Friday, October 7, 2011

Article 8's appetite

In late September, the European Court of Human Rights confirmed the ongoing importance and power of the right to family life as a defense to deportation. For immigrants ineligible for asylum or protection against torture, Article 8 of the European Convention on Human Rights offers an increasingly viable path to resisting removal. The Court's interpretation of Article 8 flies in the face of dominant perceptions of immigrants as outsiders, noting instead the significant connections between settled migrants and their communities. This conceptual shift is increasingly valuable as xenophobia grows in Europe. But is this a wise step for the ECHR to take?
A.A., a Nigerian national, arrived in the United Kingdom eleven years ago, at the age of 13. Two years later, he was convicted of gang rape of a 13 year-old-girl. The next year, while detained at a juvenile institution, he was granted Indefinite Leave to Remain as a derivative of his mother. Two months later, A.A. was notified that the rape conviction left him liable to deportation. A year later, he was served with a deportation order. While in detention, he passed national school education exams, and went on to university after his release. He lost his appeals of his deportation order, with the Immigration Judge specifically determining that Article 8 did not protect him given his age and lack of dependence on his family.
The ECHR found otherwise, noting that a 24-year-old who lives with his mother and does not yet have a family of his own does indeed have a family life to protect. Moreover, Article 8 protects private life, which the court defines to include "the totality of social ties between settled migrants and the community in which they are living." Balancing this right with the goals of public safety and crime prevention, the ECHR found that the applicant had committed just one crime and that A.A.'s probation officer had reported that his risk of recidivism was low. The Court noted that seven years had passed since his release from prison without any criminal behavior, and that he had subsequently completed school and obtained employment. Given these facts, the ECHR held that A.A.'s deportation would be "disproportionate to the legitimate aim of the 'prevention of disorder and crime' and would therefore not be necessary in a democratic society."
If we view criminal sanctions, particularly in juvenile settings, as rehabilitative, this outcome seems correct. A.A. had already served his sentence, with exemplary behavior, and should not face punishment a second time through deportation. The concern, of course, is that European states will become even less likely to admit immigrants if they view the court as tying their hands with respect to deportation of those who have committed crimes. It remains to be seen whether the ECHR's approach to Article 8 will prompt a cultural shift in European views towards immigrants or instead provoke a backlash.

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