December 18, 2013
This guest post was written by Georgios Milios*
On October 9 2013, Leonarda Dibrani, a 15-years old Roma girl, was arrested by the French police in front of her teachers and classmates and deported to Kosovo along with her parents and five siblings. Initially, it was argued that the family had left Kosovo some years ago seeking better opportunities but according to Leonarda’s father, the Kosovo story was a lie and the whole family had been living for many years in Italy where almost all of the children were born but had not managed to acquire the Italian nationality. Furthermore, the father argued that they moved to France in 2008 and sought asylum claiming that they all come from Kosovo. The ‘Kosovo lie’ did not work and the whole family was expelled on the grounds that they were residing illegally in France.
There is no doubt that the expulsion itself as well as the way it was carried out by the French authorities raises issues under certain provisions of the European Convention on Human Rights (ECHR). The fact that the family was residing illegally in France is by no means relevant with regards to the application of the Convention, as the later protects the rights of all people residing in the territory of a Contracting State regardless of whether they are nationals of that state, immigrants (legal or illegal) or stateless. Therefore, Leonarda and her family are fully protected by the Convention and they can rely on the provisions referred to therein in the event of deportation. In particular, the applicable provisions are Art. 8 and Art. 4 of Protocol 4 of the ECHR.
To begin with, Art. 4 of Protocol 4 prohibits collective expulsions of aliens. The governments of the Contracting States of the ECHR cannot expel more than one person at the same time but are obliged to examine every case separately and make a concrete and justified decision for each person who is deported. This rule should be followed even in cases that the persons who are deported form part of the same family. The fact that in the majority of these cases, the children would follow the parents who have been expelled in the country of destination does not affect the application of this principle.
Furthermore, Article 8 of the ECHR protects the right to respect for family and private life, home and correspondence. It should be born in mind that the Strasbourg Court applies the following test in order to find whether there is an infringement of Art. 8 or not: a) Does the applicant enjoy ‘family life’? b) Is there a situation which requires ‘respect’ from the immigration authorities? c) Has there been an interference? d) Is the interference justified: (i) is it ‘in accordance with the law’?, (ii) in pursuit of a legitimate aim?, (iii) is it ‘necessary in a democratic society’?
In the case of the father’s deportation, it is indisputable that his relationship with members of the ‘core family’, namely his spouse and six children, constitutes ‘family life’ in the sense of Article 8 of the ECHR. There is also no doubt that the deportation order constituted an ‘interference’ with his right to respect for ‘family life’ pursuant to Art. 8(2), in line with the settled case law of the Strasbourg Court regarding deportation cases (see among others, Berrehab v. the Netherlands, 21 June 1988, Series A no. 138). Furthermore, with regards to the justification grounds of Art. 8(2), there is no particular reason to assume that the interference has not been ‘in according with the law’ and ‘in pursuit of a legitimate aim’. However, the question remains if the deportation was ‘necessary in a democratic society’. For assessing this, the Court applies a proportionality test and tries to strike a fair balance between the rights of the individual on the one hand (in this case, the right to respect for his or her ‘family life’) and the interests of the state on the other. The proportionality test is based on the Boultif criteria (as they were first applied in Boultif v. Switzerland, no. 54273/00, ECHR 2001-IX):
‘In assessing the relevant criteria in such a case, the Court will consider the nature and seriousness of the offence committed by the applicant; the duration of the applicant’s stay in the country from which he is going to be expelled; the time which has elapsed since the commission of the offence 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; other factors revealing whether the couple lead a real and genuine family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage and, if so, their age. Not least, the Court will also consider the seriousness of the difficulties which the spouse would be likely to encounter in the applicant’s country of origin, although the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself preclude expulsion’.
The Boultif criteria were later on enriched with two more principles (see Nunez v. Norway, no. 55597/09, 28 June 2011): ‘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 with the country of destination’.
In the case at hand, there are no indicators that the family did not lead a real and genuine family life in France. Moreover, the children do not speak the language and do not appear to have any cultural, social or family ties with the country of destination. In fact, following the arguments of the father, they had probably never even been in Kosovo before the day of the expulsion. Leonarda was attending school in France, she is at the ‘fragile’ age of 15 and she is definitely going to encounter serious difficulties in adjusting herself in Kosovo. In reality, she would have to start up her life again from the beginning, being in a country where she would feel she does not belong to. On the other hand, it is true that the irregular stay of the father in France counts against him but taken into consideration all the above, it should be concluded that this is a typical case where the best interest and the well-being of the children should prevail over the conflicting interests of the Contracting State which in this case would be the ‘economic well-being of the country’ or ‘the protection of the rights and freedoms of the others’ (for an approach that takes into serious consideration the best interest of the child, see among others Berrehab v. the Netherlands, 21 June 1988, Series A no. 138, Mehemi v. France, 26 September 1997, Reports of Judgments and Decisions 1997-VI, concurring opinion of Judge Jebens in Nunez v. Norway, no. 55597/09, 28 June 2011 and dissenting opinion of judges Jociene and Karakas in the recently decided Berisha v. Switzerland, no. 948/12, 30 July 2013).
Lastly, taken that the Boultif criteria are also applicable in cases that the immigrant enjoys ‘private life’ in the hosting state, it is suggested that for the reasons outlined above the family could also rely on the ‘private life’ protection of Art. 8 of the Convention.
In any event, the fact that the father was illegally residing in France does not essentially affect the obligation of the Contracting State to respect his right to ‘family life’ as guaranteed by the Convention. Relatively recent jurisprudence of the Strasbourg Court (see Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, ECHR 2006-I) indicates that the Contracting States may be obliged to regularize the illegal stay of a third-country national in order for his or her right to ‘family life’ to be respected. In a case like the present one, it seems reasonable to suggest that the French government should provide Leonarda and her family members with a residence permit valid at least until the minor children reach adulthood age and finish secondary education.
*PhD candidate at the Faculty of law, University of Barcelona