November 27, 2017
By Benoit Dhondt, Belgian lawyer specialized in migration and refugee law. As a teaching assistant, he is also connected to the Human Rights Centre of Ghent University, more specifically its Human Rights and Migration Law Clinic.
Recently the ECtHR took an umpteenth swing at the question to what extent the family life and private life of a settled migrant with a criminal record is worthy of protection. At a time in which Council of Europe Member States, such as Belgium, have developed new legislation concerning the deportation of migrants allegedly posing a threat to public order, the case of Ndidi v. the United Kingdom does little to clarify the Court’s rather heterogenous case law in this matter. I will give a brief description of the case, after which I will propose a new approach to private life and family life in deportation cases, based on a reading of Euripides’ famous play Medea, and inspired by the dissenting opinion of Judge Turković to the case.
Mr. Ndidi and his mother entered the UK when he was just two years old. They entered legally but overstayed. Mr. Ndidi’s father joined them in 1991, and his siblings were born in the UK. In 1999 they were granted a right of residency, as a family. That same year, when Mr. Ndidi was just 12 years old, he received police cautions for serious offences, such as assault and robbery. In 2003 he was convicted of robbery and assault causing grievous bodily harm. Meanwhile, the family was granted permanent leave. His mother and siblings acquired UK nationality, while Mr. Ndidi was convicted for disorderly conduct and verbal abuse. In 2004 Mr. Ndidi was again convicted, this time for burglary, theft and impersonating a police officer. He was sentenced to a community punishment order of two hundred hours.
That same year the applicant was convicted of robbery and was sentenced to three years’ detention which led to the Secretary of State initiating deportation proceedings against Mr. Ndidi. Two years later the proceedings were dropped and Mr. Ndidi was officially warned that any future violations of the law would make him liable to deportation. In 2006 the applicant’s father was granted indefinite leave to remain in the UK. In 2008 the applicant pleaded guilty to the supply of Class A drugs and in 2009 he was sentenced to seven years imprisonment. The sentencing judge condemned his behaviour and actions and their nefarious impact on the broader society. He was released from detention on licence on 3 March 2011. Since then he committed no offences and fathered a child.
The day before his release, the 2nd of March 2011, he was served with a deportation order. The Secretary of State accepted that Mr. Ndidi enjoyed private life and family life in the UK, but considered deportation proportionate to the legitimate interest of preventing disorder. Mr. Ndidi appealed against this decision and on 8 June 2011 the First-tier Tribunal allowed the appeal on Article 8 grounds. It found that because of his history he was particularly dependent on his parents and that his ties with Nigeria were very weak. The fact that Mr. Ndidi showed remorse and gave assurances not to reoffend were also taken into account. The Secretary of State appealed the decision of the First-tier Tribunal and on 24 April 2012 the Upper Tribunal dismissed the applicant’s appeal against the deportation order. The Tribunal did not accept the particular dependency as an argument, and pointed out the long history of offending and the warning Mr. Ndidi received. Permission fo appeal was not granted to the applicant.
In its judgement, the Strasbourg Court accepted that deportation of Mr Ndidi would interfere with his family life with his son, and with his private life. It found, however, that the deportation order struck a fair balance between the applicant’s rights and the community’s interests. The Court has held that its supervision does not require it to assess the proportionality anew if the domestic courts have done so thoroughly and according to the Court’s relevant principles as established in the Boultif, Üner and Maslov judgments. The Court then turns to the assessment the domestic courts have made, and calls it a thorough and careful consideration. The Court remarks that since the only change in Mr. Ndidi’s situation was the end of his relationship with his partner and the restriction of contact with his son to alternate Saturdays, no strong reasons were provided to the Court to substitute its own assessment of proportionality for that of the domestic authorities.
In a rather poignant dissenting opinion Judge Turković points out that according to the principles established in A.A. v. the United Kingdom the Court ought to take into consideration the time which has passed since the offence was committed and the applicant’s conduct throughout that period. If the risk of reoffending is low and the applicant has behaved properly the Government needs to support their claim that there is an actual risk of disorder which renders deportation ‘necessary’. As Mr. Ndidi committed his last crimes over 10 years ago and has made serious efforts not to reoffend., Judge Turković holds that the Government should provide further proof of a reasonable threat of disorder which renders deportation necessary. She deplores that the Court goes against this partial shift in the burden of proof as established in the A.A. judgment, and now demands an “exceptional” change in behaviour, which goes beyond rehabilitation.
Although fixed criteria might be incompatible with the necessity of flexible appraisal, this should not have to mean that the Court forfeits consistency. Judge Turković stresses the need for consistency and clarification in a rather complex paragraph in which she refers to problems that originate in a “poor record in terms of integration efforts, especially with regard to second-generation migrants”. One can only assume that the Judge means that the onus of this bad track record of integration lies with the Member States as she points out that the private- and family-life claims of long-term migrants actually overlap with the public interest instead of being antithetical to it. In a final paragraph, Judge Turković points out that in the domestic procedures in the case, the best interest of Mr. Ndidi’s child has hardly been the object of much consideration and was treated as a mere box to be ticked, which should in itself constitute a procedural violation of Article 8 of the Convention.
The Ndidi judgment, and the abandonment of the reasoning established in A.A. coincide with hardening stances on migration and public order in some of the Member States, and among which in Belgium. In Belgium two new laws have been adopted this year which abolish the protection from deportation for persons born in Belgium and persons having arrived there before their 12th birthday. Other protective measures were also curtailed, such as the the assessment of their family life and private life under article 8 of the Convention by an independent commission, which was abolished by the new laws.
As more and more emphasis is being put by the Court on the individual responsibility of the persons affected by the deportation order, a different approach, more in line with the suggestions of Judge Turković seems appropriate. The Court has stressed time and time again that if family members were aware of the precarious migration status of an applicant, or of his criminal record, or if the applicant had been warned, as Mr. Ndidi was, this somehow facilitates a shift of responsibility for the violation of article 8 from State to subject. While the fact that an applicant had arrived in the Member State at a young age played a significant role in its earlier jurisprudence, the Court seems to have abandoned this position in the Ndidi judgment and now requires an extraordinary integration on part of the applicant.
A reading of Euripides’ play ‘Medea’ could help us understand the relevance of a new approach, an approach that takes into account to what extent the migration effort was voluntary, and the vulnerability in the host country that flows from it. Medea abandoned her native Colchis to follow Jason to Corinth. Away from her home country, she remains a stranger in the country where their children are born. After ten years Jason leaves her for another woman, the daughter of the ruler of Corinth, Creon. Creon, afraid of what Medea might do, banishes her and her children from Corinth. Medea ensures herself of protection in Athens, and takes gruesome revenge on Jason by poisoning Jason’s new wife, Creon, and her own children.
What we can take from Medea in the reading of the article 8 ECtHR case law is not its ghastly ending, but the description of her plight as an immigrant. She did not migrate out of her own free will, but followed a family member. She was severed from her home country and lives now without the protection of land or people. The protection she enjoys, if any, is wholly conditional. She is “a foreign woman, coming among new laws, new customs, (who) needs the skill of magic (…)” (Euripides, Medea, and other plays, The Penguin classics, 1963, p. 24). She laments: “I have no city (…) I was taken as plunder from a land, At the earth’s edge. I have no mother, brother, nor any Of my own blood to turn to in this extremity” (p. 25). The choir affirms: “A wanderer, where can you turn? To what welcoming house? To what protecting land?” (p. 28). As the precarity of her status as a migrant becomes clear, Medea concludes: “And here, living in a strange country, Your marriage lost, your bed solitary, You are driven beyond the borders, An exile with no redress” (p. 30). “O my country, my home! May the gods save me from becoming A stateless refugee, Dragging out an intolerable life In desperate helplessness!” (p. 36). “Of all pains and hardships none is worse , Than to be deprived of your native land” (p. 37).
The play lays bare the painful paradox of being ‘less’ than an ordinary citizen, As Medea puts it: “Of course a stranger must conform; even a Greek should not annoy his fellows by crass stubbornness” (p. 24). As a stranger, one must behave better than an actual citizen, which is reasonable to the extent the Court addresses this in paragraph 56 of the Üner judgment, but at the same time it also adds to the stranger’s vulnerability. Euripides’ Medea catches the essence of this vulnerability better than the Court in its article 8 case-law. The question rises to what extent it is reasonable to treat a resident with migration status worse than a national if there never was an actual choice to migrate to begin with. In case migration is something that was decided for you, instead of by you, to what extent should we rely on such an ephemeral construct as personal responsibility? What is to be expected of such an approach, and what results for the public interest will it generate? How will it affect the children who are left fatherless? Will they grow up resenting the government that expelled their parent? Will the deportation order genuinely contribute to public order, and are these results durable in the long run? Is the removal of a perceived threat to the public order an actual remedy if it entails but a transplant of the problem to another place, a place that is less known to the applicant and will, in all likelihood, have less of a grip on this person. And of course, reading Medea brings to mind the consequences of this transplant; how will the ‘new’ country react to this ‘return’ of a convicted criminal, the one who’s “presence is pollution” (p. 43)?
It is debatable whether it is up to the Court to take these last factors into consideration as this threads in the murky zone between policy and justice. But as the fundamental rights of migrants become harder to ensure, and safeguarding mechanisms are subjected to increasing pressure of populist reasoning, we are in dire need of the consistency and clarification Judge Turković is advocating for. The holistic assessment of public interest, taken to include the fundamental rights of migrants instead of seeing one as the negation of the other, might hold the key to future balancing efforts safeguarding family life and private life as an integral part of the common good.
 See notably Boultif v. Switzerland, 2 August 2001, no. 54273/00, § 48; and Biao v. Denmark, 25 March 2014, no. 38590/10, §52.