ECtHR – Unuane v. The United Kingdom, Application no. 80343/17, 24 November 2020
| Country of applicant: | Nigeria |
| Court name: | European Court of Human Rights (Fourth Section) |
| Date of decision: | 24-11-2020 |
| Citation: | European Court of Human Rights, Unuane v. The United Kingdom, Application no. 80343/17, 24 November 2020 |
| Additional citation: | ECLI:CE:ECHR:2020:1124JUD008034317 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Serious non-political crime
Description
"This category does not cover minor crimes nor prohibitions on the legitimate exercise of human rights. In determining whether a particular offence is sufficiently serious, international rather than local standards are relevant. The following factors should be taken into account: the nature of the act, the actual harm inflicted, the form of procedure used to prosecute the crime, the nature of the penalty, and whether most jurisdictions would consider it a serious crime. Thus, for example, murder, rape and armed robbery would undoubtedly qualify as serious offences, whereas petty theft would obviously not. A serious crime should be considered non-political when other motives (such as personal reasons or gain) are the predominant feature of the specific crime committed. Where no clear link exists between the crime and its alleged political objective or when the act in question is disproportionate to the alleged political objective, non-political motives are predominant. The motivation, context, methods and proportionality of a crime to its objectives are important factors in evaluating its political nature. The fact that a particular crime is designated as non-political in an extradition treaty is of significance, but not conclusive in itself. Egregious acts of violence, such as those commonly considered to be of a ‘terrorist’ nature, will almost certainly fail the predominance test, being wholly disproportionate to any political objective. Furthermore, for a crime to be regarded as political in nature, the political objectives should be consistent with human rights principles." |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
The automatic application of domestic provisions regulating expulsion following a criminal conviction may amount to a violation of Article 8 where the impact of the removal measure on the family and isses of proportionality are not sufficiently assessed. In this assessment, the best interests of the child should bear significant weight.
Facts:
The applicant, a Nigerian national, was a resident in the United Kingdom since 1999. The applicant and his partner have three children, all born between 2002 and 2006. The oldest child suffers from a rare congenital heart defect.
Following convictions for several criminal offences in 2005 and 2009 for the applicant and his partner, deportation orders were made against the applicant, his partner and the two youngest children in 2014. The older child was already a British citizen. In her reasons for the decision to deport the family, the Secretary of State for the Home Department (SSHD) mentioned that the older child could voluntarily follow the family and consider treatment options for his condition in Nigeria.
The applicant challenged the decision on account of family and private life but the First-tier Tribunal dismissed the action. On appeal, the applicant argued that return would not be easy for the children and also submitted medical evidence on potential surgery needs for the oldest child that could not be addressed in Nigeria. The Upper Tribunal considered that even if the children did not have experience of life in Nigeria did not mean that they should be allowed to remain. However, the oldest child’s need for surgery could not be addressed in Nigeria and the child could not be expected to go through this medical procedure without support from his mother. The Tribunal also considered that the siblings could not be separated, allowing the appeals for the mother and the two children and precluding their deportation.
However, the Tribunal did not allow the applicant’s appeal because, even if the wife and the children may need him, there are very compelling reasons in his case for the public interest to outweigh such considerations. A further appeal was dismissed by the Court of Appeal in 2017 and, in 2018, the applicant was deported in 2018.
Decision & reasoning:
Article 8
The Court started its analysis by reiterating the principles regarding a state’s right to regulate the entry and stay of third-country nationals, as well as the guarantees of Article 8 ECHR that might limit the exercise of this right. It referred to the criteria on proportionality of expulsion that it had identified in Boultif v. Switzerland, as well as the additional guarantees around the best interests of the child as clarified in Üner v. The Netherlands. [paras. 70-73]
In the present case, the Court made its own assessment of the proportionality of the case, since the Upper Tribunal had merely applied the requirements set by domestic immigration legislation (the “very compelling circumstances” test) without conducting a separate balancing exercise under Article 8, which is required under ECHR jurisprudence. [para.84]
In this assessment, the Court noted that the nature and seriousness of the offence will bear weight in Article 8 balancing exercises but cannot be entirely determinative of the case. The seriousness of the criminal act will have to be assessed in combination with the Boultif and Üner criteria. In fact, the Upper Tribunal had indeed made a similar assessment finding that the separation of the mother and the siblings would be unduly harsh and, therefore, in violation of Article 8 ECHR. Although the same criteria were essentially also applicable in respect of the father, the domestic court simply rejected his appeal on account that there were no “very compelling circumstances” that could preclude his deportation. [paras. 86-88]
The Court clarified that such an assessment could not be considered compatible with Article 8; the domestic tribunal acknowledged that the separation would not be in the best interests of the child but failed to give this finding sufficient weight. Conseuqently, the Court concluded that the seriousness of the offences was not of a nature or a degree that, given the circumstances of the case, could outweigh the best interests of the child and allow the applicant’s expulsion.[para. 89]
Article 13 in conjuction with Article 8
As the applicant had been able to request permission to appeal to the Court of appeal, he was not denied an effective remedy under Article 13. Consequently, the complaint on this account was found to be manifestly ill-founded. [para. 93]
Outcome:
Violation of Article 8.
Complaint concerning Article 8 in conjunction with Article 13 inadmissible.
Cited National Legislation:
Other sources:
Case law from the European Court of Human Rights
Domestic Case Law Cited
MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC) (31 October 2012)
Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) (30 January 2013)
MF (Nigeria) v. Secretary of State for the Home Department [2013] EWCA Civ 1192 (8 October 2013)
NA (Pakistan) v. Secretary of State for the Home Department [2016] EWCA Civ 662
Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 (16 November 2016)
R (on the application of Agyarko) v Secretary of State for the Home Department [2017] UKSC 11