In, out, in, out shake it all about: Immigration proportionality analysis
Updated: Aug 14, 2020
By Alex Evans
To me, the main way that society has changed in terms of the past thousand years of human development is transportation. We have gone from living in small communes, unlikely to ever leave, to being able to reach the other side of the world in under 24 hours. People now can choose to live their lives miles away from their place of birth and indeed frequently do. What is the position however if the individual gets into trouble with the ‘host state’ and tries to send them back to the ‘native’ state? The scope of the current article will not be discussing the merits of migration however, nor the merits of such regulation of migration. This discussion will focus on the formulation of ECtHR and domestic courts. It will be submitted that such a formulation is deeply flawed and an alternative will be proposed that should come from Strasbourg.
What does the Current Law Allow for?
The current domestic law regime can be found in the Immigration Rules and secondary legislation endorsed by Parliament, and thus are given a lot of weight by national judges, as evidenced by Ali v Secretary of State for the Home Department. Furthermore, in the same case it was ruled that the wide margin of appreciation afforded to States in such issues does permit that the legislation is not at odds with Convention Rights.
The Immigration Rules set out balancing factors to be given weight in considering whether or not to deport. Without going into full details, the decision of the Secretary of State is very difficult to challenge unless there are exceptional circumstancesparticularly if that individual has committed a criminal offence and been convicted for more than 4 years, withlittle weightbeing given to family life.
Currently, the factors taken into account on a Strasbourg balancing are found mainly in the Boultif v Switzerlandwhich account for:
Seriousness of the Offence
Family situation: Length of marriage and whether it was realand before the offence, children and age of children
How long the claimant resided in the country
Time elapsed since offence and conduct of C during that time
Difficult of spouse and family to visit and live with the claimant if returned to home country
Ability to live legally elsewhere
As well Uner v The Netherlandswhich provides the solidity of social, cultural and family tieswith the host country and with the country of destinationmust be taken into account as well.
What are the issues with the Current Law?
The scope of the current debate will squarely focus criticism on the last point. As Murphyhighlights, the application of the “social, cultural… ties”have been highly controversial. What it essentially has resulted in is national courts applying the integration issue very restrictively given the wide Margin of Appreciation. What it has essentially meant is that immigrants, particularly second-generation, have to as far as possible distance themselves from their national home state to satisfy integration factor under this test. The courts have taken factors such as speaking national language (Uner v The Netherlands) and any kind of education or family in the former state (Baghli v France) and, as Farahathas pointed out, religious aspects as well.
Murphy, sensibly, criticises these aspects; it essentially means that migrants must uproot themselves (Baghli v France) from the society of old and into the new one. This severely suppresses migrant ability to practice their own religion, culture and language due to fears about not being qualified as sufficiently integrated. It is completely plausible that a migrant can still want to practice such old culture and religion, educating their children of it as well, while being a fully integrated member of the host state’s society. Indeed, Article 27 of the International Covenant of Civil and Political Rights provides that
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
When read in conjunction with Article 53 of the ECHR itself, supposedly will not prejudice any other international convention, it can be said the protection being provided by the ECtHR does not do justice to this international Covenant.
What should the position be?
So what should the position be? In light of the scenario we have whereby non-nationals are, in essence, being forced to give up one nationality in pursuit of another. Any little detail seems to count against them when it comes to the incorporation test. I do not doubt propriety of government ambitions when it comes to wanting integration of non-nationals into a ‘British’ way of life, such as it brings harmony into the community and gives individuals greater autonomy, but the application of the test is beyond unreasonable. Non-nationals have a right under International Law to practice their own culture and heritage, his surroundings in the family home and ethnic blood all make up the individual and properly respect personal dignity, they need to be allowed to freely have ties with their native country without risk of deportation because of this. Furthermore, while Article 8 is now used in a wide range of situations due to the living instrument of the ECHR, the original purpose should not be lost: to prevent the state from creating a homogenised nation with singular cultural and ideological factors.
It is submitted that the current balancing act between integration with host state and native state should not be totally abandoned, it does serve a useful purpose, but rather altered. The Court should ask from the current range of factors, guided by the ECHR, as to the persons integration with the host state. Looking at all the circumstances on balance a ‘Threshold of Integration’ should be reached. Such a balance should be set to a high standard, the effect of the declaration being that removal to anyState would constitute an unreasonable interference with the Claimant’s Article 8 Right. If the threshold is not met, a comparatively lower ‘Threshold of Associations’ for the State of proposed refoulement. Such again should be along similar lines as discussed above coming from ECtHR jurisprudence. If this standard is not met, it would constitute an unreasonable interference with the claimants Article 8 right to refoul him to the State proposed. Government has an opportunity to find another State which supposedly the Claimant may have more associations, but this will be unlikely in most cases.
Such an approach has three main advantages over the current system. Primarily, this will be in allowing non-nationals to properly exercise their right to continue their culture, religion and maintain family ties in their native state without fear of arbitrary results from government body. This is particularly important for ‘second generation’ migrants, who have not known anything other than UK with regards to a home environment. Secondly, it is submitted it better appreciates a lay reading of Article 8. If Article 8 can be read to protect one against refoulement, surely it should be able to be interpreted in order to allow the individual to flourish in two cultural backgrounds without risk of prejudice because of the desire, and indeed right, to exercise both. Thirdly, this will help to improve legal certainty. While in any proportionality analysis the distinction will be difficult to draw, a ‘two-stage’ approach will allow individuals and government to be better directed in what the law actually is.
One might question how viable this answer is in the current political climate with rising concerns about Immigration and States wanting greater respect for sovereignty in such areas. Bateshas commented that in since 2010 the Courts have entered an ‘Age of Subsidiarity’ with greater respect being given to those states, and the democratic legislatures, who respect Convention Rights. Indeed he furthers that this is the only sensible direction that Strasbourg can go; it must recognise the limits of the Convention and use political means to force compliance. With respect to Dr Bates’ view, the Court should not, as it were, ‘roll over and accept its fate.’ The purpose of any notion of International Human Rights Law is to protect against the tyranny of the majority.Strasbourg must be more willing to intervene in such blatant violations of minority rights as can be seen systematically occurring across cases Europe. To this view, even if there is tension, it is a position the Courts must adopt in the wider concept of International Human Rights Law.
Irrespective of one’s opinions about immigration, it is easy to see the fundamental flaws in the current system. The State is entitled to ask for integration into the respondent State, but this is not reason to seemingly align total integration into the host state. Such a position, as Thympoints out, is to assimilate the position of a national and a non-national. The only difference being that the non-national will still be at risk of refoulement.
The submitted proposals for reform will be beneficial to increase certainty and allow migrants full integration of their Article 8 and other International Rights. In the current socio-political climate with risk of terror threats and far-right uprisings, it is doubtful that the ECtHR will take a firm position on this, so it is incumbent on the Home Secretary to reform the rules in such a manner in which he can properly persue his aims without unreasonable violations.
App. 54273/00) (2001) 33 EHRR 1179
App. No. 46410/99) (2007) 45 EHRR 14
C. Murphy ‘The Concept of Integration in the Jurisprudence of the European Court of Human Rights’(2010) European Journal of Migration and Law 23-43
A. Farahat ‘The Exclusiveness of Inclusion: on the Boundaries of Human Rights in Protecting Transnational and Second Generation Migrants’(2009) European Journal of Migration and Law253-269
Speaking at a lecture at the Nottingham Human Rights Law Centre Student Conference on the ECHR: 60 Years of Success?
D Thym ‘Residence as De Facto Citizenship? Protection of Long-term Residence under Article 8 ECHR’ in Rubio-Marin (ed.) Human Rights and Immigration (OUP, 2014)