct a thorough assessment of the proportionality of his deportation. Secondly, that his deportation disproportionately interfered with his right to respect for his family and private life.

(i) The Immigration Rules

First, the ECtHR held that 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. The court stressed that the criteria which emerge from its case-law and which are detailed in the Boultif and Üner judgments are primarily meant to facilitate the application of article 8 in expulsion cases by domestic courts. Further, the court reiterated that nevertheless, in applying these criteria, the respective weight to be attached to them will inevitably vary according to the specific circumstances of each case. After evaluating its role in giving the final judgment on whether an expulsion measure is reconcilable with article 8, the court said that:

80. In the present case the applicant argues that the Tribunal was precluded by the Immigration Rules from conducting such an assessment and that the Tribunal's only discretion outside the Rules would be to consider whether there existed "exceptional circumstances" or, following the 2014 amendment, "very compelling circumstances". As Lord Kerr observed, such a requirement would appear to run directly counter to a proper assessment of whether an interference with the right to respect for family or private life on the part of those who do not come within one of the exemptions is justified.

81. That being said, the domestic courts have confirmed, and the Government has reiterated before this Court, that the Immigration Rules and section 117C of the Nationality, Immigration and Asylum Act 2002 provide scope for all relevant factors to be taken into account in the proportionality assessment and that, in considering whether "exceptional" or "very compelling circumstances" exist, the authorities should consider the proportionality test required by this Court.

In light of the cases of MF (Nigeria), NA (Pakistan), Hesham Ali, and Agyarko the court said that it did not consider that the Immigration Rules had necessarily precluded the domestic courts and tribunals from employing the Boultif criteria in order to make an assessment on whether an expulsion measure was necessary and proportionate. Indeed, in NA (Pakistan) it was the view of the Court of Appeal that a court/tribunal applying the tests must "heed the guidance contained in the Strasbourg authorities" as the scheme of Part 5A of the 2002 Act and paragraphs 398-399A of the rules was "to ensure compliance with the requirements of article 8 through a structured approach, which is intended to ensure that proper weight is given to the public interest in deportation whilst also having regard to other relevant factors as identified in the Strasbourg and domestic case-law".

Furthermore, in Hesham Ali the Supreme Court had judged that it is the duty of appellate tribunals, as independent judicial bodies, to conduct an independent "assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law", although it acknowledged that in doing so "they should attach considerable weight to [the SSHD's policy adopted]." Thus, despite Mr Unuane's persistence, the late Lord Kerr's dissenting judgment did not tip the scales in his favour. Next, the court turned its attention to the issue of his deportation.

(ii) Mr Unuane's deportation

In the present case the UT had neither made any substantial further findings adverse to Mr Unuane nor conducted a separate balancing exercise as warranted by the ECtHR's article 8 case law. In fact, the UT had noted that it "cannot allow his appeal" on the ground that the reformulated Immigration Rules had "imposed requirements" so as to identify "very compelling circumstances" going over and above the usually accepted genuine and subsisting parental relationship with the children, something which could not establish.

So the court – in exercise of its supervisory jurisdiction – gave the final ruling as regards whether the expulsion measure in question was reconcilable with article 8. It was clear enough that Mr Unuane's crime was undoubtedly serious, as shown by the length of his prison sentence. Equally, it was not his first criminal conviction in the UK; previously he was convicted of obtaining a money transfer by deception and was sentenced to a period of unpaid work and ordered to pay a fine. On the other hand, the ECtHR tends to consider the seriousness of a crime in the context of the balancing exercise under article 8; not merely by reference to the length of the sentence but rather by reference to the nature and circumstances of the particular criminal offence or offences committed by the individual in question and their impact on society as a whole. In that regard – in line with A.W. Khan v UK 47486/06 and Maslov v Austria [2009] INLR 47 – big crimes of violence and drug-related offences lie at the most serious end of the criminal spectrum. The mere fact that the offence committed is at the more serious end of the criminal spectrum is not in and of itself determinative of the case. Rather, it is just one factor which has to be weighed in the balance, together with the other criteria which emerge from the judgments in Boultif and Üner. Weighing all this up, the ECtHR held that:

88. In the present case the Upper Tribunal did weigh those other criteria in the balance, albeit exclusively with reference to the applicant's partner. After all, having concluded that they had no hesitation in saying 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 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 applicant's partner's appeal were essentially the same as those relevant to his own, his appeal was dismissed on the sole basis there were no "very compelling circumstances" over and above those which had applied in respect of his partner.

89. In the Court's view, this conclusion is not reconcilable with article 8 of the Convention. The Upper Tribunal itself acknowledged the strength of the applicant's ties to his partner and children, all of whom would stay in the United Kingdom. It also acknowledged that his partner and children needed him, and this need for parental support was particularly acute in the case of D on account of his medical condition and forthcoming surgery. Finally, it accepted that it was in the best interests of the children for him to remain in the United Kingdom, a factor which, according to the Court's case-law, must be accorded significant weight (see Krasniqi v Austria, no. 41697/12, § 47 25 April 2017). Having regard to these careful and detailed findings by the Upper Tribunal, which must carry significant weight in the overall assessment of proportionality, the Court considers that in the circumstances of the present case the seriousness of the particular offence(s) 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.

The court therefore considered that Mr Unuane's deportation was disproportionate to the legitimate aim pursued and as such was not "necessary in a democratic society".

Comment

The judgment in MF (Nigeria) was the first to shed light on the new article 8 rules which were a major shake up in the field. These changes came about under the watch of by then home secretary Theresa May's very fierce campaign to ensure that foreign criminals were quickly dealt with and were unable to rely on article 8 to escape deportation. As a matter of policy, exceptional cases – those capable of succeeding on article 8 outside the rules – should be numerically rare. This case makes an interesting comparison with Ndidi v UK 41215/14 where the ECtHR found no violation of the article 8 rights of a Nigerian who had convictions for robbery, GBH, burglary, theft, impersonating a police officer and also the supply of Class A drugs. The court found that the FTT and in fact all domestic decision-makers had given thorough and careful consideration to the proportionality test required by article 8 and the ECtHR agreed with the UK courts and authorities that his deportation was justified. This demonstrates that crimes of violence and drug-related offences lie at the most serious end of the criminal spectrum and there was little sympathy in Strasbourg for Mr Ndidi in comparison to Mr Unuane who was not a violent criminal or a drug dealer but whose offences related to falsification of immigration documents (a significant crime nonetheless).

Despite the positive result for Mr Unuane as to the disproportionality of his deportation, it is nonetheless the case that the ECtHR accepted that government's point that the rules and the terms of section 117C provide scope for all relevant factors to be taken into account in the proportionality assessment and that, in considering whether "exceptional" or "very compelling circumstances" exist, the authorities should consider the proportionality test required by the Strasbourg jurisprudence.