Strasbourg Observers

Unuane v United Kingdom: does the Convention require “pure” proportionality?

December 23, 2020

By Lewis Graham (PhD Researcher at Pembroke College, Cambridge)

The Fourth Section recently delivered its judgment in Unuane v United Kingdom, in which it found that the UK had breached Article 8 ECHR through approving the deportation of an individual without properly evaluating the impact this would have on his private and family life under Article 8 ECHR. The case is important not only for its conclusions on the UK’s deportation scheme, but also for what it clarifies (and, disappointingly, what it does not clarify) about what immigration and deportation schemes across Europe must do in order to be considered compatible with Article 8 ECHR.

Unuane v UK

The facts of the case are relatively simple. The applicant, Unuane, is a Nigerian national who lived in the UK with his partner, a British citizen, for twenty years. They had three children together and raised them all in the UK. In 2009, he was charged with offences relating to the falsification of travel documents and was sentenced to prison for five years and six months. Around a year after his release, the Secretary of State sought to remove him from the country. He challenged his deportation order before the domestic tribunal. In order to understand what that tribunal had to consider, it is important to first set out – as simply and as briefly as possible – the domestic law applicable in Unuane’s case. So far as is relevant, that law is as follows:

  • Section 32 of the UK Borders Act 2007 states that the Secretary of State “must” deport any “foreign criminal”. A “foreign criminal” is defined as anyone who is not a British citizen, and is convicted of an offence which generates a prison sentence of at least one year.
  • Section 33 of the same Act states the above obligation will not apply where the removal of an individual would breach their rights under the ECHR.
  • Paragraphs 398 and 399 of the 2012 Immigration Rules state that there exists a particularly significant degree of public interest in the removal of any foreign criminal who serves more than four years in prison, and that the private and family life rights of the deportee would only outweigh this public interest in “exceptional circumstances”.
  • Section 19 of the Immigration Act 2014 amended the Nationality, Immigration and Asylum Act 2002, requiring that when a national court assesses whether deportation would breach an individual’s rights under Article 8 ECHR, they should rule that it would not, unless the applicant would fall within one of two “exceptions”: either they have been resident for most of their life and there would be significant obstacles to their integration to another country; or that deportation would have an unduly harsh impact on the deportee’s partner or children.
  • The same Act states that if the applicant challenging their deportation had served more than four years in prison, “very compelling circumstances” over and above those set out in the two above exceptions would be required in order to successfully demonstrate that the public interest in their removal be outweighed by their human rights.
  • The 2014 Immigration Rules essentially transpose this test into the deportation rules.

The result is that for a “foreign criminal” who had served more than four years in prison, such as the applicant in this case, the Immigration Rules meant that demonstrating that they had a spouse and child, and long-term social integration, would not be enough to resist deportation: they needed to show “very compelling circumstances” on top of this to be successful.

Applying these rules, the Tribunal in Unuane’s case dismissed his appeal against deportation. Although it accepted that he had significant family ties, that it was in his children’s interests for him to remain with them, and that he had been in the UK for the majority of his life, this was not enough to meet the test set out in the Rules – he had not demonstrated the required “very compelling circumstances” needed to resist the presumption of deportation. After being refused permission to appeal this decision, the applicant sought relief from Strasbourg, which was required to determine two questions: firstly, did the national law allow for the proper consideration of his ECHR rights, namely his right to a family life? Secondly, on the facts, was his deportation an interference with his private life? Did the courts properly conduct the right exercise to determine this, and did they come to the right conclusion?

The compatibility of the national scheme

Why might the national scheme raise a problem when it comes to Article 8 ECHR? Strasbourg has developed jurisprudence which sets out a number of factors which national authorities must take into account when considering deportation. In the spirit of co-operation with national states, the ECHR has adopted the principle that, ordinarily, when it comes to the question of the lawfulness of deportation and its compatibility of Article 8 ECHR, it will ordinarily refrain from interfering in the conclusion arrived by the national authorities in this respect, so long as that conclusion was itself the result of a proper Convention-compliant balancing exercise, which adequately applies the Article 8 case law to the facts of each case. 

That case law requires that, in evaluating whether removal would breach Article 8, national courts should consider:

  • 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.
  • 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.

The applicant’s argument in this case was that the Immigration Rules did not allow for a Convention-compliant evaluation of his Article 8 claim. The Guidance, after all, listed only two factors which should guide such an evaluation, and for those who had served more than four years in prison, even satisfying those conditions was not enough, as additional “very compelling circumstances” were required to prevail. The many factors set out above could not be part of the evaluation. They therefore did not allow for a proper and full evaluation of the proportionality of the deportation (or, put another way, they required those relying on Convention rights to pass a more stringent test than one based on proportionality) and effectively authorised the removal of individuals in circumstances which would breach their Convention rights.

That argument, on its face, is a powerful one. Indeed, in its assessment in this case, Strasbourg reiterated that national courts are required to conduct a fairly rigorous balancing exercise; after listing the above factors it emphasised that “all [of those] factors should be taken into account in all cases” (para 74, emphasis added). Only if the national courts had done this would Strasbourg defer to their conclusion on the facts (para 76); it follows that only if the national courts were able to do this would Strasbourg consider the state to have complied with their obligations under Article 8.

In determining whether the national framework complied, Strasbourg made reference to an earlier judgment of the UK Supreme Court – the case of Ali – which dealt with practically the same issue. In that case, the Court focused on the fact that when assessing the lawfulness of deportation, national courts were entitled, regardless of the length of any prison sentence served, to consider whether any “exceptional circumstances” were in play (this language differs slightly from the operational language in Unuane’s case, but the difference between the “exceptional circumstances” threshold and “very compelling circumstances” threshold is immaterial for present purposes). According to the Court, the ability to assess whether any such “exceptional circumstances” were in operation meant that courts were, in effect, able to consider grounds beyond those otherwise explicitly set out in the Rules, including those required by the ECHR case law. As a result, the Rules did not operate in a way which prevented an examination of the full proportionality of any deportation. The balancing exercise required by Strasbourg was possible under the Rules, even if that balancing exercise was stacked in a certain direction.

In a relatively sparse section of the judgment – the real substance of the Court’s reasoning here ran to just three paragraphs – the Court accepted this line of reasoning. Pretty much adopting the reasoning of the majority in Ali, the Court held that since the domestic courts had confirmed that they would interpret the Rules in such a manner as to bring in an evaluation of all of the factors required in the case law, the Rules could not be considered incompatible with Article 8; they did not prevent a judicial assessment of the proper proportionality of deportation orders.

The law in practice

So, should we be confident, as Strasbourg was, in believing that the Immigration Rules are being interpreted in a way which complies with Article 8? Is this conclusion really satisfying? It is understandable that Strasbourg would rely on statements of high judicial authority when determining how the national Rules worked in practice (although relying solely on those statements to reach its conclusion, rather than looking at the framework itself, feels uncomfortably passive, especially considering that read literally, the Rules do seem to prevent a proportionality analysis from being undertaken). It is beyond the Court’s remit to definitively conclude whether those statements reflect an accurate account of how the Rules are being interpreted in practice.

But some widespread examination of this kind may not be necessary; scepticism might have been pricked when the Court turned to the examination of Unuane’s case on the facts. Despite accepting the argument that the Rules invited national judges to undertake a proper Convention-compliant balancing exercise when assessing the lawfulness of a deportation order, the Court went on to find a breach of Article 8 in the applicant’s case, precisely because the tribunal assessing his case did not conduct the balancing exercise required. The tribunal had applied the Rules in a way which did not allow for a full examination of factors beyond those expressly set out therein. As a result, Unuane could not have said to have had the benefit of a full proportionality assessment in line with the requirements of the Convention. He was denied a proper assessment of his Article 8 claim.

This immediately casts doubt as to whether the judicial gloss in Ali is sufficient to ensure that Article 8 is properly considered in deportation cases. The tribunal in Unuane’s case was deemed to have misapplied the Rules, although the tribunal was applying them in a common sense, fairly literal manner, and if the tribunal did act in error, it was not one which was noticed by any appellate court. It is worth noting, however, that a cursory look at some of the recent case law (which, unlike Unuane’s case, came after the Supreme Court’s “clarification” of the law in Ali) reveals that the approach taken by the tribunal here was not particularly exceptional, although the cases paint a somewhat inconsistent picture in this respect.

On the one hand, national courts and tribunals have quoted from the Ali judgment frequently, and have stressed the need for an appropriate balancing exercise repeatedly. Sometimes courts have emphasised that all circumstances should be considered when assessing the legality of deportation, not just those explicitly set out in the Rules. They have emphasised that they will consider all relevant factors, not just the two highlighted in the Rules (Garzon) and appellate courts have allowed appeals where this has not been properly done (Akinyemi).The Court of Appeal has stressed that in this context tribunals should be very clear about their reasoning and the factors they have taken into consideration in order to avoid giving the impression that they had not properly considered the rights arising under Article 8 (AS).

On the other hand, the language of the “very exceptional circumstances” criterion has been brought into perhaps undue focus, in a way which arguably robs the idea of balancing of real meaning (OH). There are certainly a number of cases in which the Rules have been interpreted quite restrictively, whereby – much like in Unuane’s case – there is little evidence of any factors beyond those listed in the Rules being taken into account. The Court of Appeal has also upheld some very bare exercises of “balancing” in this respect (Garzon; Quarey). Therefore, perhaps unsurprisingly, the best that could be said of the domestic approach to the Rules is that they are sometimes interpreted in the robust, expansive manner set out by the Supreme Court, and accepted by Strasbourg in this case.

Strasbourg swerves again

This mixed picture is likely to due to confusion about how the Rules should operate. Unfortunately, by quickly ruling that the domestic Rules do not breach the Convention, without too much further elaboration as to why it had reached that position, Strasbourg may have only served to confuse matters further. This is because it completely dodged the fundamental question of whether it is ever permissible for national authorities to dictate that certain factors should be given extra weight when assessing whether deportation would breach Article 8. Indeed, this issue divided the Supreme Court in Ali; Lord Reed thought that the Convention framework could “accommodate, within limits, the judgments made by national legislatures and governments in this area” (Ali at [35]). In contrast, Lord Kerr thought that “the ECtHR cases do not permit a national policy which limits or dictates the weight to be given to the [relevant]factors in the article 8 balancing exercise” (Ali at [120]).

This division is not limited to the Supreme Court: there is again a degree of inconsistency when it comes to the approach of national courts in this respect. Whilst in some cases (e.g. GM at [29]) courts have suggested that Article 8 demands that a free-standing balancing exercise be undertaken, and that it cannot be interpreted as imposing any other standard (akin to Lord Kerr’s view), on other occasions (e.g. EJA), appellate courts have chastised tribunals for applying exactly this kind of free-standing balancing under Article 8, without having due regard to the text of the Rules and the weight given to the factors outlined there (akin to Lord Reed’s view).

Which was correct? By simply saying that the national rules satisfied Article 8 in abstract, Strasbourg left this important question open. In effect, Strasbourg has announced that the UK’s Immigration Rules meet a certain standard, but it has not quite set out what that standard is. And the answer to this question is important for the domestic interpretation of the Rules (and the interpretation of similar schemes across European countries). Fundamentally, it is not clear whether the Rules are considered compatible with Article 8 because (1) although they give weight to certain factors, they do not do so to a severe enough extent so as to unlawfully fetter the judicial exercise required (in which Article 8 requires only “sufficient proportionality”) or (2) in practice, they are being interpreted in a manner which does not place a particular weight on any given factor (in which Article 8 requires “pure proportionality”). If the first view is correct and the Convention requires only that national authorities examine deportation with “sufficient proportionality”, then national authorities may dictate that particular weight should be given to certain factors, so long as this does not remove the possibility for at least some kind of balancing, much in line with Lord Reed’s view in Ali, above. If the second view is correct, and the Convention requires “pure proportionality”, then it seems national authorities may not tell to their judges how the Article 8 balancing exercise should be carried out, a position in line with Lord Kerr’s view. Clearly, “sufficient proportionality” and “pure proportionality” are two very different standards. They also contradict one another, with the first permitting that which the second expressly prohibits. Failing to confirm the correct view is therefore problematic for legal certainty – particularly for domestic courts applying the Convention case law in an area already fraught with uncertainty.

Concluding thoughts

The Court’s judgment here is a mixed bag. On the one hand, the confirmation that the protections under Article 8 cannot be completely ousted by policy is welcome, as is the Court’s criticism of the inflexible approach adopted by the domestic tribunal in this case. It is likely that Unuane and his family will be thankful that their expulsion has been prevented – for now – and others facing a similar situation may be grateful for the Court’s reminder of the importance of the right to a private and family life in the deportation context. But the judgment is not all positive – important issues remain open, both in terms of the operation of the UK’s Immigration Rules as well as how contracting states may design immigration and expulsion mechanisms. Crucially, the question of whether the Article 8 balancing exercise which must be conducted by national courts when considering the lawfulness of deportation must be “pure” or merely “sufficient” – and therefore how far national authorities can dictate that certain weight be placed on particular aspects of the “Strasbourg criteria” in this respect – remains unresolved. It is a great shame that Strasbourg did not feel compelled to try and resolve this and other matters when given the opportunity to do so. The result is that the operation of safeguards in the UK’s deportation framework remains uncertain.

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