A W Khan v United Kingdom  ECHR 27(12 January 2010)
The European Court of Human Rights has held that the deportation of a convicted heroin trafficker, who had not re-offended since release from prison and had developed strong ties with a country based on long-term residency, family and children, constituted a violation of the applicant’s right to private and family life.
Section 3(5)(a) of the Immigration Act 1971 (UK) allows the deportation of non-British citizens where the Secretary of the Home Department deems this conducive to the public good. UK migration law permits appeal on grounds of incompatibility with the European Convention of Human Rights. Article 8 of the Convention protects the ‘right to respect for private and family life’ from State interference beyond what is ‘necessary in a democratic society… for the prevention of disorder or crime, [or] for the protection of health or morals’.
The applicant was convicted of trafficking 2.5 kilograms of heroin. A month after his early release from a 7-year prison sentence, the British government sought to deport him. The applicant argued the decision was not proportionate, and did not appropriately weigh against his good conduct, closeness of his family ties and length of his residency in the UK.
The Government disagreed. Although accepting that deportation would interfere with the applicant’s private life, the Government asserted that the right to family life was not engaged because the applicant’s siblings were all adult and not dependent. Further, it argued that European Court jurisprudence permitted ‘great firmness’ given the serious nature of drug offences, and submitted the decision to deport was proportionate.
Was there interference with the right to respect for family and private life?
The Court found that ‘private life’ contemplates ‘the totality of social ties between settled migrants… and the community in which they are living’, and engages art 8 independently of ‘family life’. It was clear that expulsion interferes with this right.
Immigration case law establishes that there will be no ‘family life’ between parents and adult offspring without demonstrating dependence. The Court was therefore not satisfied that the applicant’s cohabitation with his mother and brothers was sufficient, nor did their illnesses demonstrate that the applicant was an indispensible carer.
However, the applicant had a long-term relationship with a British citizen, who gave birth during the hearing. The Court recognised that ‘family life’ exists between parent and child, and that children of a cohabitating couple become part of the family upon birth. While the applicant’s bail conditions prevented him from cohabitating, the relationship had continued since August 2005, with near-daily contact, and the applicant was acknowledged as father on the child’s birth certificate. The Court held that this showed ‘sufficient constancy to create de facto family ties’.
Was this interference ‘necessary in a democratic society’?
The Court agreed that the applicant’s conviction and seven-year sentence for importing 2.5 kilograms of heroin was very serious. The Government’s ‘great firmness’ was understandable, ‘given the devastating effects of drugs on people’s lives’. However, also relevant was that the applicant had not previously or subsequently committed serious criminal offences, suggesting that he posed a minimal risk to society.
The Court found the applicant’s private life to be established solely in the United Kingdom. The applicant had emigrated at the age of three, had not since visited his native Pakistan, and had no family or idea of his origins there. Regarding his family life, the Court weighted the ‘stable relationship’ and ‘regular contact’ against the likely 10-year minimum period of deportation. The applicant’s partner was not willing to relocate to Pakistan: she had never lived outside the UK, did not speak Urdu or Punjabi and had no family or friends there. However, the applicant had failed to mention his pregnant girlfriend in fresh representations to the Home Office. The applicant’s partner was also fully aware of his criminal record when beginning the relationship. The Court found that ‘accordingly, no decisive weight can be attached to this family relationship’.
On balance, however, the Court was not satisfied that deportation was proportionate, and therefore found a violation of the applicant’s art 8 rights.
Relevance to the Victorian Charter
While deportation decisions are made pursuant to Commonwealth jurisdiction, this case may assist interpretation of the Victorian Charter. Section 13 enshrines a person’s right not to have their ‘privacy [or] family… unlawfully or arbitrarily interfered with’. This case suggests that ‘family’ should be interpreted expansively. It may include couples in a long-term relationship involving frequent contact, but who are not cohabitating due to imposed circumstances. Also relevant is whether the couple have children. Further, this may include parents and adult siblings where a relationship of dependency exists. It is unclear what standard might be sufficient for dependence, beyond the Court’s references to incapacitating health problems combined with sole carer status.
Similar to Article 8 of the Convention, Victorian Charter rights are subject ‘only to such reasonable limits as can be demonstrably justified in a free and democratic society’ (s 7). As well as clearly enumerating a set of relevant criteria, this case provides guidance as to what factors may combine to render certain State responses to even the most serious criminal offences unreasonable.
This case also highlights that, in Victoria, the interests of the child and not just the applicant may be considered. Section 17 recognises children’s rights to protection of their ‘best interests’. Arguably, removing a child’s father may conflict with these rights, and so weigh against the reasonableness of such a decision.
The decision is available at http://www.bailii.org/eu/cases/ECHR/2010/27.html.
Patrick Clark, Summer Clerk, Mallesons Stephen Jaques Human Rights Law Group