European Court of Human Rights upholds expulsion of “foreign” offender

The punishment endured by a person convicted of a criminal offence may extend well beyond the primary, judicially imposed penalty which will typically be a fine, a term of imprisonment or a community order. Ancillary penalties in the form of disqualification, notification requirements and the like have proliferated during the past few decades. Not all of these are formally recognised as “penalties” (for the purpose of Art. 7 of the ECHR, for example), but they can still have a severe punitive impact. A criminal conviction may have further collateral consequences, whether arising by operation of law (such as long-term disenfranchisement which is still common in parts of the United States) or from executive action. Deportation is one such consequence and, for some offenders, it is the most severe, disruptive and enduring punishment of all.

The severity and potential arbitrariness of deportation or expulsion in response to a criminal conviction is illustrated by Azerkane v The Netherlands, a judgment of the European Court of Human Rights handed down on 2 June 2020. Azerkane (“A”) was a second generation immigrant born in The Netherlands in 1993 to Moroccan parents with whom he lived all his life. His parents and five of his seven siblings have Dutch nationality. However, he remains a Moroccan national who held temporary renewable residence permits in The Netherlands. When one such permit expired on 17 January 2005, it was not renewed until 15 February 2005, and this short gap, which was apparently due to an oversight on the part of A’s father, proved very significant for the purpose of the present case. Between 2006 (when he was still a juvenile) and 2011, he committed several offences, the most serious being armed robbery of which he was convicted in 2012 and for which he was sentenced to three years’ imprisonment. In October 2013, his residence permit was revoked and he was made subject to a 10-year re-entry ban. This decision was made primarily by setting the total of 41 months custody which he had served for his various offences against the uninterrupted period of six to seven years during which he had been lawfully resident in The Netherlands before committing the robbery. (In reality, of course, he had at that point been a resident for 20 years). All his appeals against this decision were dismissed. In January 2016, he lodged an application with the European Court of Human Rights claiming that the revocation of his residence permit and the ten-year re-entry ban amounted to a violation of his rights under Article 8 of the ECHR. This Article guarantees the right to respect for private and family life, though it may be restricted “in accordance with law and [as] is necessary in a democratic society” in the interests of promoting certain social goals including national security, public safety, and the prevention of crime or disorder. The European Court (Fourth Section) accepted that the decision of the Dutch authorities interfered with A’s right to respect for both his family and his private life, but ultimately found no violation of Article 8 because the expulsion “was proportionate to the aims pursued and therefore necessary in a democratic society” ([84]).

This is the latest in a long line of cases in which the Strasbourg court has had to determine if the decision of a State Party to deport or expel a foreign offender is compatible with Article 8. The applicants are generally non-EU nationals who cannot rely on the freedom of movement provisions of the TFEU or on national regulations giving effect to the relevant Directive. (On the application of this aspect of EU law Ireland see, for example, P.R. v Minister for Justice [2015] IEHC 201). The Strasbourg court has developed a set of criteria for evaluating the compatibility of expulsion decisions with Article 8 of the ECHR. These are often known as the Boultif factors, after Boultif v Switzerland (2001) 33 EHRR 50 where they were first articulated though they were later set out in more tabular form in Uner v The Netherlands (2007) 45 EHRR 14 at [54], a judgment of the Grand Chamber. They include the nature and seriousness of the offence, the length of the applicant’s stay in the country, the time that has elapsed since the commission of the offence and the applicant’s conduct during that period, the nationalities of the persons concerned, and the applicant’s family circumstances. In Uner, the Court added two further factors, while accepting that they may already have been implicit, namely, the best interests and well-being of children and “the solidity of social, cultural and family ties with the host country and the country of destination.”

The ECHR does not prohibit the deportation of foreign nationals. In one of its many tropes or set pieces, the Strasbourg court says:

The Court reaffirms at the outset that a state is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there…. The Convention does not guarantee the right of an alien to enter or reside in a particular country and, in pursuance of their task of maintaining public order, contracting states have the power to expel an alien convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under para. 1 of Art. 8, be in accordance with the law and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued….”

(See, for example, Uner at [54]). Expulsion of offenders has occasionally been found to violate Article 8, as in A.A. v United Kingdom (20 September 2011) and Maslov v Austria (23 June 2008). In both cases, the offences were committed while the applicants were minors, although in A.A. the offence consisted of the gang rape of 13-year-old girl when the applicant was about 15 years.

The applicant in Azerkane did, to be sure, have a bad criminal record though much of it consisted of offences committed while he was a juvenile. It was probably no worse than that of many Dutch nationals or, for that matter, nationals of any other member state. He was a Dutch national in everything but name, having been born and lived all his life in The Netherlands. He had very slender ties (though he had some) to Morocco to which he was, in effect, being deported, though it seems that he spoke at least some Berber. The court frankly acknowledged (at [84]) that the expulsion would have a severe impact on the applicant’s family and private life and it acknowledged his limited ties to what it called “his country of origin”. This presumably referred to Morocco although his true country of origin was The Netherlands. There was some evidence that he had a mild mental disability. However, one point that certainly counted against him is that he had continued to reoffend after the exclusion order was made and even after lodging his application with the Strasbourg court. In this respect the case differed from A.A. v United Kingdom (20 September 2011) where the offence was very serious but the applicant’s conduct afterwards had been exemplary.

One problem with cases such as Azerkane is that the Strasbourg court views them solely through the lens of Article 8 of the ECHR, rather than focusing more on the punitive dimension of deportation, or indeed on the consequent discriminatory impact. The happenstance of being an immigrant, even a second-generation immigrant, can greatly increase the overall punishment endured for an offence. Granted, the applications are usually based on Article 8 alone and this is presumably because the Court lacks a well developed proportionality jurisprudence, at least in relation to sentencing. (It has an extensive jurisprudence on what we would call Heaney proportionality for the purpose of assessing the permissibility of State-imposed limitations on the rights guaranteed by Articles 8 to 11). The more fundamental problem is that the European Convention itself has no express requirement that punishment be proportionate to the crime. It is to be contrasted in this respect with the EU Charter of Fundamental Rights (Art. 49(3)). However, there are indications from cases such as Weeks v United Kingdom (1988) 10 EHRR 293 that a grossly disproportionate penalty may fall foul of Article 3 of the ECHR which outlaws torture and inhuman or degrading treatment or punishment. If the ECHR were more dynamically interpreted by the Strasbourg court to require proportionality of punishment, the court might be more inclined to consider the cumulative impact of all the consequences, direct and collateral, of a criminal conviction. There is, of course, a general reluctance to read into treaties such as the ECHR additional provisions, unless they can readily be inferred from the express terms of the text. Yet, the Court had no difficulty in doing just that in Scoppola v Italy (No.2) (2010) 51 EHRR 12 where it interpreted Article 7(1) as providing for lex mitior, even though the text clearly did not, and may not have been intended to.

The Court cannot be unaware of punitive impact of deportation following conviction. After all, it has been pointedly reminded of it in certain dissenting opinions, notably that of Judges Costa, Zupancic and Turmen in Uner v The Netherlands (2007) 45 EHRR 14. In that case, a 14-member majority of the Grand Chamber found no violation of Article 8 in circumstances where the applicant’s residence permit was withdrawn following his conviction for manslaughter. He was a Turkish national who had lived in the Netherlands since he was 12 years of age. By the time the permit was withdrawn he was in his late twenties and the father of two children born and living in The Netherlands. The joint dissenting opinion stated in part (at O-II17):

“The principle is that of “double punishment”, or rather the discriminatory punishment imposed on a foreign national in addition to what would have been imposed on a national for the same offence. We do not agree with the assertion in [56] that the applicant’s exclusion was to be seen as preventive rather than punitive in nature. Whether the decision is taken by means of an administrative measure, as in this case, or by a criminal court, it is our view that a measure of this kind, which can shatter a life or lives – even where, as in this case, it is valid, at least in theory, for only ten years (quite a long time, incidentally) – constitutes as severe a penalty as a term of imprisonment, if not more severe. This is true even where the prison sentence is longer but is not accompanied by an exclusion order or expulsion. That is why some states do not have penalties of this kind specific to foreign nationals, while others have formally abolished them in recent times….”

A similar point was made by Judge Morenilla in his dissenting opinion in Boujlifa v France (21 October 1997) where he described the deportation as “an aggravation of the criminal penalty imposed on Mr Boujlifa in relation to those imposed on French nationals, so that it is discriminatory.” A joint dissenting opinion by Judges Baka and Van Dijk in Boujlifa stressed that the applicant had already served the term of imprisonment imposed upon him and that the sentence in question may be assumed to have been proportionate to the offence committed. Why, then, they asked should the applicant be treated differently from a French national, especially when there was no serious reason to believe that he would commit further offences.

In this respect, it is interesting to compare Azerkane and similar Strasbourg decisions with the United States Supreme Court judgment in Padilla v Kentucky 559 U.S. 356 (2010). Padilla, a native of Honduras, had been lawfully resident in the United States for 40 years during which time he served in Vietnam, when he pleaded guilty to a serious drugs distribution charge. As a result of this he was made subject to deportation proceedings. His lawyers had failed to advise him of this likely consequence before he decided on a plea, and his argument to the Supreme Court was that, as a result of this failure, he was denied effective assistance of counsel under the Sixth Amendment, a right recognised by the Court in Strickland v Washington 466 U.S. 668 (1984). A majority of the Supreme Court decided the case in his favour. The Supreme Court of Kentucky had held that the collateral consequences of a conviction were “outside the scope of representation required by the Sixth Amendment.” Stevens J., delivering the opinion of the U.S. Supreme Court, disagreed:

“Although removal proceedings are civil in nature,… deportation is nevertheless intimately related to the criminal process. Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim…”

Padilla was not concerned with the constitutionality of the deportation provisions themselves, but solely with the obligation of defence counsel to advise their clients properly as to the entire consequences (collateral and otherwise) of a conviction. Nonetheless, the Court majority was clearly sensitive to the punitive impact of deportation and its close relationship with any other penalty imposed. To be fair, the Strasbourg Court in Azderkane did accept that the applicant would suffer as a result of deportation, but it was still prepared to uphold the deportation decision.

Another disappointing aspect of Azerkane is that the Court did not seem particularly troubled that the applicant was a second-generation immigrant who was born and had lived all his life in the country from which he was being expelled. Dutch citizenship law is based on the concept of ius sanguinis which means that citizenship is not automatically acquired by being born in the country. The same holds true of other European countries, including nowadays Ireland. However, in the case of a person such as A who is a citizen in everything but name, who could probably have become naturalised without too much difficulty and who is being sent to a country with which he or she has little or no familiarity and few connections, expulsion should scarcely be countenanced. It is obviously different where the offender was born and raised elsewhere and had spent only a limited period of time in the country where the offences were committed. In Uner (above), decided in 2006, the Court noted that a majority of member states of the Council of Europe permitted the deportation of second-generation immigrants, whereas eight member states did not. The court in Azerkane acknowledged in passing (at [71]) that “very serious reasons” were required to justify the expulsion a settled migrant. However, it seems from the joint dissenting opinion of Judges Baka and Van Dijk in Boujlifa v France (21 October 1997) that the court has not always been united on the deportation of second generation immigrants. Those dissenting judges urged the court to “abandon its casuistic approach to the matter and take a clear position on the question of whether and to what extent so-called “second generation” immigrants constitute a special category for whose deportation very serious reasons have to be advanced to make it justifiable under the second paragraph of Article 8.”

It is time for the Grand Chamber of the Court to undertake a radical reassessment of the compatibility of this practice with the Convention.

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