Thursday 6 December 2012

Deportation of Children Judgment

It is my pleasure to have a guest blog today by dr Maarten den Heijer, former colleague and a specialist in European migration law. He has been so kind to comment on the judgment of Butt v Norway, delivered by the Court earlier this week:

Court prohibits deportation of Pakistani siblings from Norway

Coincidentally or not, a series of complaints in recent years against Norway has allowed the European Court of Human Rights to flesh out the principles that apply to the expulsion of families that have acted fraudulently in obtaining a residence status. One key issue in this type of cases is the question whether fraudulent conduct of the parents (but also the simple refusal to leave the country despite an order to do so) should also be attributed to the children, who in the meantime may have developed strong ties with the host country. In the Court’s latest judgment on the issue in Butt v Norway, the Court clarifies that it is generally allowed to equate the residence status of a child with that of the parent, but it also stresses that the independent interests of children warrant serious examination and that the moment at which a child learns that his status is precarious, is relevant in taking a decision on expulsion.

The applicants were brother and sister Johangir Abbas and Fozia Butt, Pakistani nationals who were born in 1985 and 1986 respectively and live in Oslo. They arrived in Norway in 1989 with their mother and were granted a residence permit on humanitarian grounds. In 1999 their permits were withdrawn however because their mother had failed to disclose to the immigration authorities that the family had left Norway and returned to Pakistan from 1992 to 1996. Their mother went into hiding in 2000-2001, was expelled from Norway in 2005 and died in Pakistan in 2007. The siblings were living with their aunt and uncle who were legally resident in Norway.

In comparable cases, the Court normally stresses that not much weight can be accorded to ties with the host country that have developed whilst it was known that the prospects of future residence are precarious (e.g. Omoregie v Norway; Antwi v Norway). In Nunez v Norway however, the Court added that children should not always suffer the negative consequences of fraudulent conduct of a mother and that the authorities should always examine the effects an expulsion has on the possibilities of children to enjoy private and/or family life as protected by Article 8 ECHR. The Court considered that ‘exceptional circumstances’ may make it necessary to accord primacy to the interests of the children – even if that would imply that a parent must be allowed residence as well.

The Court further develops this reasoning in Butt. In determining whether ‘exceptional circumstances’ are present, the Court makes several interesting points. The first is that it agrees with the approach of the Norwegian court that a general migration policy approach is allowed “of identifying children with the conduct of the parents”, i.e. of imputing fraudulent conduct of the parents also to the children. The Norwegian court had stressed the importance of this approach, for otherwise there would be a great risk that parents would exploit the situation of the children to secure a residence permit. But the Court adds that in this case there was no such risk of exploitation, since the mother had already died and could therefore not benefit from any decision taken in respect of the children. Consequently, less weight is to be accorded to general interests of immigration policy.

A novel and particularly significant consideration of the Court is its finding that the strong ties of the Butt siblings with Norway had already been formed before they became aware of their mother’s fraudulent conduct. They cannot therefore, in the opinion of the Court, until that moment be reproached for having stayed in Norway knowing that their stay was legally precarious. This implies that more weight is to be accorded to protecting the ties the siblings have established with Norway. Further, as in Nunez, the Court notes the delays on the part of Norway to decide upon deportation of the siblings, which puts into question the pressing character of immigration considerations as to their removal. Balancing all relevant interests at issue (the Court notes furthermore the relatively minor offences committed by the brother that had also been advanced by Norway as justification for expulsion), the Court concludes that Norway would overstep its margin of appreciation if it would deport the siblings.

The Court’s focus on the moment at which children become aware of their irregular residence status may have considerable ramifications, as one may expect especially younger children to often be ignorant about their status or possible abuse or fraud of their parents. It will be very interesting to see whether the Court will in future cases indeed accord full weight to ties built up with the host State before the precarious status became known to the child. If such ties are to be taken more seriously than previously thought, immigration authorities may well be forced to widen up substantially the ‘exceptional circumstances’-formula that the Court first laid down in Nunez.

Maarten den Heijer, assistant professor of international law, University of Amsterdam