In a recent ruling from the European Court of Justice in Strasbourg the Court ruled that the expulsion of a settled migrant who was convicted of rape in September 2002 constituted an interference with his right to respect for a private life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In September 2000 a 13 year old Nigerian national came over to the UK to live with his mother who was already residing in the UK. Two years later at the age of 15 he was convicted, along with a group of other boys, of raping a 13 year old girl. He was sentenced to 4 years in a young offenders institute, but after 1 year 10 months he was released as he was considered to pose a low risk of re-offending. In July 2004, a month before he was due to be released, he was served with a deportation order on the ground that his expulsion was necessary in a democratic society for the prevention of disorder and crime. The applicant appealed this decision. Initially his appeal was allowed by an immigration judge in 2005, but it was later overturned by the Asylum and Immigration Tribunal in January 2007. After being refused permission to appeal to the Court of Appeal in 2008 the applicant decided to appeal to the European Court of Human Rights on the grounds that his deportation would violate his right to respect for his private and family life under Article 8 of the European Convention on Human Rights. Although Article 8 protects a person's right to a private and family life, the State can also place restrictions on this right if it is deemed necessary in a democratic society, for example for the prevention of crime and disorder. Factors that should be taken into consideration when determining if deportation is necessary in a democratic society include: • The nature and seriousness of the offence; • The length of the person's stay in the UK • The time elapsed since the offence; • The applicant's conduct during that time; and • The applicant's family situation and solidity of cultural, social and family ties. It is usually the responsibility of the domestic courts to decide in the context of the case before them what the relevant factors are to consider, but in this case the European Court of Justice gave a final ruling on the matter. The Court held that although the offence was a serious one, the fact that he was a minor had to be taken into consideration. In addition, although the applicant had not yet founded a family of his own in the UK, his social ties were fairly strong as he had completed his education in the UK and gained stable employment. The three year time lapse since the deportation order was also a significant consideration, as the failure by the government to take action to deport him did not support their contention that his deportation was necessary in a democratic society. As a result the Court ruled that the applicant's deportation was a violation of his Article 8 right to a private and family life and he was permitted to remain in the UK. For additional information please contact Alexandra Dean of Gepp & Sons on 01245 228141. The above is not legal advice; it is intended to provide information of general interest about current legal issues.
