It’s rare to get a slobber-knocker of a case from the European Court of Human Rights like Unuane v The United Kingdom (application no. 80343/17). The court unanimously found that the UK’s supposedly Article 8 compliant deportation rules don’t preclude judges from following the correct approach to assessing the proportionality of deportation, and that the Upper Tribunal had failed to do so in Mr Unuane’s case, breaching Article 8. 

Background: conviction for immigration offences

The conviction which led to deportation proceedings against Charles Unuane and his family was for falsifying around 30 visa applications, together with his wife. Mr Unuane was sentenced to five and a half years in prison and his wife got 18 months. The couple had three children, B, C and D.

D, unlike his siblings, had been a British citizen since birth. He had been diagnosed with a congenital heart defect and had undergone multiple open-heart surgeries. B and C only obtained their British citizenship later, by registration, and so initially the whole family apart from D was served with a deportation order. 

The case was heard in the tribunal before section 117C of the Nationality, Immigration and Asylum Act 2002 came along (wasn’t that a lifetime ago?). The law at that time required Mr Unuane to show “exceptional circumstances” to succeed in his appeal against deportation. 

The domestic proceedings

At the tribunal, a consultant paediatric cardiologist gave evidence to the effect that sending D to Nigeria would have a significant impact on his long-term future, particularly given that treatment for his heart defect was not available in Nigeria. There was also a probation report saying that Mr Unuane was not at risk of re-offending.

The Upper Tribunal did not have much of an issue finding that it would be in the best interest of the children to stay in the UK; they had never known Nigeria and their parents were not well-connected there. In the same vein, D’s cardiologist said that D would need surgery again in the next few years and the tribunal found that Mr Unuane’s wife should be allowed to stay to support D through that difficult period.  

That only left Mr Unuane himself. The tribunal found that he did not have any compelling circumstances which justified him remaining in the UK. In other words, the judge deemed it OK to allow mum and the kids to stay here without him. The Court of Appeal wasn’t interested in granting permission to appeal and he was deported in February 2018. 

Violation of Article 8

His two main complaints in Strasbourg were:

• That the Immigration Rules stopped the Upper Tribunal conducting a thorough human rights assessment of the proportionality of his deportation; and 
• That his deportation from the United Kingdom disproportionately interfered with his Article 8 rights.

On the first point, the Strasbourg court took a trip down memory lane and considered the case law on the deportation rules introduced in July 2012, which began with MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC) and culminated in the Supreme Court’s judgement of Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60. The court took the essence of that case to be that a decision-maker needs to, in the words of Lord Reed:

… make their own assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law. But, where the Secretary of State has adopted a policy based on a general assessment of proportionality, as in the present case, they should attach considerable weight to that assessment…

It also noted that in Hesham Ali:

Lord Thomas… recommended that tribunals conducting the proportionality assessment “follow…the ‘balance sheet’ approach”. The “balance-sheet” approach requires a judge, having found the facts, to set out each of the “pros” and “cons” and then set out reasoned conclusions as to whether the countervailing factors outweigh the importance attached to the public interest in the deportation of foreign offenders.

On that basis, the European court said that the Immigration Rules did “not necessarily preclude” domestic courts from applying the criteria in Boultif v Switzerland (application no. 54273/00). Those criteria include the nature and seriousness of the offence, the best interests of the children and the social, cultural and family ties that a person has with their country of origin.

On the second point, the court unanimously agreed that the deportation was not “necessary in a democratic society”. Although the Upper Tribunal had weighed various factors in the balance, they had applied them only to Mr Unuane’s wife. When it came to Mr Unuane himself, the tribunal simply said there were “no very compelling circumstances over and above those which had applied in respect of his partner” and left it at that.

Conducting the balancing exercise that the tribunal ought to have carried out, the court noted the factors weighing in Mr Unuane’s favour:

The Upper Tribunal itself acknowledged the strength of the applicant’s ties to his partner and children, all of whom would stay in the United Kingdom. It also acknowledged that his partner and children needed him, and this need for parental support was particularly acute in the case of D on account of his medical condition and forthcoming surgery. Finally, it accepted that it was in the best interests of the children for him to remain in the United Kingdom, a factor which, according to the Court’s case-law, must be accorded significant weight (see Krasniqi v. Austria, no.41697/12, § 47 25 April 2017).

As such, “the seriousness of the particular offence(s) committed by the applicant was not of a nature or degree capable of outweighing the best interests of the children so as to justify his expulsion”. Deportation was “disproportionate to the legitimate aim pursued” and not “necessary in a democratic society”.

What does this mean in practice?

It’s astonishingly rare for a client whose case against deportation under the Immigration Rules has failed to go on to succeed outside the Rules under Article 8. Although in theory there is a second stage of analysis to be undertaken, in practice the failure under the Rules is usually treated as the starting point for the Article 8 analysis. This case does a lot to reinforce the fact that the Article 8 assessment is not a foregone conclusion and there are cases which can succeed where the Rules are not met. 

Will this potentially lead to more cases which fail at the domestic level being brought before the Strasbourg court? One barrier is the significant delays in getting a decision there — and even then, what is the practical effect? There was no suggestion that the UK government now intends to allow Mr Unuane to return to the UK, although he could now apply to have the deportation order revoked. He was awarded €5,000 in damages but that doesn’t really help when you are thousands of miles away from your wife and kids.  

Moving from the legal to the political impact, the ruling is likely to light a fire under Priti Patel and her colleagues on the right of the Conservative Party who oppose membership of the European Convention on Human Rights.

On a final note, huge congratulations to Nicola Burgess and the team at JCWI, who represented Mr Unuane, on this wonderful result.