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Déjà vu as Strasbourg approves deportation of Nigerian drug trafficker


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The judgment of the European Court of Human Rights in T.C.E. v Germany (application no. 58681/12) has a whiff of Groundhog Day. For the second time in just over six months the court found that a Nigerian national convicted of drug-related crimes could not prevent deportation by relying on his relationship with his child.

Crimes and deportation order

T.C.E. left Nigeria aged 19 to live in Europe. He entered Germany with his girlfriend in 2000 for the birth of his daughter, a German national.

Following his daughter’s birth T.C.E. was granted a temporary residence permit based on family ties. He jeopardised his residency in 2002 when he was sentenced to eight years in jail for drug trafficking. The following year a domestic court ordered his expulsion to Nigeria upon release from prison.

But after his release T.C.E. was granted exceptional leave to remain, because he did not have a valid passport — making his 2003 expulsion order impossible to execute. In September 2009 he applied for a residence permit based on family ties with his daughter. Between 2010 and 2012 multiple domestic courts refused his application. T.C.E. has remained in Germany pending his Strasbourg application and since 2011 has been convicted once for fraud and twice for theft.

Relying on Article 8

T.C.E. was not challenging the 2003 decision to deport him. Instead his application

exclusively concerned the issue of whether the applicant was entitled to a residence permit despite the final expulsion order against him. In other words, the issue at stake is not whether the expulsion order, which became final in 2003, complied with the criteria established by the Court’s case-law in this regard… but rather whether or not the subsequent refusal of a residence permit was in breach of Article 8 of the Convention.

T.C.E. challenged the German authorities’ refusal to grant him a residence permit on the basis of his family life with his daughter. In particular he argued:

  1. The public interest in preventing disorder and crime did not outweigh his family life, as he had not committed drugs-related offences since his daughter’s birth; and
  2. The German courts did not attach sufficient weight to his daughter’s best interests, who had no links to Nigeria and, for financial reasons, could not visit him there.

A familiar scenario, with familiar results

Regular readers of this blog may have a sense of déja vu. The facts of T.C.E.’s case bear several similarities to a fellow Nigerian national in last year’s Ndidi v United Kingdom judgment. Both men were detained following convictions for drug-related offences. Both men had a child with the nationality of the country in which they wished to remain. Both men relied on their Article 8 rights.

In several respects T.C.E. had less compelling facts than Mr Ndidi. His crimes were more serious (trafficking as opposed to dealing), he had spent less time living in the relevant jurisdiction and his child was older. Additionally, T.C.E. was an adult at the time of his criminal conviction and had reoffended following his release from prison.

Unsurprisingly the outcome of T.C.E.’s case replicated that of Mr Ndidi. Neither man was successful in relying on Article 8 to prevent his deportation. In both cases the Strasbourg judges were unanimous.

Ultimately T.C.E. v Germany continues a heterogeneous line of Strasbourg case law in which the court continues to hold the Article 8 reigns tightly in deportation cases. The Court had “certain reservations” regarding the way in which the German courts had assessed and weighed the best interests of T.C.E.​’s daughter (see paragraph 62), but nevertheless deferred to the domestic courts.

This underscores that national authorities retain a wide margin of appreciation when balancing the public interest against the family life of an immigrant offender. In short, deportation cases continue to be won or lost in domestic courts.

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Clare Duffy

Clare Duffy

Clare is a public law teaching fellow at University College London.