Deportation and the Right to Private and Family Life

Maslov v Austria [2008] ECHR 1638/03 (23 June 2008) The Grand Chamber of the European Court of Human Rights has held that the deportation of a youth who had spent the majority of his childhood in Austria constituted a violation of his right to respect for his family and private life.

Facts

The applicant was a Bulgarian national.  In November 1990, at the age of six, the applicant moved with his family to Austria, where he was legally resident until 2003.  During his time in Austria, the applicant was convicted of aggravated burglary on two separate occasions; in September 1999 and in May 2000.

In January 2001, the Vienna Federal Police Authority (‘VFPA’) imposed a ten-year exclusion order on the applicant, pursuant to the Aliens Act 1997.  The VFPA found that it would be contrary to the public interest to allow the applicant to stay in Austria, given the applicant’s relapse into crime after his first conviction.  The applicant unsuccessfully appealed to a number of Austrian authorities and, in December 2003, was deported to Bulgaria.

In March 2007, a Chamber of the European Court found that the applicant’s exclusion order and deportation constituted a violation of art 8 of the European Convention on Human Rights.  The Austrian government appealed to the Grand Chamber of the Court.

Decision

Article 8 of the European Convention protects the right to respect for private and family life.  The article also prohibits interference with this right by a public authority, subject to specific exceptions that are ‘in accordance with the law and necessary in a democratic society’.  The relevant exception in this case was ‘the prevention of disorder or crime’.

The Grand Chamber found that there had clearly been an interference with the applicant’s rights under art 8.  The main issue for consideration was therefore whether that interference was ‘necessary in a democratic society’.  The Grand Chamber held that the following criteria were relevant for determining this question, in relation to young adults who have previously been convicted of an offence and who have not yet founded a family of their own:

  • the nature and seriousness of the offence committed by the applicant;
  • the length of the applicant’s stay in the host country;
  • the time elapsed since the offence was committed and the applicant’s conduct during that period; and
  • the solidity of social, cultural and family ties with the host country and with the country of destination.

The Grand Chamber emphasised that very serious reasons would be required to justify the expulsion of a settled migrant who has lawfully spent all or the majority of their childhood in the host country.  This is particularly so where the offences relevant to the expulsion order were committed while the migrant was still a juvenile.

The Grand Chamber upheld the decision at first instance, finding that the applicant’s expulsion constituted a violation of art 8.  The Grand Chamber considered that the relevant offences were generally of a non-violent nature and were committed whilst the applicant was still a minor, requiring the court to take into account the applicant’s best interests as a child.  Other factors held to be relevant by the Grand Chamber included:

  • the applicant had lived in Austria since the age of six, and thus had spent the formative years of his childhood in Austria;
  • the applicant’s principal social, cultural, linguistic and family ties were in Austria.  In contrast, the applicant did not speak Bulgarian at the time of his expulsion and had no other close ties with Bulgaria; and
  • the applicant committed no further offences between January 2000 and his deportation in December 2003.

For these reasons, the Grand Chamber held that the exclusion order was disproportionate to the legitimate aim of preventing disorder or crime and was therefore not ‘necessary in a democratic society’, in violation of the applicant’s art 8 rights.

 

Relevance to the Victorian Charter

Under section 13(a) of the Victorian Charter, every person has the right ‘not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’.  This right may only be subject to ‘such reasonable limits as can be demonstrably justified in a free and democratic society’ (s 7).

Maslov v Austria provides useful criteria for assessing whether a person’s (in particular, a minor’s) rights under s 13(a) have been violated and, if so, whether the relevant action can nonetheless be justified under s 7.

The case may also provide guidance in the case of Mr Stefan Nystrom, a Swedish citizen who was deported from Australiain December 2007 and who is being assisted jointly by the HRLRC and Mallesons.  One matter currently being considered by the UN Human Rights Committee in relation to Mr Nystrom’s situation is whether his deportation constituted a violation of art 17 of the ICCPR, which is similar to s 13(a) of the Victorian Charter and art 8 of the European Convention.  The reasoning in Maslov v Austria suggests that Mr Nystrom’s deportation may constitute an unjustifiable interference with his privacy, family and home, given that Mr Nystrom had lived permanently inAustralia from 27 days old and had no relevant ties toSweden.

Edwina Chin, Human Rights Law Group, Mallesons Stephen Jaques

MichelleBennettHuman Rights Law & Institutions, Child Rights