DISSENTING OPINION OF JUDGE GUERRA MARTINS JOINED BY JUDGE MOTOC

With all due respect to my colleagues, I am unable to subscribe to their view that the deportation of the applicant would not violate Article 8 of the Convention.

1. As the judgment points out, the main legal issue to be assessed in this case is whether the expulsion of the applicant would interfere disproportionately with his right to respect for his private and family life as provided for by Article 8 of the Convention and thus amount to a breach of that Article.

2. As is noted in the judgment, the Court has well-established case-law in this context (which I will abstain from mentioning here as it is quoted and referred to in the judgment). According to this case-law, although Article 8 of the Convention does not contain an absolute right for any category of alien not to be expelled, there are circumstances where the expulsion of an alien will give rise to a violation of Article 8 of the Convention.

3. The Court has already clarified the relevant criteria for assessing whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued (see paragraph 36 of the judgment).

4. Furthermore, as the judgment underlines, the Court has also accepted that the Contracting States enjoy a certain margin of appreciation when the case concerns an expulsion matter, and at the same time the Court has highlighted that it is competent to give the final ruling on whether or not the State has acted within its margin of appreciation (see paragraph 39 of the judgment).

5. In the present case, whereas the First-tier Tribunal (Immigration and Asylum Chamber) considered that the applicant’s deportation would be unduly harsh and that there existed very compelling circumstances which would override the necessity of removing him, the Upper Tribunal set aside that decision and dismissed the applicant’s appeal.

6. In my view, in spite of the fact that the Upper Tribunal sought to base its reasoning on some of the criteria developed in the Court’s case-law in this context (even without referring to it), it failed to strike a fair balance between the relevant interests and there are strong reasons for the Court to substitute its own assessment for that of the domestic court.

7. Contrary to the majority, I consider that the Upper Tribunal failed to strike an appropriate balance between the public and private interests by underestimating, without sufficient justification, one of the most relevant criteria established by the Court, namely the best interests and well-being of the children. In fact, when it assessed the nature of the relationship between the father and the children, although it accepted that there was contact between them, it clearly overestimated the fact that the children had not visited the father during his incarceration. This fact should not have been decisive because there are many reasons that could have justified it, including the protection of the children’s well-being.

8. To sum up, in spite of the seriousness of the offence committed by the applicant, I consider that his deportation would violate Article 8 of the Convention.