ECtHR – Unuane v. The United Kingdom, Application no. 80343/17, 24 November 2020

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]