DISSENTING OPINION OF JUDGE TURKOVIĆ

1. To my great regret, I am unable to subscribe to the majority ’ s conclusion that the applicant ’ s deportation would not be in breach of Article 8 of the Convention.

2. The Court recognized in A.A. v. the United Kingdom (no. 8000/08, 20 September 2011) that in cases in which the applicant has not been yet expelled at the time of the Court ’ s decision, the Court itself must assess the compatibility with the Convention of the applicant ’ s actual expulsion with reference to the facts known to the ECHR at the time of the proceedings before it, but post-dating the domestic proceedings. Relying on its well-established case-law, the Court indicated that in cases where deportation is intended to satisfy the aim of preventing disorder or crime, the period of time which has passed since the offence was committed and the applicant ’ s conduct throughout that period are particularly significant. The Court further specified that in cases in which the applicant has not committed further offences, and where he or she made efforts to rehabilitate himself or herself and to reintegrate into society, and where his risk of reoffending was assessed to be low, the Government are required to provide further support for their contention that the applicant can reasonably be expected to cause disorder or to engage in criminal activities such as to render his or her deportation necessary in a democratic society (see A.A. v. the United Kingdom, cited above, §§ 63 and 68).

3. In the present case, the majority took the position that there was “no change in the applicant ’ s circumstances since the date of the last domestic decision which would provide the Court with strong reasons to substitute its own assessment of proportionality for that of the domestic authorities” (see paragraph 81 of the judgment). The majority completely disregarded the fact that a considerable period of time (10 years) has elapsed since the offence was committed, since the applicant was released from the Young Offenders ’ Institution under licence (6 and a half years) and since the licence expired (4 and a half years), and that during that period the applicant has not committed any further offences and has demonstrated serious efforts to rehabilitate himself and to reintegrate into society. His conduct shows genuine dissociation from his crime. All these factors have an important impact on the assessment of the risk which the applicant poses to society. [1] Thus, I cannot agree with the majority that there has been no change in the applicant ’ s circumstances since the date of the last domestic decision which should prompt the Court to substitute its own assessment of proportionality for that of the domestic authorities. This does not mean that the Court would necessarily take a different position from the domestic authorities; in such circumstances, however, as was established in A.A. v. the United Kingdom , the Government should be required to provide further support for their contention that the applicant can reasonably be expected to cause disorder or to engage in criminal activities such as to render his or her deportation necessary in a democratic society. Indeed, any other approach, as was emphasised in the same case (cited above, § 67), “would render the protection of the Convention theoretical and illusory by allowing Contracting States to expel applicants months, even years, after a final order had been made notwithstanding the fact that such expulsion would be disproportionate having regard to subsequent developments” (ibid.).

4. In the present case, the majority has considerably limited the possibility for the Court to take subsequent developments into consideration in cases in which the applicant has not been yet expelled at the time of the decision of the Court. It seems that, as opposed to the criteria laid down in A.A. v. the United Kingdom , the Court is now requiring the applicant to demonstrate that there has been some change in his or her circumstances over and above the fact that he or she did not commit further offences for a significant period of time after being released and assessed as posing a low risk of re-offending. It seems that the applicant is required to demonstrate some “exceptional” change in his or her circumstances post-dating the last decision of the domestic authorities in order for the Court even to engage in the assessment of proportionality. The approach the Court has taken in the present case is especially problematic in cases of expulsion of settled migrants who have lawfully spent all or the major part of their childhood and youth in the host country. This is all the more so where the person concerned is a settled migrant who was a juvenile (minor/young adult) at the time that the underlying offence(s) was committed, as is the case in respect of the applicant in the present case. Very serious reasons are required to justify their expulsion and the burden of proof is on the Government (see Maslov v. Austria [GC], no. 1638/03, § 76, ECHR 2008 ).

5. In view of the above considerations and of the Court ’ s conclusions in A .W. Khan v. the United Kingdom , where “having particular regard to the length of time that the applicant has been in the United Kingdom and his very young age at the time of his entry, the lack of any continuing ties to Pakistan, the strength of his ties with the United Kingdom, and the fact that the applicant has not reoffended following his release from prison in 2006, the Court has found that the applicant ’ s deportation from the United Kingdom would not be proportionate to the legitimate aim pursued and would therefore not be necessary in a democratic society” (see A.W. Khan v. the United Kingdom , no. 47486/06 , § 50, 12 January 2010 ) [2] , I cannot, without further support by the Government for their contention that the applicant can reasonably be expected to cause disorder or to engage in criminal activities at the present time, conclude that the applicant ’ s deportation would be a proportionate measure.

6. I am fully aware that the assessment of proportionality is and always will be fact-sensitive. I could not agree more with Lord Bingham that “there is in general no alternative to making a careful and informed evaluation of the facts of the particular case” and that “[t]he search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which Article 8 requires” (see Lord Bingham in EB (Kosovo) [2008] UKHL 41, [2009] 1 AC 1159 at [12]). However, an overly casuistic approach to the matter fails to achieve consistency in decision making and to bring certainty to the decision-making process, both at the national and European level. The new Immigration Rules were in part intended to bring greater clarity in this respect domestically (see MF (Nigeria) [2013] UKHL 41, [2009] EWCA Civ.1192 at para 34, citing the document produced by Ms Giovanetti QC).

7. The inconsistences in application of the Üner , Maslov and A.A. principles, some of which were identified above by way of example, may warrant their further clarification and/or elaboration. At a time when Europe is coping with the serious problems which partially originate in a poor record in terms of integration efforts, especially with regard to second-generation migrants, it is of utmost importance to balance wisely society ’ s impulse to attach greater weight to the public interest than to private and family life claims under Article 8 of the Convention. After all, it is impossible to make a sharp distinction between the two. It is in the public interest to protect the private- and family-life claims of long-term migrants.

8. In addition and separately from the above arguments, I cannot agree with the majority that in the present case the First-Tier Tribunal properly addressed the best interests of the child. The Tribunal indeed referred to the best interests of the child, but it failed to explain what was considered to be in the child ’ s best interests, what criteria this was based on and how the child ’ s interests were weighed against other considerations. The Tribunal failed to indicate clearly whether primary importance was accorded to the child ’ s interest [3] . Rather, it seems that the best interests of the child were treated merely as one of the considerations that weighs in the balance alongside other competing factors, and not as a factor that must rank higher than any other. All this does not necessarily mean that a proportionality test which included adequate treatment of the child ’ s best interest would ultimately have had a different conclusion from that at which the First-Tier Tribunal arrived. Nonetheless, failure to address the best interests of the child adequately should in itself constitute a procedural violation of Article 8.

[1] The research has shown that for those who do not reoffend within three years of release the likelihood of re - incarceration at a later point is greatly diminished. The risk of reoffending decreases over time. See Langan PA, Levin DJ . Recidivism of prisoners released in 1994 . W ashington, DC: Bureau of Justice Statistics ; 2002 . (Bureau of Justice Statistics Publication No. NCJ 193427).

[2] In both cases the applicants were sentenced for drug - related offences. In the present case, the applicant – who committed an offence when he had just turned 19 – was sentenced to seven years ’ detention in a ‘Young Offenders’ Institution’ and in A.W. Khan the applicant – who was an adult when he committed an offence – was sentenced to seven years ’ imprisonment. Both were released before serving the full t erm. Both applicants came to the UK at a very young age ; in the present case the applicant was almost two and in A.W. Khan the applicant was three years old. Neither applicant reoffended following their release ; in A.W. Khan this amounted to period of around three and a half years , and in the present case to a period of more than six years. Neither have any continuing ties to their native lands. Both fathered a child after committing an offence.

[3] The right of the child to have his or her best interests taken as primary consideration means that the child’s interests may not be considered on the same level as all other considerations; they have higher priority and thus a greater weight must be attached to what serves the child best than to other competing considerations. See General Comment No. 14, adopted by the UN Committee on the Rights of the Children at its 62nd session, 14 January-1 February 2013, p. 10. There are, however, circumstances in which the community or other parties might have superior interests (e.g. religious or economic) so that a child’s interests may not prevail.