In the past two years, the European Court of Human Rights (the Court) has ruled in at least seven cases relating to the deportation of a settled immigrant after a criminal conviction. In none of these cases did the Court find a violation, even though in some cases the applicants had lived in the host state for a very long period of time. In our overview of the case law of the Court in the Dutch periodical Asiel & Migrantenrecht we concluded that the Court seems to have expanded the margin of appreciation of states in the deportation of foreigners after a criminal conviction. In this blog, we would like to illustrate this point using two examples from the public order case law and briefly compare these developments with recent case law of the Court of Justice of the European Union (CJEU), which seems to take a different direction. In both public order cases discussed below, the Court finds no violation of Article 8 even though the applicants had had a very long period of residence in the host state.
In Külekci v. Austria, the Court rejected the complaint concerning the deportation of a Turkish national from Austria who had lived in Austria his entire life. When he was still a minor, he was convicted for a series of violent robberies of elderly ladies. At the age of nineteen, the applicant was deported to Turkey. The Court ruled that, unlike in the case of Maslov v. Austria, the crimes the applicant had been convicted for could not be regarded as mere acts of juvenile delinquency, considering the violent character of the offences. Furthermore, even though the Court acknowledged the integration of the applicant in Austria, the country he was born in, the Court held that he was not economically integrated because he had not found a job after being released from detention.
The case Ndidi v. United Kingdom concerns a Nigerian national who arrived in the United Kingdom at the age of two in 1989 (see for further analysis the insightful blog of Dhondt on the Ndidi judgment). When the applicant was a minor, he was convicted for a series of serious crimes. Even though the United Kingdom warned the applicant that a further conviction could lead to his deportation, the applicant was again convicted, this time for a serious drugs-related offence. Subsequently, his deportation was ordered. The majority of the Court ruled that there was no reason to substitute the proportionality assessment of the domestic authorities with the Court’s own because the individual circumstances were thoroughly and carefully considered in the proportionality test by the domestic authorities and there had not been a change in the applicant’s circumstances. Dissenting judge Turković pointed out that in his opinion the period that had elapsed since the offence had been committed, in which the applicant had not reoffended and during which he had demonstrated serious efforts to rehabilitate himself and to reintegrate in society had been completely disregarded by the Court. Turković pointed out that the majority departed from the approach adopted in A.A. v. United Kingdom, in which the exemplary behaviour of the applicant after his conviction was decisive for the Court to find a violation.
These cases illustrate that the view expressed by judge Martens in 1996 that expelling integrated aliens can only be justified under very exceptional circumstances has not materialised in the case law of the Court since then. On the contrary, the Court seems to have taken a step backwards, even reinterpreting the positions taken in Maslov v. Austria and A.A. v. United Kingdom. In clarifying the margin of appreciation states have in the balancing of interests enshrined in the Article 8 test, the Court makes clear that besides not reoffending, applicants must demonstrate further elements of social and economic integration in the host state. From Külekci v. Austria it can be inferred that the fact that the applicant had not found a job carries significant weight in the assessment. Ndidi v. United Kingdom shows that the fact that the applicant had shared parental custody over a minor child is not sufficient to tilt the balance.
On a more abstract level, what is clear from the assessment by the Court is that the focus of the balancing exercise does not lie so much on the risks for public order and security of the residence of the applicant in the host states in the future, but more on the seriousness of the offences in the past. Strikingly, this goes against the trend in EU law in which the CJEU interprets the notion of public order consistently in line with the formulation in the Citizenship Directive, according to which a measure taken on the grounds of public policy or public security may only be taken if the personal conduct of the individual concerned represents “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.” A good example of this development is the case of CS. In that case, the third country national parent of a British child was criminally convicted and sentenced to twelve months imprisonment. Based on this, the domestic authorities sought to terminate the residence of CS. The CJEU holds that the domestic authorities must take into account, among all other factors, “the extent to which the person concerned is currently a danger to society” (See para. 42). This approach mirrors the line adopted by the Court in A.A. v. United Kingdom, which is different from the line adopted by the Court in Ndidi v. United Kingdom.
Turković points out in his dissenting opinion to Ndidi that, especially considering the serious problems relating to the integration of second-generation immigrants, “it is of utmost importance to balance wisely society’s impulse to attach greater weight to the public interest than to private and family life claims under Article 8 of the Convention.” For a wise and balanced application of public order objections against the residence of foreigners with a long residence in the host state – and to create consistency in the approach of both European courts in dealing with public order in immigration cases – it would be preferable if the European Court of Human Rights were to systematically pay more attention to the threat that an individual imposes in the future, and less to the nature and seriousness of offences that have been committed in the past.