September 27, 2011
In A.A. v. the United Kingdom, a recent case involving the deportation of a young Nigerian man, the Court faced, once again, the question whether relationships between adult children and parents/siblings amount to family life in deportation cases. The Court’s Fourth Section did not give a clear answer to this question. The 24-year-old applicant resided with his mother and did not have children of his own.
In this post, I take a quick look at the Fourth Section’s reasoning on this issue and try to situate it in the wider context of the Court’s deportation case law. One word of caution: this is an attempt to briefly look at one specific question the Court asks to decide whether the deportation has interfered with an applicant’s right to respect for her family life. Do the ties invoked by the applicant constitute family life within the meaning of Article 8 § 1? To be more specific, do relationships between adult children and parents/siblings amount to family life in deportation cases?
Let’s start with the Court’s reasoning in A.A. v. the United Kingdom. First of all, the Fourth Section does a good job in giving an overview of the Court’s recent case law on this issue in an area where it does not always appear crystal clear (paragraphs 46-50). In essence, the Court tells us of the various cases concerning young adults claiming family life with respect to their parents and siblings. In a number of these cases, the Court has accepted the existence of family life. The main reference here is Maslow v. Austria, a 2008 Grand Chamber judgment, which admitted that the deportation interfered with both the applicant’s “private life” and “family life.” The Court stated in Maslow:
“… the Court has accepted in a number of cases concerning young adults who had not yet founded a family of their own that their relationship with their parents and other close family members also constituted “family life.” (para. 62)
One important element in the Court’s family life analysis in these cases, as the Fourth Section observes in A.A., seems to be whether the applicant has children of her own. This might have been indeed one of the reasons behind the Court’s rejection of family life in cases concerning other young adults like A.W. Khan v. the United Kingdom and Onur v. the United Kingdom. In A.W. Khan, the Court did not accept that the applicant had family life with his mother and brothers, notwithstanding the fact that he was living with them and that they suffered several health problems (para. 32). Referring to Slivenko v. Latvia, the Court back then observed that in “immigration cases […] there will be no family life between parents and adult children unless they can demonstrate additional elements of dependence” (para. 32). In Onur, also based on Slivenko v. Latvia, the Court did not find that “the applicant enjoyed family life with his mother and siblings as he has not demonstrated the additional element of dependence normally required to establish family life between adult parents and adult children” (para. 45).
Contrary to A.W. Khan and Onur, the applicant in A.A., like the one in Maslow, had not yet had a family of his own. It is therefore hard to understand why exactly the Court did not fully embrace the Maslow rationale by expressly recognizing interference with his family life. True, the Court later clarifies that it does not really matter whether the analysis takes place under family life or private life, as the factors examined in the proportionality analysis are ultimately the same. Still, one is left wondering where exactly did Maslow go here. Moreover, one wonders whether this would not really matter to an applicant who claims family life on minority cultural grounds.
The picture gets particularly blurry if one goes back to Slivenko v. Latvia and other deportation cases concerning members of the Russian-speaking minority in Latvia. In Slivenko, the Grand Chamber famously remarked that, when it comes to expulsion and extradition measures, the main emphasis lies in family life understood as normally limited to the “core” of family (para. 94). The Court is here talking about parents and minor children, as it soon becomes clear from Judge Kovler’s dissent who complains about the majority opting “for the traditional concept of a family based on the conjugal covenant – that is to say, a conjugal family consisting of a father, a mother and their children below the age of majority,” contrary to the construction in its Article 8 § 1 case-law, which opens possibilities for broader family ties. Another critical voice within the Court in this regard has been Judge Spielmann who, in several separate opinions, took issue with the little importance attached by the majority to the affective ties between adult sons/daughters and their mothers. Giving precedence to the dependency criterion to the detriment of such ties has struck him as an “artificial approach” to determine the existence of family life (See e.g., Shevanova v. Latvia, para. 8 of his partly concurring opinion. The case was however referred to the Grand Chamber and ultimately struck out of the list).
In any event, it looks like family life claims of the type articulated in A.A. are here to stay. The Court appears to have been increasingly confronted with applications coming from young adults claiming family life with their parents and siblings. Many of them live in the same household, sometimes along with other more distant relatives. For this reason, a clearer position on this issue from the Court in A.A. would have been much appreciated. The Court ultimately does find a violation of Article 8 after a nicely-crafted reasoning aimed at determining whether the interference was justified. The Court concludes: “the applicant’s deportation from the United Kingdom would be disproportionate to the legitimate aim of the “prevention of disorder and crime” and would therefore not be necessary in a democratic society” (para. 69). One may then ask: what difference does it make to examine the case under private or family life if the outcome is ultimately the same? This is no doubt a valid point. Still, I think this may make a difference in terms of recognition in many cases.