Resisting deportation on the basis of ‘integration’? Assessing the impact of Article 8 ECHR

ECHR at 60Given the recent focus on the 60th anniversary of the coming into effect of the European Convention on Human Rights, and following on from Fiona de Londras’ and Liam Thornton’s posts, it seems timely to include a post based on the paper which I presented at the UCD Human Rights Network Conference in June (The ECHR and Ireland: 60 Years and Beyond). My paper looked at the influence of Article 8 ECHR on Irish immigration law, concentrating on the impact of the Strasbourg jurisprudence on the potential disruption of the private life of migrants caused by removal or deportation.

State discretion in the sphere of immigration law is limited by the ECHR, including through the jurisprudence of the Strasbourg Court interpreting Article 8’s protection of family and private life. The Court has been steadily building a complex body of jurisprudence in both expulsion and family reunification cases, but the aspect of the Court’s work which has received most attention is its body of jurisprudence on the impact of the deportation of an individual in terms of their right to family and private life. A deportation will infringe Article 8 if it is a disproportionate disruption of the private and family life of the individual, and/or of family members who may be lawfully resident in the State. A balancing exercise between the various individual rights and State interests at stake must be carried out in order for such a removal to be compliant with the requirements of Article 8.

My paper examined an aspect of the ECHR case law which has been under-explored to date in the Irish context: the impact of Article 8 on the expulsion of so-called ‘settled migrants’, who have developed extensive ‘social ties’ comprising a private life in the country of residence. The Strasbourg Court has placed a strong emphasis on integration, in particular the social aspects of integration, in deciding whether the expulsion fails to respect the individual’s private and family life. In Uner v The Netherlands (2007) 45 EHRR 14, consideration of the “solidity of social, cultural and family ties with the host country and the country of destination” was recognised as an important part of the balancing exercise where ‘settled migrants’ are involved.

In common with most European states, successive Irish governments have emphasised that the successful integration of migrants is a key policy objective and is desirable for social cohesion as well as to allow migrants to realise full equality with existing members of society. This rhetoric has not, however, been accompanied, in recent times, by a funded integration strategy or a comprehensive anti-racism plan. In addition, from a legal doctrinal perspective, to date, integration has had little impact on legal security of residence in Ireland.

A review of the Irish case law shows that the impact of ‘private life’, or integration, considerations, in the Irish context has, to date, been weak. Social and cultural ties are taken into account in the course of the ministerial decision-making process under section 3(6) of the Immigration Act 1999. In addition, the courts have adopted the approach of the Strasbourg court in terms of taking into account factors such as the ages and adaptability of children, extent of integration, length of time in contracting state and connections to country of deportation in the overall balancing exercise required (most notably, in the seminal Supreme Court decision in Oguweke v Minister for Justice, Equality and Law Reform [2008] IESC 25).

However, the overall impact of private life considerations in the Irish courts’ analysis of constitutional and convention rights and on the actual outcomes of these cases has been weak to date. Factors such as integration into the community and/or the education system are often considered by the Irish courts but almost never considered to be determinative. Such factors have been easily outweighed by the State interest in migration control.

The Irish courts have thus, as yet, failed to take on board the full implications of the jurisprudence of the ECtHR on ‘social and cultural ties’ and integration. This is due mainly to the limitations of the Strasbourg and Irish courts’ approach in interpreting the concepts of ‘private life’ and “settled migrants’, as well as the deference shown to the decisions of government in the sphere of immigration law (see, for eg, the decisions in Alli v MJELR [2009] IEHC 595; Igiba v JELR [2009] IEHC 59). Challenges to deportations of the ground of interference with Article 8 rights are almost always primarily based on alleged interference with ‘family life’ rather than ‘private life’.

However, more recent cases seem to reveal an emerging shift in attitude, towards a greater recognition of private life considerations in the balancing exercise being assessed by the courts and an increasing tendency to accept that migrants are ‘settled migrants’, in certain circumstances. S v MJELR [2011] IEHC 417 and EA v MJELR [2012] IEHC 371 (which involved an application for an interlocutory injunction restraining deportation), for example, show that the families and individuals involved in recent deportation judicial review cases have increasingly been here for a significant period of time, citizen children are deeply embedded in the Irish educational system, and parents of Irish-born citizen children are themselves being naturalised. In consequence, a greater proportion of migrants are starting to become recognised as “settled migrants”, with a corresponding impact on the weight of their connection to the State in the balancing exercise carried out by the Minister and reviewed by the Courts.

As Ireland’s migration story continues to evolve, we will also continue to see more cases closely resembling those at the heart of the Strasbourg court’s jurisprudence on deportation and private life, including where it is sought to deport longer-term ‘legal’ migrants because they have committed serious offences.

Overall, the coming years should see a greater impact of the Strasbourg court’s approach in cases such as Boultif v Switzerland (2001) 33 EHRR 50 and Uner v the Netherlands and a more detailed and systematic consideration of issues relating to the network of social, cultural, educational ties to Ireland in deportation cases. The Irish courts will be compelled to take on board the systematic way in which the Strasbourg court considers the integration of the individual as part of its analysis under Article 8, but only if these arguments are presented in submissions.

While the Irish experience of challenging deportation in the courts reveals the limitations of court-centred activism when it comes to claiming and realising migrant rights, it is suggested that migrants, migrant rights’ advocates and legal representatives could fruitfully make more ‘use’ of the ties which migrants have formed to the State to challenge deportation and better realise their rights under Article 8. Greater attention certainly needs to be given to the ECHR jurisprudence on private life.

Resisting deportation on the basis of ‘integration’? Assessing the impact of Article 8 ECHR

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