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.

Non-Citizen News Round-Up

Refugee Camp in Boynuyogan, Turkey in June (via MSNBC) 

Italy: The European Court of Human Rights issues a major smackdown to Italy this week, ruling in Hirsi Jamaa and Others v. Italy that the policy of intercepting migrant boats at sea and returning them (most often to Libya) breached their various obligations of non-refoulement. (Not exactly tough to see why.) This case is HUGE because its one of the rare instances the Court has ruled on the prohibition against mass-expulsion, as well as adding to already strong migrants and refugee rights jurisprudence at the court. Check it out!

Case of Hirsi Jamaa and Others v. Italy (ECtHR) 
Yet Another Mala Figura: Italy Breached Non-Refoulement Obligations (EJIL Blog)

USA: In news welcomed by LGBQT Refugee advocates, the Obama administration has published clarified rules for courts and asylum officers on adjudicating asylum claims based on membership in one of these persecuted social group. I will probably do a full post on this later but for now there is every reason to be pleased at this news, particularly since the glance I've taken shows the gov moving away from the "married/pregnant/ straight-looking people can't be persecuted as gay" techniques that characterized past cases in the US.
Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender and Intersex Refugee and Asylum Claims (USCIS) (pdf)
LBQT Asylum in US Made a Little Easier (Care 2)


Turkey: Of course, more than any other story this week, focus should be on the Syrians streaming into Turkey fleeing increasing violence. There are now reports that landmines have been laid across escape routes to prevent would-be refugees from escaping. Meanwhile, in response to the emergency UNHCR has appointed a special coordinator for the region's refugees and internally displaced.
On the Turkish Border, a Stream of Fleeing Syrians (Reuters)
Syria: Army Planting Banned Landmines (Human Rights Watch)
UNHCR appioints regional refugee coordinator for Syrian Refugees (UNHCR)

COE Commish on Statelessness

Thomas Hammarberg, the Council of Europe's Commissioner for Human Rights, has an excellent record so far of bringing attention to Europe's bete noir's: the war on terror, Roma, migrants, and now, the problem of statelessness.

In a speech to the CoE during a conference on nationality, Hammarberg highlighted the problem of statelessness throughout Europe, but especially among the Roma.

A great number of stateless persons are Roma. The problem exists in many countries, but it is particularly acute in the Western Balkans, notably in the countries of ex-Yugoslavia. Several thousand persons, among them many Roma, became victims of the decision in Slovenia in 1992 to erase non-Slovene residents from the Register of Permanent Residents. Many had moved to Slovenia from other parts of Yugoslavia before the dissolution of the federation. It was only in 2010 that this unjust regulation was changed through amendments to the law.

In other states in the Balkans, there are Roma who are without citizenship or even basic identity papers. Those who have moved from the former Yugoslav Federation to other parts of Europe often lack personal documents and live in legal uncertainty. They are de facto stateless. Their newborn children are frequently not registered and risk losing their right to apply one day for citizenship as they cannot prove legal residence in the country

Two important things to note about this speech:
1) He mentions the Slovenian "erasure" problem, the subject of the Kuric case currently referred to the Grand Chamber. ( Kuric and others v. Slovenia App. no. 26828/06). Sounds like he endorses the ECtHR's finding of wrong-doing on the part of Slovenia. (Article 8. if you'll recall.)
2.) He brings up the problem of unregistered (or, "legally invisible") people, and their children who do not receive birth registration, and implicitly endorses them as de facto stateless. Interesting stance.

We'll definitely want to keep an eye on Hammarberg, and the CoE to see what steps they take, if any, to back up their stance on statelessness in Europe.

Iovane on the Universality vs. Relativism of Human Rights

*I will be presenting occasional notes/ reviews of important old and new scholarly articles in migration studies/ law/ political science. When possible I will link to the article*

Article: Massimo Iovane; "The Universality of Human Rights and the International Protection of Cultural Diversity: Some Theoretical and Practical Considerations" (2007)
International Journal on Minority and Group Rights 14.

In this article Iovane explores an apparently unresolvable conflict between two conceptions about morality as it relates to international law.

On the one hand, in order for human rights law to be binding on all sovereign states, it must express to some degree universal conceptions of morality. For example, a prohibition against genocide is considered universally binding because it is agreed upon apart from political or cultural considerations. However, much of human rights law relates to less overarching norms. In fact, they often come from a individualist, western perspective that is hardly uncontroversial. As Iovane states, this conception starts from the position that human dignity is paramount, and moves from there to the belief that individual freedom is the most crucial way to protect human dignity. "Human dignity is thus equated with individual autonomy, and the capacity of independent action is accordingly the only hub and ultimate achievement of human rights."(@232) And this vision is chiefly achieved by states refraining from action that tends to limit individual autonomy. (E.g., not censoring politically sensitive newspapers, not preventing groups from protesting against government policies.)

On the other hand, this vision is not shared by all states. The rise of cultural relativism theory in the 1960's led to the recognition of alternative visions of human rights based on, eg; preservation of tradition, protection of the community interests above those of the individual, and cultural autonomy. This conception may also require a policy of non-intervention: "towards persons with whom we morally disagree, relativist conceptions usually predicate a position of tolerance and non-interference." (@237) But it may also require positive action on behalf of the state such as intervening to protect groups at risk of assimilation.

The problem then arises at how to conciliate these two values. How, for example, do we explain why Female Genital Mutilation (FGM) is a violation of human rights, when it is also a cultural tradition? Further, how do we reconcile a condemnation of a non-western tradition such as FGM but still for allow for widely practiced circumcision of males in the western world? Doesn't this reveal a heavy bias towards western/liberal/ capitalist models?

And continuing with the argument, doesn't the allowance of local, traditional forms of justice and human rights also negate universality? The obvious 'slippery slope' of cultural relativism is a denial of any forms of universal ethical norms, and for individual states and cultures to be able to rationalize any form of abhorrent behavior in the name of cultural relativism. Eek! (Let us, however, also recall here that Western states tend to make exceptions to their support of individual rights when it comes to the overall security of the group, see, for example, the Patriot Act.)

In sum, there are good and bad arguments for both positions, but overall it seems necessary to some degree to find a balance between equality of treatment of individuals and the occasional interference or even discrimination between people to protect minority and group rights.

So, having set up this straw man dichotomy, Iovane strikes it down during the later sections of his article by suggesting that judicial actors, such as the European Court of Human Rights, are best situated to negotiate between these two competing and even mutually exclusive values. As he sees it, several cases addressing linguistic, religious and cultural rights "illustrate the difference between protecting a human right seen from the individual point of view and safeguarding the same right seen as a binding element with a given community"(@256). By being able to make case-by-case decisions, weighing all relevant facts and detaching as much as possible from political considerations, Courts are in a unique position to protect both values while not making overly broad rules that hurt both interests.

I tend to agree with Iovane that Courts are in a better position to make these tough decisions than governments or conventions. However, Courts are also inherently political mechanisms that push the values of the societies they represent, values which may support or crush cultural and political difference. Ultimately, I don't think the very difficult question of how to weigh the rights of the individual with the rights of community is adequately resolved by any Court, but then, what is the alternative institution?

At any rate, this article excellently sums up an interesting dillemma and also has a super bibliography. Can't find a free copy right now, but will post it if I can find one!