“8.(1) Everyone has the right to respect for his private and family life …. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.”
“54. The Court reaffirms at the outset that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there …. The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel an alien convicted of criminal offences. However, their decisions in this field must, insofar as they may interfere with a right protected under paragraph 1 of Article 8, be in accordance with the law and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued …. 55. The Court considers that these principles apply regardless of whether an alien entered the host country as an adult or at a very young age, or was perhaps even born there. In this context the Court refers to Recommendation 1504 (2001) on the non-expulsion of long-term immigrants, in which the Parliamentary Assembly of the Council of Europe recommended that the Committee of Ministers invite member States, inter alia, to guarantee that long-term migrants who were born or raised in the host country cannot be expelled under any circumstances …. While a number of Contracting States have enacted legislation or adopted policy rules to the effect that long-term immigrants who were born in those States or who arrived there during early childhood cannot be expelled on the basis of their criminal record …, such an absolute right not to be expelled cannot, however, be derived fromArticle 8 of the Convention , couched, as paragraph 2 of that provision is, in terms which clearly allow for exceptions to be made to the general rights guaranteed in the first paragraph. … 57. Even ifArticle 8 of the Convention does not therefore contain an absolute right for any category of alien not to be expelled, the Court’s case-law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision …. In the case of Boultif [Boultif v Switzerland(2001) 33 EHRR 1179 ] the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria … are the following: - the nature and seriousness of the offence committed by the applicant; - the length of the applicant’s stay in the country from which he or she is to be expelled; - the time elapsed since the offence was committed and the applicant’s conduct during that period; - the nationalities of the various persons concerned; - the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life; - whether the spouse knew about the offence at the time when he or she entered into a family relationship; - whether there are children of the marriage, and if so, their age; and - the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled. 58. The Court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment: - the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and - the solidity of social, cultural and family ties with the host country and the country of destination. As to the first point, the Court notes that this is already reflected in existing case law … and is in line with the Committee of Ministers’ Recommendation Rec(2002)4 on the legal status of persons admitted for family reunification …. As to the second point, it is to be noted that, although the applicant in the case of Boultif was already an adult when he entered Switzerland, the Court has held the ‘Boultif criteria’ to apply all the more so (à plus forte raison) to cases concerning applicants who were born in the host country or who moved there at an early age …. Indeed, the rationale behind making the duration of a person’s stay in the host country one of the elements to be taken into account lies in the assumption that the longer a person has been residing in a particular country the stronger his or her ties with that country and the weaker the ties with the country of his or her nationality will be. Seen against that background, it is self-evident that the Court will have regard to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there. 59. The Court considered itself called upon to establish ‘guiding principles’ in the Boultif case because it had ‘only a limited number of decided cases where the main obstacle to expulsion was that it would entail difficulties for the spouses to stay together and, in particular, for one of them and/or the children to live in the other’s country of origin’ …. It is to be noted, however, that the first three guiding principles do not, as such, relate to family life. This leads the Court to consider whether the ‘Boultif criteria’ are sufficiently comprehensive to render them suitable for application in all cases concerning the expulsion and/or exclusion of settled migrants following a criminal conviction. It observes in this context that not all such migrants, no matter how long they have been residing in the country from which they are to be expelled, necessarily enjoy ‘family life’ there within the meaning of Art 8. However, as Art 8 also protects the right to establish and develop relationships with other human beings and the outside world … and can sometimes embrace aspects of an individual’s social identity …, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of ‘private life’ within the meaning of Art 8. Regardless of the existence or otherwise of a ‘family life’, therefore, the Court considers that the expulsion of a settled migrant constitutes interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the ‘family life’ rather than the ‘private life’ aspect. 60. In the light of the foregoing, the Court considers that all the above factors (see [57]-[59]) should be taken into account in all cases concerning settled migrants who are to be expelled and/or excluded following a criminal conviction.”
“70. The court would stress that while the criteria which emerge from its case-law and are spelled out in the Boultif and Üner judgments are meant to facilitate the application of Art 8 in expulsion cases by domestic courts, the weight to be attached to the respective criteria will inevitably vary according to the specific circumstances of each case. Moreover, it has to be borne in mind that where, as in the present case, the interference with the applicant’s rights under Art 8 pursues, as a legitimate aim, the ‘prevention of disorder or crime’ …, the above criteria ultimately are designed to help evaluate the extent to which the applicant can be expected to cause disorder or to engage in criminal activities. 71. In a case like the present one, where the person to be expelled is a young adult who has not yet founded a family life of his own, the relevant criteria are: - the nature and seriousness of the offence committed by the applicant; - the length of the applicant’s stay in the country from which he or she is to be expelled; - the time elapsed since the offence was committed and the applicant’s conduct during that period; - the solidity of social, cultural and family ties with the host country and with the country of destination. 72. The court would also clarify that the age of the person concerned can play a role when applying some of the above criteria. For instance, when assessing the nature and seriousness of the offences committed by an applicant, it has to be taken into account whether he or she committed them as a juvenile or as an adult …. 73. In turn, when assessing the length of the applicant’s stay in the country from which he or she is to be expelled and the solidity of the social, cultural and family ties with the host country, it evidently makes a difference whether the person concerned had already come to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult. This tendency is also reflected in various Council of Europe instruments, in particular in Committee of Ministers Recommendations Rec(2001)15 and Rec(2002)4 …. 74. Although Art 8 provides no absolute protection against expulsion for any category of aliens (see Üner para 55), including those who were born in the host country or moved there in their early childhood, the court has already found that regard is to be had to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there (see Üner para 58 in fine). 75. In short, the court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile.”
“Although the Court would not wish to underestimate the practical difficulties entailed for the applicant or his partner in relocating to Turkey, no evidence has been adduced which would indicate that it would be either impossible or exceptionally difficult for them to do so.”
“46. The Court attaches considerable weight to the solidity of the applicant’s family ties in the United Kingdom and the difficulties that his family would face were they to return to Nigeria. The Court accepts that the applicant’s wife was an adult when she left Nigeria and it is therefore likely that she would be able to re-adjust to life there if she were to return to live with the applicant. She has, however, lived in the United Kingdom for twenty-six years and her ties to the United Kingdom are strong. Her two youngest children were born in the United Kingdom and have lived there their whole lives. They are not of an adaptable age and would likely encounter significant difficulties if they were to relocate to Nigeria. It would be virtually impossible for the oldest child to relocate to Nigeria ….”
“19. … But for the present, at least, the last word on the subject has now been said in EB (Kosovo). While it is of course possible that the facts of any one case may disclose an insurmountable obstacle to removal, the inquiry into proportionality is not a search for such an obstacle and does not end with its elimination. It is a balanced judgment of what can reasonably be expected in the light of all the material facts. … 24. EB (Kosovo) now confirms that the material question in gauging the proportionality of a removal or deportation which will or may break up a family unless the family itself decamps is not whether there is an insuperable obstacle to this happening but whether it is reasonable to expect the family to leave with the appellant ….”
“42. … Albeit those cases all arose in the context of removals rather than deportations and did not raise the issue of proportionality against the background of the commission of a serious criminal offence, they each in their own way dethrone the significance of the test of ‘insurmountable obstacles’ or emphasise the importance of the test of whether it is reasonable to expect a spouse or child to depart with the family member being removed. The ultimate test remains that of proportionality ….”
“83. The Tribunal also noted that the Appellant had lived for all intents and purposes his life in the UK. He had come to the UK when he was 4 years old with his mother and was now 26 years of age. In his 22 years in the UK most of his family in the form of uncles, aunts, grandparents, cousins etc had come to the UK and that effectively he had no relatives left in Uganda. His education had been in the UK and what friends or family he had were also in this country. If he were to be returned to Uganda he would go alone, have no family and no real knowledge of the culture or indeed the language. He would however have had the benefits of an English education and have obtained some qualifications e.g. car mechanic, IT skills, English and maths at GCSE and would therefore not be without prospects of finding some form of employment. He is also young and healthy and would therefore not be in a position due to ill-health or incapacity from looking after himself or gaining a job. He would however be on his own.”
“86. With regard to the Appellant’s family life …. It follows therefore that on a practical level for the last nine to ten years the Appellant has not lived with his blood relatives for any sustained period of time and has either been on his own in the community, or has been held by either the criminal courts or the Immigration Service. Effectively therefore his claim to family life in this country is at best tenuous. In the true sense of the word the Appellant’s family life effectively ended when he left his uncle Toya’s home at 17/18 years of age. Nevertheless in view of the fact that the Appellant’s relatives attended the Tribunal and gave evidence on his behalf it is clear that some family life still exists. It was however also clear that his family are becoming tired of dealing with the Appellant and his problems and having to deal with the issues that he raises. Nevertheless the Tribunal are prepared to accept that some form of family life however tenuous and weak does still exist. 87. … What is ultimately in issue is whether it is proportionate to remove the Appellant taking into account all his known circumstances …. [Reference was made again to the authorities provided by JO’s counsel and to the cases of Grant and Onur, both of which were discussed.] 89. The Tribunal accepts that the Appellant has been in the UK for a longer period than the Appellant in the Onur case although less lengthy a period that in the Joseph Grant case. In both cases however the Appellant before the Tribunal came as a much younger child. However in both Onur and Grant the Appellants in those cases had gone on to father children, enter into significant relationships and indeed even had a grandchild in one case. Nevertheless the European Courts were clear that the Appellant could be returned to their home country …. 90. The Tribunal in this appeal have formed the opinion that the Appellant has committed two exceptionally serious criminal offences at a relatively young [sic] and that the terms of imprisonment imposed upon him clearly indicate the seriousness with which the criminal courts regard his behaviour. We do not accept that he is remorseful as he has claimed and note that he has expressed remorse in the past but has gone on to commit further serious offences. We also note that a second period in custody has not as the Appellant claims, made him rethink his position, and that in fact he was the subject of disciplinary proceedings at HM Prison Bullingdon for drugs related matters. Lastly the Tribunal views with concern the Oasys Report which clearly indicates that the Appellant commits criminal offences for financial gain and in order to pay his bills, and that he poses a medium risk of committing further offences against members of the public. Taking all these factors into account they regard the Secretary of State’s decision to remove the Appellant from the UK as proportionate There is a real risk that if the Appellant remains in this country and is at liberty he will commit further offences. 91. With regard to the Appellant’s private life the Tribunal in the cases of Joseph Grant for the reasons already noted, decided that the Appellant in that case could be returned to his own country and that although his network of friendships and acquaintances would differ from those he has in the UK, his private life would continue in all material respects.”
“It was [counsel’s] contention (supported by the authorities) that where a person was a settled migrant who had lawfully spent the major part of his or her childhood, youth and adulthood in the host country they then only in the most exceptional of cases should be removed ….”
“44. The respondent accepted in the reasons for refusal letter that the appellant had been in the United Kingdom since 1995 and during that time must have enjoyed family life. His circumstances have however clearly changed. He no longer has any contact with his mother for whatever reason; he has not demonstrated that he enjoys family life with any of his siblings or relatives; his relationship with his girlfriend is not a long term or serious relationship; he has no other family ties. Considering the evidence before us as a whole, we find that the appellant has not demonstrated that he has established a family life in this country.”
“47. The appellant has acquired an unenviable and unpleasant list of convictions for a young man. He did not dispute the extent of his convictions but said that none of them were gang related. From the reasons for refusal letter we glean that the appellant has convictions for offences against the person; theft and public order offences. These are described in the Pre Sentence Report (PSR) dated4th July 2007 as a concerning pattern of convictions of a violent nature …. 48. On two separate occasions the appellant has been given custodial sentences. He also failed to comply with community orders and with the supervision element of a detention and training order. The appellant was clearly given some opportunity to mend his ways but continued offending. There are a number of issues raised in the PSR that give us grave cause for concern for the future …. 49. It was argued before us that the appellant had committed these offences when he was a very young man, that there was no evidence that he had committed any further offences and that he had shown some degree of change. It is correct that there was no evidence that the appellant had committed any further offences since his last custodial sentence. He had however been in immigration detention for a period of time since his release from custody and for all of the period since his release from immigration detention he had been under the threat of removal from the United Kingdom. Whilst that threat was hanging over his head there was every incentive for the appellant not to offend …. … 51. … On balance we prefer the opinion of the PSR writer and find that the appellant is still at risk of reoffending and is therefore a high risk to the community.”
“In Maslov it was said, ‘In short the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile’. In this appeal the appellant did commit the offences on his record as a youth, but there is no evidence to show that the period of time that he spent in the country was lawful as there is no evidence to show the basis upon which he entered the United Kingdom.”
“58. In this appeal the appellant has committed offences of violence and dishonesty. He has also committed Public Order Act offences and in our finding remains at risk of re-offending at a risk to the public. We find that there is evidence to support the contention that his offending was gang related. The facts in this case are distinguishable from Maslov in that the appellant has not been here lawfully. We accept that the appellant has spent most of his formative years in this country albeit unlawfully. The appellant told us that he did not speak or understand any language other than English. His evidence was that although he had been at nursery in France and had lived there until he was four, at that stage he could not speak. We do not accept that assertion. In his school report for year six the appellant completed a self-assessment stating that he was not good at literacy because ‘English is not my first language’. We are not satisfied that the appellant has never had any knowledge or understanding of the French language. Adopting the reasoning in Onur, although we would not wish to under-estimate the practical difficulties entailed for the appellant in relocating to the Ivory Coast, no evidence has been adduced which would indicate that it would be either impossible or exceptionally difficult for him to do so. 59. We find therefore that the fourth test in Razgar [necessity of interference in private or family life] has been satisfied. In SSHD v Huang[2007] UKHL 11 it was held that ‘the question to be answered was whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the appellant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8.’ In this case, substituting private life for family life, we find that the answer to that question is in the negative …. 60. We are satisfied that taking full account of the individual rights of the appellant and balancing those against the right of the respondent in implementing and maintaining an effective immigration policy, the interference does not prejudice the appellant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. In other words the removal of the appellant is proportionate ….”