Makdoudi v Belgium: Deportation order without consideration of applicant’s paternity status breached Article 8 ECHR

Tuesday, February 18, 2020

On 18 February 2020, the European Court of Human Rights published its judgment in the case of Makdoudi v Belgium (Application No. 12848/15).

The applicant, a Tunisian national who arrived in Belgium in 2008, was arrested in 2009 for various offences and sentenced to 42 months imprisonment. In 2011, he informed Belgian authorities that he was the father of a child with Belgian nationality. A deportation order was issued in 2011 and the applicant returned to Tunisia in July 2016 with a prohibition on re-entry. He complained that the available domestic remedies to challenge the lawfulness of his detention had prevented domestic courts from issuing a final decision on his detention contrary to Article 5(4). He also complained that his removal and ban on re-entry without consideration of his paternity status violated his right to family life under Article 8 ECHR.

The Court noted, inter alia, that no final decision on the lawfulness of his detention was taken into account before his release in September 2014. The applicant’s inability to obtain a prompt decision on the lawfulness of his detention therefore amounted to a violation of Article 5(4).

On the applicant’s complaint under Article 8, the Court noted, inter alia, that the existence of family life must be assessed in light of the situation at the time the removal order was issued. As such, the removal order did amount to an interference with the applicant’s right to family life. It added that the authorities had failed to provide relevant and sufficient reasons for its decisions. In this case, the authorities had failed to show that the removal of the applicant corresponded with a pressing social need or was proportionate to the aims pursued.   

Based on an unofficial translation by the EWLU team. Photo: Matthias Ripp, January 2016, Flickr (CC)

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Assessment of facts and circumstances
Family unity (right to)