ECHR DECISION: SERIOUS OFFENCES, FAMILY LIFE AND RELIANCE ON ARTICLE 8

A recent decision of the European Court of Human Rights in AA v United Kingdom (8000/08) [2011] ECHR 1345 (20 September 2011) determined that a young Nigerian applicant’s return to Nigeria would violate his Article 8 right to respect for his private life as a young adult. The decision provides helpful consideration on the proportionality exercise where a serious offence has been committed but appears to be less instructive on whether relationships between adult children and their parents/siblings may constitute family life for the purposes of Article 8.  

The facts in brief were as follows: a Nigerian had arrived lawfully in the UK at 13 years to join his mother and two sisters. At the age of 15, he was convicted of raping a 13 year old girl for which he was sentenced to 4 years youth detention. On completion of his sentence, the applicant achieved academically, maintained family ties with his mother and adult sisters, and did not re-offended and was found to be at low risk of re-offending. The UK Home Office sought to deport the applicant, relying on the serious criminal offence committed and the absence of any family life within the terms of Article 8. The Strasbourg Court held that the deportation of the applicant would violate his Article 8 right to respect for his private life.

The majority of the Court’s considerations were with respect of whether deportation was necessary for the “prevention of disorder or crime” as was contended by the UK government. The Court noted a number of factors that mitigated against the seriousness of the original offence. Of particular importance was the fact that since his release from detention seven years ago - and the court took the date of its own consideration as the relevant date in line with its approach in Article 3 cases - the applicant had done nothing to support the UK government's contention that his deportation was necessary for the 'prevention of disorder or crime'. The Court noted that the offence was committed whilst the applicant was a minor and the best interest of the child were not furthered by severing family ties necessary for reintegration of a child offender. The Court placed reliance on the significant period that had elapsed since the offending behaviour and the impressive achievements of the applicant during this time. Reliance was also placed on the fact that the UK Asylum and Immigration Tribunal had previously accepted that the applicant presented a low risk of re-offending. Overall, the likelihood of the applicant engaging in further criminal behaviour was held to be a key consideration where risk to public order was being relied on as the legitimate aim justifying expulsion.

With respect of the Applicant’s family life, the Court noted that the applicant had spent half his life in the UK maintaining relationship with his mother and sisters and had not had contact with his father, residing in Nigeria, since 1991. The Court’s conclusions with respect of the Applicant’s family life in the UK were brief and stated as follows:
"Finally, as regards the applicant's ties with the United Kingdom and with Nigeria, the Court observes that the applicant continues to reside with his mother and has close relationships with his two sisters and an uncle, all of whom reside in England. He has completed the majority of his high school and further education in the United Kingdom and has now commenced a career with a local authority in London. He is also a member of a church community. While he spent a significant period of his childhood in Nigeria, he has now not visited the country for eleven years. He has had no contact with his father since 1991."

Essentially, there was no clarification by the Court in this decision on whether relationships between adult children and parents/siblings can amount to family life in deportation cases. The majority of the Court’s considerations related to whether deportation served a legitimate aim of the “prevention of disorder and crime”.

Lourdes Peroni, in her recent blog post on the UK Human Rights blog provides an extremely instructive overview and discussion of the Court’s decisions on the status of relationships between adult children and parents/siblings and family life for the purposes of Article 8, with a starting point as the Court’s decision in this case of AA. Ms Peroni notes that while in Maslow v. Austria such family ties were accepted as constituting family life, where the young adult did not yet have family of their own, in the earlier decision of Slivenko v. Latvia it was held that an additional element of dependence would be needed for such relationships to constitute family life.

While the decision in AA therefore does not provide clarity on the status of relationships between adult family members for the purposes of Article 8, it does assist in clarifying what factors are to be accorded weight in the proportionality exercise where a serious criminal offence has been committed.  Finding that removal of the applicant to Nigeria would constitute a violation of Article 8 of the Convention, the Court concluded:
"The foregoing considerations are sufficient to enable the Court to conclude that the applicant's deportation from the United Kingdom would be disproportionate to the legitimate aim of the "prevention of disorder and crime" and would therefore not be necessary in a democratic society. There would accordingly be a violation of Article 8 of the Convention if the applicant were deported to Nigeria."

Brophy Solicitors

04.10.11