(Grand Chamber) The applicant came lawfully to Austria when 6. He committed a large number of offences when he was 14 and 15, and had been sentenced to imprisonment. He complained of a later decision to deport him.
Held: The court said: ‘ The Court would stress that while the criteria which emerge from its case-law and are spelled out in the Boultif and Uner judgments are meant to facilitate the application of Article 8 in expulsion cases by domestic courts, the weight to be attached to the respective criteria will inevitably vary according to the specific circumstances of each case. Moreover, it has to be borne in mind that where, as in the present case, the interference with the applicant’s rights under Article 8 pursues, as a legitimate aim, the ‘prevention of disorder or crime’ . . the above criteria ultimately are designed to help evaluate the extent to which the applicant can be expected to cause disorder or to engage in criminal activities.
In a case like the present one, where the person to be expelled is a young adult who has not yet founded a family of his own, the relevant criteria are:
– the nature and seriousness of the offence committed by the applicant;
– the length of the applicant’s stay in the country from which he or she is to be expelled;
– the time elapsed since the offence was committed and the applicant’s conduct during that period;
– the solidity of social, cultural and family ties with the host country and with the country of destination.
The Court would also clarify that the age of the person concerned can play a role when applying some of the above criteria. For instance, when assessing the nature and seriousness of the offences committed by an applicant, it has to be taken into account whether he or she committed them as a juvenile or as an adult (see, for instance, Moustaquim v. Belgium, judgment of 18 February 1991, Series A no.193, p.19, ss 44, and Radovanovic v. Austria, no. 42703/98, ss 35, 22 April 2004).
In turn, when assessing the length of the applicant’s stay in the country from which he or she is to be expelled and the solidity of the social, cultural and family ties with the host country, it evidently makes a difference whether the person concerned had already come to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult. This tendency is also reflected in various Council of Europe instruments, in particular in Committee of Minister Recommendations Rec (2001)15 and Rec (2002)4 . .
Although Article 8 provides no absolute protection against expulsion for any category of aliens (see Uner, cited above, ss 55), including those who were born in the host country or moved there in their early childhood, the Court has already found that regard is to be had to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there (see Uner, ss 58 in fine).
In short, the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion.’
Judges:
Jean-Paul Costa, P
Citations:
[2008] ECHR 546, 1638/03, [2009] INLR 47
Links:
Statutes:
European Convention on Human Rights 8
Jurisdiction:
Human Rights
Citing:
See Also – Maslov v Austria ECHR 22-Mar-2007
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Cited by:
Cited – MJ (Angola) v Secretary of State for The Home Department CA 20-May-2010
The applicant had been ordered to be deported and returned to Angola, but at the same time he was a detained mental patient. He argued that a return would breach his Article 8 rights.
Held: The respondent was entitled to decide to deport the . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Cited – Ogundimu (Article 8 – New Rules) Nigeria UTIAC 8-Feb-2013
UTIAC 1 The expectation is that it will be an exceptional case in which permission to appeal to the Upper Tribunal should be granted where the lodging of the application for permission is more than 28 days out of . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Immigration
Updated: 07 August 2022; Ref: scu.420795
