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David Ball Acts for Successful Applicant before European Court of Human Rights

25th November 2020

In a potentially important decision the European Court of Human Rights (the Court) has found a breach of human rights for someone deported after a sentence of 5 ½ years (Ununane v UK, App No 80343/17, 24 November 2017).

Charles Unuane was a father of three children with his partner. Both he and his partner were Nigerian nationals who faced deportation. Together they were convicted of conspiring to forge documents for 30 applications for leave to remain. He was sentenced to 5 ½ years and his partner to 18 months. Their oldest child was British and had a rare congenital heart defect. The Upper Tribunal allowed the partner’s appeal but dismissed Mr Unuane’s appeal. They found that the eldest child could not be expected to leave the UK, and that it would be undesirable to split the siblings. They allowed the partner’s appeal because they found it would otherwise be “unduly harsh” on the children. As Mr Unuane had been sentenced to more than 4 years he needed to show that there were “very compelling circumstances” over and above it being unduly harsh. The Upper Tribunal  found this test was not met and dismissed his appeal. The Court of Appeal refused permission.

The Court commented that generally, if the domestic courts have properly applied Article 8, they will only substitute their own assessment of the merits where there are strong reasons for doing so (§79). They found that the Upper Tribunal had not conducted a separate balancing exercise as required by Strasbourg case law (§84). They therefore went on to substitute their own view of the merits (§85). They noted that the Court has tended to consider the seriousness of the crime not merely by reference to the length of sentence, but also to the nature and seriousness of the offences. They noted that violence and drug related offences were consistently treated as the most serious end of the spectrum (§87). Ultimately the Court concluded that the seriousness of the offences was “not of a nature or degree capable of outweighing the best interests of the children.” They found this on the basis of the Upper Tribunal’s acceptance of the strength of ties between Mr Unuane and his partner and children, and the acceptance that it was in the best interests of the eldest child to remain in the UK.

Of most interest is the potential impact that this case might have in the way UK courts now approach the questions they have to answer under paragraphs 398-399A of the Immigration Rules and s1117C of the Nationality Immigration and Asylum Act 2002. The Court notably held that the Immigration Rules did not “necessarily preclude” domestic courts from applying the correct approach. But their decision to go on and remake the decision, and remake it against the Secretary of State, is a striking one. Whether there is any form of ‘rebalancing’ of the balancing exercise is something that the courts will no doubt have to weigh up in the future.

David Ball represented the Applicant instructed by Nicola Burgess of the Joint Council for the Welfare of Immigrants (JCWI). 

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