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

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Country of Applicant: 
Date of Decision: 
European Court of Human Rights, Unuane v. The United Kingdom, Application no. 80343/17, 24 November 2020
Additional Citation: 
Court Name: 
European Court of Human Rights (Fourth Section)

The automatic application of domestic provisions regulating expulsion following a criminal conviction may amount to a violation of Article 8 where the impact of the removal measure on the family and isses of proportionality are not sufficiently assessed. In this assessment, the best interests of the child should bear significant weight.


The applicant, a Nigerian national, was a resident in the United Kingdom since 1999. The applicant and his partner have three children, all born between 2002 and 2006. The oldest child suffers from a rare congenital heart defect.

Following convictions for several criminal offences in 2005 and 2009 for the applicant and his partner, deportation orders were made against the applicant, his partner and the two youngest children in 2014. The older child was already a British citizen. In her reasons for the decision to deport the family, the Secretary of State for the Home Department (SSHD) mentioned that the older child could voluntarily follow the family and consider treatment options for his condition in Nigeria.

The applicant challenged the decision on account of family and private life but the First-tier Tribunal dismissed the action. On appeal, the applicant argued that return would not be easy for the children and also submitted medical evidence on potential surgery needs for the oldest child that could not be addressed in Nigeria. The Upper Tribunal considered that even if the children did not have experience of life in Nigeria did not mean that they should be allowed to remain. However, the oldest child’s need for surgery could not be addressed in Nigeria and the child could not be expected to go through this medical procedure without support from his mother. The Tribunal also considered that the siblings could not be separated, allowing the appeals for the mother and the two children and precluding their deportation.

However, the Tribunal did not allow the applicant’s appeal because, even if the wife and the children may need him, there are very compelling reasons in his case for the public interest to outweigh such considerations. A further appeal was dismissed by the Court of Appeal in 2017 and, in 2018, the applicant was deported in 2018.

Decision & Reasoning: 

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]


Violation of Article 8.

Complaint concerning Article 8 in conjunction with Article 13 inadmissible.

Other sources cited: 

Case law from the European Court of Human Rights

A.A. v. the United Kingdom, no. 8000/08, § 57, 20 September 2011
A.W. Khan v. the United Kingdom, no. 47486/06, § 40, 12 January 2010
Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94
Alam v. Denmark (dec.), no. 33809/15, § 35, 6 June 2017
Baghli v. France, no. 34374/97, § 48, ECHR 1999 VIII
Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997‑VI
Boultif v. Switzerland, no. 54273/00, §§ 46-47, ECHR 2001 IX
Dalia v. France, 19 February 1998, § 54, Reports of Judgments and Decisions 1998 I
Hamesevic v. Denmark (dec.), no. 25748/15, § 43, 16 May 2017
Krasniqi v. Austria, no. 41697/12, § 47, 25 April 2017
Lukic v Germany, no 25021/08, 20 September 2011
Maslov v. Austria [GC], no. 1638/03, ECHR 2008
Ndidi v. the United Kingdom, no. 41215/14, 14 September 2017
Slivenko v. Latvia [GC], no. 48321/99, § 113, ECHR 2003-X
Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006 XII

Domestic Case Law Cited

MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC) (31 October 2012)

Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) (30 January 2013)

MF (Nigeria) v. Secretary of State for the Home Department [2013] EWCA Civ 1192 (8 October 2013)

NA (Pakistan) v. Secretary of State for the Home Department [2016] EWCA Civ 662

Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 (16 November 2016)

R (on the application of Agyarko) v Secretary of State for the Home Department [2017] UKSC 11

Authentic Language: 
State Party: 
United Kingdom
National / Other Legislative Provisions: 
Human Rights Act 1998 – Section 2 and Section 3 (1)
Immigration Act 1971 – Section 3 (5)
United Kingdom Borders Act 2007 – Section 32 (4) and (5)
Section 33
Citizenship and Immigration Act 2009 – Section 55
The Immigration Rules – Paragraphs 398 to 399A
Immigration and Asylum Act 2002 – Section 117C