Wednesday, April 11, 2012

ECtHR backs deportation of settled migrant in Balogun v. UK

Yesterday the European Court of Human Rights released a disappointing decision in the case Balogun v. UK. The headline out of the case is that the UK may deport long-term settled migrants for sufficiently serious offenses without violating Article 8. Let's dig a little deeper and see what the implications of this ruling may be.

Facts: The applicant, B, is a Nigerian immigrant who was born in '86 and has been in the UK since the age of 3 (this is debated a bit, but at least since age 5.) He lived with an allegedly abusive Aunt and was granted indefinite leave to remain after being kicked out of her house, and entered the foster care system until age 18 when he began to live by himself. From then on he has a criminal record of several counts of theft and possession of controlled substances (all occurring before he reached the age of 21). After a final count of possession with intent to distribute, he was sentenced to 3 years in prison and put into deportation proceedings. He appealed on human rights ground, and the first instance court found that, since he didn't have a significant private life in the UK, his deportation was proportional to the crime.
 With regard to his private life, while it was accepted that he had been in the country since a young age and had been educated there, as well as gaining some work experience, it was not considered that these ties were sufficiently strong to render his deportation an interference with his private life. It appeared that his mother still lived in Nigeria and, even if contact had been lost, as claimed by the applicant, there was no reason why it could not be re-established. Whilst the applicant would have practical difficulties in relocating to Nigeria, he could re-establish his private life there.
Several appeals and a suicide attempt later, we end up at Strasbourg debating whether this deportation violates article 3 (prohibition against torture) or article 8 (freedom from interference with family life).

Ruling: Article 3 is thrown out for being "manifestly unfounded" and I don't care to debate that since this is not an issue involving refoulement. 

Article 8, on the other hand, is where it gets interesting. Both the applicant and the UK spend their time arguing about the nature of the applicants connections to the UK. B claims that he has a long-term girlfriend, his Aunt is like a mother to him, and he has friends and employment connections that he may utilize now that he out of jail and off of drugs. The UK meanwhile contends that B has no significant friends and family interests, at least nothing serious enough to outweigh the public interest served by deporting a threat to public order.

The Court more or less agrees. Having a girlfriend and a few scattered relatives with whom you are on bad terms does not amount to a family life (um, guys, isn't that what most families look like?) but it does make a private life. And importantly, the Court recognizes that the length of time spent in the UK, and having grown up almost exlusively in the care of UK social services means that he has significant ties to the country and will be strongly effected by deportation. However, his criminal record ultimately outweighs these considerations.
He was left at the age of three with an aunt who, according to the applicant and to social services, ill-treated the applicant. He was thrown out by this aunt at the age of fifteen and was thereafter taken into foster care. He has therefore not only spent by far the greater part of his childhood in the United Kingdom and been entirely educated in that country, but has been partly brought up in the care of the United Kingdom’s social services. These elements of the applicant’s background contribute significantly to the Court’s finding that his ties to the United Kingdom are stronger than those to Nigeria. However, while the Court views with sympathy the circumstances of the applicant’s formative years, the fact remains that he is responsible for his own actions. Particularly in light of the fact that the majority of the applicant’s offences were committed when he was already an adult, the Court finds that the applicant cannot excuse his past criminal conduct by reference to his upbringing.
 Even with the impact on his private life, the UK's deportation of B does not violate article 8.

Response: It is obvious from the slant of this blog that I would disagree with this ruling. Legally, I don't think this is a totally outrageous ruling (reasonable people can always disagree), but the underlying premise is one that I think is extremely damaging and unfair.

Someone that lived in the UK since the age of 3, and was raised more or less by the system, is a product of that country. Deporting them to Nigeria is a non-sequitor and obliterates the chance for such a troubled individual to ever lead a normal life. It punishes him for the actions of his parents or parents in moving illegally to the UK, that he could not help or influence. It punishes Nigeria by sending back a bitter individual with a criminal history that will have a hard time adjusting to a completely foreign life. It violates the individual's right to a private life, and it encourages the UK to dump problematic foreigners back to countries they have hardly any connections with.

Its a bad decision and is not justified by out-dated drug charges for which the individual has already served time. B was not a drug dealer at age 3, but became one after spending his entire childhood in the UK. This is a home-grown problem, and regardless how many criminals the UK deports, they will find new ones that they cannot.

As ever, it is my opinion that deportation is not the only, nor the best solution.

ECtHR: Case of Balogun v. the United Kingdom 

And here's a nice fear-mongering Telegraph article pushing for more deportations.

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