Blogging from Prague #4

Reading non-United States court decisions for a comparative immigration law course certainly unearths interesting approaches to issues that contrast sharply with U.S. bodies. Consider Nasri v. France (July 13, 1995) before the European Court of Human Rights. The case involved France’s attempt to deport an Algerian national who had lived most of life in France with his parents and siblings. He was “deaf and dumb” from birth, and had been convicted of more than ten petty offenses (robberies, burglaries) as well as participation in a gang rape. Interestingly, one early disposition of the case was a French “compulsory residence order” requiring him to live with his parents. But after further offenses, the French government moved to deport. However, on his appeal to the independent European Court of Human rights, the deportation was halted. The court felt that because of the special circumstances (his disability), capable of achieving a minimum psychological and social equilibrium only within his family, deportation would not be proportionate to the legitimate aim pursued. It would infringe the right to respect for family life and therefore a breach of Article 8 of the human rights conviction (everyone has the right to respect for his private and family life).

In AR (Pakistan) v. Secretary of State for the Home Department, a deportation order was upheld, by the UK court of appeal July 10, 2010 (2010 WL 2754134).  The process was interesting, however. Appellant was a native of Pakistan, who entered Britain as the spouse of a person who had settled in the UK. He was a 38-year-old divorced father of three at the time of his appeal. Appellant had been convicted of ten crimes, including different counts of shoplifting, petty theft and possession of drugs. Significantly, in the middle of these different convictions, he was warned that because of his immigrant status if he was convicted further he would be subject to deportation. He was subsequently convicted of more crimes and the Secretary issued an order of deportation.

The British court in deportation cases considers the harm to the appellant as well as the state’s interest in deporting the individual. In this case, the appellant argued that his deportation would sever the relationship he had with his children and that his deportation would be disproportionate. The court noted that the severing of the parent child relationship is to be taken into account, but clarify that the test for whether removal or deportation is appropriate is whether it would be disproportionate in all the circumstances. They noted that in cases where the offense is particularly offending, no countervailing considerations may be sufficient to outweigh the public interest in deporting. While that was not the case in this instance, the court upheld the deportation order, finding that the number of offenses and failure of appellant to show that he had changed his ways was proportionate his punishment.

The deportation case of Omar Othman, aka, Abu Qatada, before the Royal Courts of Justice in the UK, decided this past March 27, 2013, the case involved the purported European right hand man of Osama Bin Laden. The court upheld the judgment of the Special Immigration Appeals Commission in the UK blocking the deportation to Jordan. The court agreed that there was a real risk that evidence obtained by torture would be admitted at a trial of Othman in Jordan and that, as a consequence, there was a real risk that he would be subject to a flagrant denial of justice. The fact that Othman was considered to be a dangerous terrorist was not relevant to the issues raised on appeal.

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