Guidance note:

Is deportation compatible with article 8 ECHR?

This guidance note applies to the deportation of non-EEA nationals only.

(a) ECtHR

Factors to be taken into consideration when considering proportionality in criminal

deportation case (Uner v Netherlands 2006 at 57-58):

 Nature and seriousness of offence

 Length of applicant‟s stay in the country
 Time elapsed since offence committed and conduct during that period
 Nationalities of various persons
 Applicant‟s family situation (eg length of marriage, effectiveness of family life)
 Whether spouse knew of offence when entered into family relationship
 Whether there are children and if so what age
 Seriousness of difficulties which spouse likely to encounter on deportation
 Best interests and wellbeing of children, in particular seriousness of difficulties they
are likely to encounter on deportation
 Solidity of social, cultural and family ties with host country and country of
destination

Further broad principles:

 Article 8 of the ECHR does not provide a right to an individual to choose where he
exercises his family or private life (eg Boultif v Switzerland 2001 at 39).
 Deportation may amount to a legitimate interference with article 8 where it is in
accordance with the law, serves a legitimate aim and is proportionate to that aim.
 The deportation must strike a fair balance between the applicant‟s right to respect for
his/her family life or private life and the prevention of disorder or crime: Boultif v
Switzerland 2001 at 47 (family life); Mazlov v Austria 2008 at 64-65 (family and
private life)
 It‟s not a double penalty to deport following sentence and it‟s open to states to deport
to protect the public in which cases deportation is preventative rather than punitive:
Uner v Netherlands 2006 at 56
 Age at which crimes committed are relevant, it being more difficult to deport where
crimes can be put down to juvenile delinquency: Maslov v Austria 2008; Moustaquim
v Belgium 1991 at 44
 Very serious violent offences can justify deportation even if they were committed by
a minor: Bouchelkia v France 1997 (aggravated rape, age 17); Hizir Kilic v Denmark
2007 and Ferhat Kilic v Denmark 2007 (attempted robbery, aggravated assault and
manslaughter aged 16 and 17)
 Period of time over which crimes committed are relevant, it being easier to deport
where crimes, including non-violent crimes, have been committed over a long period
of time: Grant v UK 2008
 1 or 2 crimes can be sufficient: Uner v Netherlands 2006 (manslaughter and assault)
 Length of expulsion/deportation is relevant, it being more difficult to justify very
lengthy expulsion: eg Uner v Netherlands 2006 (10 years acceptable)
  Good behaviour between the time the offence was committed and the deportation
will be taken into account by the ECtHR, including behaviour after the deportation
decision was taken: Maslov v Austria 2008 at 95
 Proximity to having the nationality of the host state is of relevance when determining
ties with that state: Beldjoudi v France 1992 at 77
 The ECtHR will accept evidence regarding why particular (non-violent) crimes are
considered serious enough to merit deportation: Amrollahi v Denmark 2002 at 37
(drug trafficking); Dalia v France 1998 (drug trafficking)

(b) domestic law

 When determining whether there is a breach of article 8 the courts must consider (a)
whether proposed removal/deportation will interfere with the individual‟s private or
family life (b) whether the interference will be grave enough to constitute an
interference with article 8 (c) whether any such interference is in accordance with the
law (d) whether any such interference is necessary in a democratic society for a
legitimate aim (e) whether the interference is proportionate to the legitimate aim: R v
SSHD (Razgar) [2004] UKHL 27 at para 17 (Dublin Convention removal)
 Whether deportation will constitute a proportionate interference with article 8 is very
fact/case specific: Senthura v SSHD [2004] EWCA Civ 950 para 15
 The risk of re-offending (and impact on his family) must be taken into account: AM
(Jamaica) v SSHD [2008] EWCA Civ 1408
 However, deportation can also serve to deter and to express society‟s revulsion at the
offence:
o if the individual commits a very serious crime the public interest side of the
balance includes the public policy need to deter and express society‟s
revulsion at the seriousness of the criminality, in the first instance an
assessment for the SSHD and an assessment of which the adjudicator should
take proper account. The risk of re-offending is a factor but for very serious
crimes a low risk of re-offending is not the most important public interest
factor: N (Kenya) v SSHD [2004] EWCA Civ 1094 paras 64-65. See also JS
(Colombia) v SSHD [2008] EWCA Civ 1238 para 32.
o Similarly, where the offence was very serious and the person is not likely to
re-offend it is possible for “the sole or principal justification for the …
deportation … [to be] the deterrence of others”: Samaroo and Sezek [2001]
EWCA Civ 1139 at 38-43. (Deterrence of others would itself serve the future
protection of the public.) But Macdonald thinks this could be difficult to
justify under article 8 ECHR: Macdonald, 7th ed, para 15.19. And it would not
be possible to deport an EEA national for solely deterrent purposes: Directive
2004/38/EC article 27(2); S.I. 2006/1003 reg 21(5).
o When considering whether removal/deportation constitutes a proportionate
interference with article 8 there will “in almost any case, be certain general
considerations to bear in mind: the general administrative desirability of
applying known rules if a system of immigration control is to be workable,
predictable, consistent and fair as between one applicant and another; the
damage to good administration and effective control if a system is perceived
by applicants internationally to be unduly porous, unpredictable or
perfunctory; the need to discourage non-nationals admitted to the country
temporarily from believing that they can commit serious crimes and yet be
 allowed to remain; the need to discourage fraud, deception and deliberate
breaches of the law; and so on.” Huang v SSHD [2007] UKHL 11 para 16
(refusal of leave)
 Delay in making the immigration decision can have an impact when determining the
proportionality of any interference with article 8 because (a) the applicant can
develop closer ties with the UK (b) tentative relationships can become more settled
with an expectation that can remain (c) delay can reduce the weight to be otherwise
accorded to the requirements of a firm and fair immigration control if it is shown that
the delay results in a dysfunctional system yielding unpredictable, inconsistent and
unfair outcomes: EB (Kosovo) v SSHD [2008] UKHL 41 paras 14-16.
 In assessing the proportionality of any interference with family life, the rights of the
entire family need to be considered. Article 8 rights of family members who are not
party to the proceedings should therefore also form part of the proportionality
assessment: Beoku-Betts v SSHD [2008] UKHL 39 at 43.
 It will rarely be proportionate to uphold an order for removal of a spouse if there is a
close and genuine bond with the other spouse and that spouse cannot reasonably be
expected to follow or if the order will sever a genuine and subsisting relationship
between parent and child: EB (Kosovo) v SSHD [2008] UKHL 41 para 12.
 But even if it is unreasonable for a spouse to follow the deported spouse, deportation
can be proportionate. The court must evaluate the whole picture including the
seriousness of the offence committed and the Secretary of State‟s right to represent
the public interest in the deterrence and prevention and abhorrence of such crime: DS
(India) v SSHD [2009] EWCA Civ 544.

June 2009
 Annex
Facts of key individual ECtHR cases

Uner v Netherlands 2006

Proportionate interference: conviction for manslaughter and assault; lived in Netherlands

since aged 12, had 2 children with partner, no longer cohabiting, had some social and
cultural/linguistic ties to Turkey, practical difficulties in wife joining him in Turkey. 10 year
expulsion order proportionate given the seriousness of the offences

Boultif v Switzerland (2001)

Disproportionate interference: „comparatively limited danger to public order‟ following

unlawful possession of weapons, robbery, damage to property, assault and theft; followed
by 6 years good behaviour and exemplary behaviour/early release in prison; „serious
impediment to establishing a family life since practically impossible‟ to live with family
outside Switzerland (wife spoke French but would face difficulties moving to Algeria and
not clear if could relocate to Italy).

Maslov v Austria at 81

Disproportionate interference: Found that 10 year expulsion was disproportionate to the

offences committed. Although he had been convicted of 22 offences including aggravated
gang burglary, extortion and assault, his offences had been committed when he was 14-15
years and with one minor exception did not involve violence so Grand Chamber regarded as
acts of juvenile delinquency.

Grant v UK 2009

Proportionate interference: in UK for 34 years; 3 children with 3 British nationals; never lived
with any of children but in regular contact; convicted of 52 offences between 1991 and 2006
but none were serious and majority were non-violent and those which were attracted
sentences of 12 months or less; cannot ignore time span; can‟t say „juvenile delinquency‟;
family has some ties with Jamaica and can‟t say so estranged from Jamaica that couldn‟t
settle there.