Article 8 of the European Convention on Human Rights aims to protect the individual against arbitrary interference in his or her private or family life. It is a qualified right, so that there is the possibility for state interference and states certainly have some discretion when applying the Article, thus, there is a certain ‘margin of appreciation’ given to member states.
The following essay will explore the extent of the margin of appreciation in relation to Article 8 in deportation cases. The first part of the essay will give consideration to the margin of appreciation doctrine in general, as this plays a crucial role in the interpretation of all of the Convention rights. The second part of the essay will then explore the evolution of Article 8 case law in the field of deportation. Here, a particular focus will be on deportation cases of long-term immigrants, so called ‘virtual nationals’. Lastly, the current position of case law on this issue will be examined and propositions for reform, which would narrow the margin or appreciation, will be put forward.
The margin of appreciation is a doctrine that plays a crucial role in the interpretation of the European Convention on Human Rights (ECHR). It refers to the amount of discretion the Court gives to national authorities when it takes legislative, administrative, or judicial action in the area of a Convention right. Thus, margins of appreciation are the “outer limits of schemes of protection which are acceptable under the Convention”.
The use of margins of appreciation allows the European Court of Human Rights (ECtHR) to keep in touch with legal reality where there is scope for differential application of Convention provisions while still retaining some control and supervision over member state conduct. The doctrine thus reflects the subsidiary role of the Convention in protecting human rights as the initial and primary responsibility for the protection of human rights lies with the contracting parties.
Moreover, one should note that the term ‘margin of appreciation’ does not appear anywhere in the ECHR. The Court created this doctrine because of the way many of the Articles are structured, with a first paragraph setting out the fundamental right protected, and a second paragraph which articulates a restriction or limitation of that right.
The main question in relation to this issue is: How much deference should the Strasbourg organs give to national authorities to determine whether a particular interference with a right is ‘necessary in a democratic society’? In Handyside v UK, the ECtHR said: “By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.”
It is, however, often difficult to decide how wide or narrow the margin of appreciation in relation to a particular right should be. On the one hand, when it is applied widely, so as to appear to give a state a blank cheque, it may be argued that the Court has abdicated its responsibilities. On the other hand, the Strasbourg institutions are not supposed to impose solutions from the outside without paying proper regard to the expertise of local decision-makers, instead, they should only review and monitor that member states act in accordance with the Convention rights. A wide margin of appreciation has for example always been afforded in cases concerning public morality and Handyside v UK shows the reluctance of the Court to interfere in the area of public morality when the domestic decision is at least sustainable on legitimate grounds.
Furthermore, it should be noted that the margin of appreciation doctrine is mostly relevant to qualified, as opposed to absolute rights as states do not have much discretion in relation to absolute rights such as the right to life in Article 2.
The doctrine of the margin of appreciation plays a significant role in the development of Article 8 case law as it gives states a degree of discretion in sensitive areas where the Court is reluctant to interfere with decisions made by those who have direct contact with the parties involved, or where a different approach is justified by local conditions. The essay will now examine the development of Article 8 cases in relation to deportation and it will be apparent that while the margin of appreciation in relation to these cases has become narrower in recent years, it is still relatively wide, leaving member states with a lot of discretion when deciding cases.
Article 8 of the ECHR has been involved in a number of cases in support of an individual’s right to remain in a Convention state. The established position is that the right to respect for family life does not in general involve a positive obligation to allow a family to establish itself in a particular country and the state is entitled to remove an alien for a good reason under Article 8(2), even where it might interfere with his family life. In such cases, the issue is that of balancing the applicant’s personal interests against those of the state.
In the United Kingdom, a person who is not a British citizen is liable to deportation from the United Kingdom in the following circumstances: “(i) the Secretary of State deems his or her deportation to be conducive to the public good; (ii) another family member to which he or she belongs to is to be deported; (iii) a court recommends deportation in case of a person over the age of 17 after conviction of an offence punishable by imprisonment”. Since most deportation cases which have been brought before the ECtHR in relation to Article 8 involve long term immigrants who have committed criminal offences, this essay will focus on this group of cases.
It should be noted that the relationship between Article 8 and national immigration law is a continuously evolving one and particularly cases involving second generation immigrants continue to procure controversy. In the first 30 years of their existence, the Strasbourg institutions remained mostly silent on matters of migration, something which is no coincidence, since the Convention contains no direct reference to immigration. This silence, reflects the original choice of the contracting parties to regulate migration flows without a supranational human rights superstructure and there was thus a very wide margin of appreciation as ECtHR interferences were rare.
However, the right to private and family life in Article 8 of the Convention allows indirect applications of immigrants who have strong social ties in the country concerned and Thym argues that the indirect relationship between the ECHR and immigration law is “the principal justification for the general margin of appreciation which the Contracting Parties enjoy in this policy field and which has consistently been upheld by the ECtHR”.
Notably, more recently, the Court has started to engage more constructively with the implications of immigration controls on family life. However, Article 8 deportation cases, particularly earlier ones, are often criticised for their lack of predictability and some say that the outcome of cases was “somewhat of a lottery”. To illustrate this unpredictability, one can look at two similar cases from the 1990s. In Boughanemi v France, no violation or Article 8 was found on grounds of the expulsion of a Tunisian national who had lived in France for 20 years since the age of eight, but had been sentenced to less than four year’s imprisonment. Contrastingly, in Beldjoudi v France, the Court found that the expulsion of an Algerian national who had been born in France but had been sentenced to a total of ten years imprisonment for a range of offences, was a violation of Article 8. The case-by case approach by the Court already received criticism in the 1990s, particularly from ECtHR judges, such as Judge Martens who expressed that this case-by-case approach was “a source of embarrassment for the Court”.
A significant step in development of Article 8 deportation cases was the Courts judgment in Boultif v Switzerland which sets out relevant criteria which need to be considered when assessing the likelihood that a decision will interfere with family life and if so, its proportionality to its legitimate aim. One should note here, that only the first two criteria, namely the nature and seriousness of the offence and the time elapsed since the commission of the offence and the applicant’s conduct since the offence, reflect the State’s interest in protecting society, whereas all remaining criteria attempt to measure the impact an expulsion order would have on the immigrant and his family.
Cases which followed Boultif and where violations of Article 8 were found include Amrollahi v Denmark and Yildiz and these decisions reinforce a move away from the dominance of State interests engendered by a greater emphasis on the need to fulfil positive as well as negative obligations under Article 8. In Yildiz, the Court expressed that in considering the proportionality of deportation as a response to criminal convictions, it will place considerable emphasis on the future threat a person might pose to public order, rather than confining itself to consideration of the past.
Furthermore, in Sen v Netherlands the court took this one stage further in acknowledging that long-term residents in Contracting States can themselves face obstacles in returning to their countries of origin, in particular, having to give up the settled status and integrated position that they and especially their children had achieved.
Moreover, recent developments in the judgments in Üner v Netherlands and Maslov v Austria show a deepening of the Court’s understanding of what is at stake for individuals in these cases and a move away from the a la carte approach”. Üner is of very high importance as the Grand Chamber in that case made explicit two further criteria, amending the Boultif guidelines, namely: “the best interests and well-being of the children” and the “solidity of the social, cultural and family ties with the host country and with the country of destination”.
The court’s recent case-law reflects a general acceptance that removal will normally constitute an interference with family life. Rather than requiring the applicant to establish that there would be insurmountable obstacles to family life being established elsewhere, the court has placed the burden of proof on the Contracting State to establish that an expulsion decision or refusal to admit would not constitute an interference with family life.
Whilst the focus of Boultif and cases that have followed it has been on ‘family life’, the court had previously begun to take cognisance of the fact that second generation migrants and long-term residents in Contracting States develop whole networks of social ties constituting ‘private life'. In relation to this, Judge Martens stated: “Expulsion severs irrevocably all social ties between the deportee and the community he is living in and […] the totality of those ties may be said to be part of the concept of private life”.
There has been considerable ECtHR case-law in relation to Article 8 deportation cases over the last two decades, indicating that the Court is willing to interfere in cases of deportation where a person’s family and or private life is not respected. The margin of appreciation has certainly been narrowed down, particularly since the introduction of the guiding principles in Boultif and Üner, however, it is submitted, that the margin of appreciation in deportation cases involving private and family life is still very broad.
In fact, there are a number of critics expressing that the margin of appreciation in relation to deportation cases, particularly in relation to long-term immigrants, is too wide and as a result fails to provide certainty in this area of the law.
As mentioned above, there is a lack of certainty in Article 8 deportation cases. Sherlock has noted unease because of “the uncertainty inherent in the case-by-case approach taken by the court in which it balances all the particular circumstances of the case before it”. This uncertainty exists, partly because the extended Boultif guidelines which are to be applied in such cases, involve ten criteria which do not have any hierarchy and the use of this “complex matrix of factors to determine the extent of the applicants’ ‘private and family life’ and the proportionality of their deportations” makes the Court’s balancing exercise highly complicated and unpredictable. As a result, the court’s approach in this field is criticized as being “a lottery”.
In order to improve certainty and fairness in relation to deportation cases, Berry suggests that “absolute protection against the expulsion of virtual national offenders would be the simplest approach, provide maximum protection and make the greatest contribution to fairness and consistency in the application of the law”. Berry, among others, points out the special status of long term of second generation immigrants and the protection of these ‘virtual nationals’ has also been advocated by the Parliamentary Assembly of the Council of Europe which has recommended the drafting of a Protocol to guarantee that those born or brought up in the host state cannot be expelled under any circumstances.
However, this proposition is not generally welcomed by the contracting states as “[t]he premise that the expulsion of these immigrants was always a disproportionate measure would, according to the Dutch Government, ‘entirely eliminate the margin of appreciation’ States enjoyed in immigration cases”. Furthermore, in Üner, the ECtHR clearly stated that no absolute right not to be expelled could be derived from Article 8, given the derogations available in Article 8(2), and that a State was entitled to control the entry and residence of aliens into its territory “regardless of whether an alien entered the host country as an adult or at a very young age, or was perhaps even born there”. One should bear in mind, however, that the ECHR is a ‘living instrument’ and that although the majority of contracting parties permit deportation of second generation immigrants convicted of a criminal offence, at least 8 now provide protection against it, of which six provide protection also to those raised but not born there. Thus, there is possibility that the law in this area might evolve further and provide absolute protection for long-term immigrants. This would result in a reduction in the number of disproportionate deportations and it would improve legal certainty. At the same time, it would however also significantly narrow the margin of appreciation enjoyed by member states.
To conclude, this essay has shown that the margin of appreciation in relation to deportation cases involving Article 8 of the ECHR is now broader than it was 20 years ago as ECtHR interferences are now more frequent. However, states still enjoy a relatively wide margin of appreciation and it has been argued in this essay that the margin of appreciation should be narrowed by providing an absolute prohibition on the deportation of long-term immigrants as this would provide legal certainty and fairness.
It should be noted that in relation to deportation cases involving Article 8, the ECHR has to weigh up the community interest of public safety against the individual’s right to private and family life and the development of the cases discussed shows a trend towards giving more importance to the applicants’ rights and as a result of more ECHR interferences, the margin of appreciation in this area has been narrowed.