The issue of private life comes up frequently in the context of the enforcement of immigration and asylum legislation. Decisions taken by immigration and asylum authorities may have the effect of separating family members or denying entry to family members who seek to come to live with relatives in the respondent country.
The court has held that there is no right for a non-national to enter or reside in a particular country under the Convention. However, the refusal to admit may raise Convention rights.
Applications and orders to deport or exclude persons such that there is an interference with family life must be done in accordance with law. The degree of scrutiny is dependent on the extent and nature of interference with family life and the circumstances.
Article 1 of the Protocol 7 provides an alien lawfully resident in the territory of a state shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed.
- to submit reasons against his expulsion.
- to have his case reviewed and represented for those purposes before the competent authority or a person designated by that authority.
The deportation must be in accordance with law. If it is in accordance with law, it must be justified in accordance with the criteria set out.
An alien may be expelled before the exercise of his rights above when such expulsion is necessary in the public interest or is grounded in reasons of national security.
The applicant must be lawfully resident to come within this provision. This would appear to require more than temporary residence. There is some support for a broader view that there may be lawful presence where a person is complying with the terms of his entry.
In Lupsa v Romania, a Serbian national was summarily deported after living for 14 years in Romania running a business. In these particular circumstances, it was held there was insufficient protection against arbitrary actions.
The state claimed that he was an undesirable person engaged in activities endangering national security. He had not been given the slightest details of a national security basis on which the claim was purported to be made. There was no opportunity for a lawyer to study his case, or otherwise consider a proper review of the decision.
Deportation must serve a legitimate aim and be necessary in a democratic society. It must be proportionate and serve the need in question.
n Boultif v. Switzerland, the court indicated, “the Court will consider the nature and seriousness of the offence committed by the applicant; the duration of the applicant’s stay in the country from which he is going to be expelled; the time which has elapsed since the commission of the offence and the applicant’s conduct during that period; the nationalities of the various persons concerned; the applicant’s family situation, such as the length of the marriage; other factors revealing whether the couple had a real and genuine family life; whether the spouse knew about the offence at the time when he or she entered into the family relationship; whether there are children of the marriage, and if so, their age. Not least, the Court will also consider the seriousness of the difficulties which the spouse would be likely to encounter in the applicant’s country of origin, although the mere fact that a person might face difficulty in accompanying her or his spouse cannot by itself preclude expulsion.”
In CG v. Germany, Bulgarian, a Turkish national and families were the subject of a deportation order and summary deportation based on a threat to national security. He was, in fact suspected of being involved in drug dealing. The court held that the deportation must be the subject of proper proceedings before an independent authority to verify and examine the reasons put forward. The court emphasised that even in a case involving national security where the degree of scrutiny was less in view of the sensitivity of the matter, slightly less strict criteria might apply in respect of serious criminality.
Al-Nashif v. Bulgaria involved a Palestinian national who was prosecuted and deported for engaging in teaching the Muslim religion without authority and having certain links to a fundamentalist organisation. The reasons for the decision were not given to the applicant or his legal advisers. The state’s decisions were taken without any adversarial process. This court, by a majority of 4 to 3, held there were sufficient safeguards against arbitrary action.
Family Life I
In one case, the applicant was an Algerian national living in Switzerland with his Swiss wife. He was prosecuted, convicted, and imprisoned for robbery and damage to property; the crimes were considered particularly ruthless and brutal. His residence permit was withdrawn. In the circumstances, there was a practical impossibility of him establishing a family life for himself and his wife outside of Switzerland. Accordingly, the deportation was not proportionate to the prevention of crime and disorder.
The test of family life is at the time relevant deportation or other equivalent order is made. In Maslov v. Austria, a 17-year-old who had lived in Austria for 11 years was convicted of multiple burglaries and was subject to a deportation order. The court indicated that very good and cogent reasons would be required for the deportation of a settled migrant who had lawfully spent all or most of his or her childhood or youth in the host country.
In Mustaquim v. Belgium, the applicant had lived in Belgium since the age of two years It was held that deportation would deprive him of family life with parents and siblings.
Family Life II
In Nunez v. Norway, the applicant had been deported from Norway following a criminal conviction and reentered using false information. However, it was held that the state had not struck a fair balance between the applicant’s interests in remaining in Norway to maintain contact with their two children and the state’s interest. An expulsion and two year re-entry ban breached the protection.
In Antwi v. Norway, the first applicant had forged a passport and birth cert to obtain a work permit and residence permit in Norway, and subsequently to renew them. Both he and his wife and their 10-year-old child were deported to Ghana. It was found that this was not disproportionate, notwithstanding that the child had minimal links to Ghana.
In Nasri v. France, a deportation order against an Algerian national breached his right to family life in particular circumstances, which were exceptional. He was convicted of gang rape. He was deaf and could not speak and had lived almost all his life in France with his parents and eight siblings.
In Al-Nashif v. Bulgaria the court said: Where immigration is concerned, Article 8 cannot be considered to impose on a state a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory. However, the removal of a person from a country where close family members are living may amount to an infringement of the right to respect for family life under the Convention.
The court in assessing whether there is family life, considers the relationship between persons who have been living together and the relevant length of time. The court also recognises that family life may exist irrespective of the length of its existence. Other wider family ties may be part of family life which may form in fact, over time and become stronger as persons live and develop a life within the country with a wider circle of family ties.
Where there is no practical possibility of the family establishing elsewhere and other family members seek to join family members with a Convention country, their application must be examined with reference to their individual circumstances. In a number of cases, East African Asians v. United Kingdom (1970) a complaint was admissible by a husband to join his wife and six children who were lawful residents. The case was withdrawn, and permanent residence was afforded.
The Convention in no way guarantees a right to family life in a particular country. It protects the family life somewhere but not necessarily in the Convention country concerned. In the case of children, they would generally be in a position to enjoy family life only where their parents reside.
In Abdulaziz and others v. United Kingdom, a challenge was made by the spouses of women who had become lawfully permanently settled in the United Kingdom. The court affirmed, as it had in previous cases, that family life could exist even if the couple had not yet established a home together. In this particular case, the parties had cohabited and in one case had a child. This constituted family life.
The duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a contracting state to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouse for settlement in that country. The court held that in the particular circumstances, there was no violation, coming to a different conclusion to the Commission.
In Abdulaziz and others v. United Kingdom, the court held that a UK effective practice of allowing a wife to join a husband, lawfully resident in the United Kingdom, was discriminatory relative to the practice of not generally allowing a husband to join a wife in the country when the Convention right to private life was considered together with the equality right.
In Berrehab v. Netherlands, the applicant was divorced from his Dutch wife and the child was born after their separation. The applicant was refused a residence permit, and this was held to constitute a violation of the right to family life as although he had only visitation rights to his daughter, he would be deprived of regular contact. It was not enough that he could travel from Morocco to the Netherlands. Even the public order exception was not available as it was disproportionate to in the circumstances.