Unuane v United Kingdom: ECtHR finds violation of Article 8 in case of deportation following prison sentence

Tuesday, November 24, 2020

On 24 November 2020, the ECtHR published its judgment for the case of Unuane v United Kingdom (Application no. 80343/17). 

The case concerns the deportation of a Nigerian national who served a prison sentence for the falsification of ‘leave to remain’-applications. His partner was also convicted for this offence. The couple has three children; B, C and D, who suffers from a serious heart condition. Deportation orders were issued against Mr Unuane, his partner and their minor children. While the UT allowed his partner’s appeal, concluding that the effect of separating her from the minor children would be “unduly harsh” on the children, it did not allow Mr Unuane’s appeal. He was deported in February 2018. 

The applicant complained that the Immigration Rules stopped the Upper Tribunal from conducting a thorough human rights assessment of the proportionality of his deportation. The ECtHR considered previous national case law including MF(Nigeria) and Hesham Ali (Iraq). It held that the Immigration Rules did not necessarily preclude domestic courts from applying the criteria set out in Boultif, which include the nature and seriousness of an offence, the best interests of the children and the social, cultural and family ties that a person has with their country of origin. The Court also noted that, when considering the seriousness of a crime, it tended to consider the seriousness not by reference to the length of sentence, but rather by reference to the nature and circumstances of a particular criminal offence and its impact on society as a whole.
The applicant further complained that his deportation from the UK was a disproportionate interference with his right to respect for his family and private life. The ECtHR ruled that in reference to Mr. Unuane’s application, the UT merely stated that there were “no compelling circumstances over and above what had been applied in his partner’s case”. The UT neither made any further adverse findings nor conducted a separate balancing exercise. As such, it fell to the ECtHR to give the final ruling on whether the expulsion was reconcilable with Article 8. The Court noted that the UT had acknowledged the strength of Mr Unuane’s ties to his partner and children and the fact that they would need him for support, particularly on account of D’s medical condition and forthcoming surgery. It also noted the significance of UT’s acceptance that it was in the best interests of the children for Mr Unuane to remain in the UK. 

The Court unanimously agreed that the UT’s conclusion was irreconcilable with Article 8 and considered that the nature or degree of seriousness of the offence committed by the applicant did not outweigh the best interests of the children so as to justify his expulsion.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Best interest of the child
Family unity (right to)