Deporting Children: Quo vadis, ECtHR?

[Ralph Janik teaches international law in Vienna and Budapest.]

Twitter: @RalphJanik
Image © Harald A. Jahn

International migration and refugee law are loaded with heartbreaking stories. Austria recently contributed yet another one to this long list: In the early hours of January 29^th, a Georgian woman and her two daughters were deported to their country of origin after having lived in Austria for more than six years. The older of them was born and educated in Austria, thus sparking a long-overdue debate on deportations of children. At the same time, a close look at the jurisprudence of the European Court of Human Rights reveals that states enjoy a wide level of discretion when it comes to rejected asylum seekers – too wide?

Case Summary

From a legal perspective, the case of Tina (her name was revealed early on and she also gave an interview in the public broadcaster’s foremost TV news) is clearer than one would expect – at least at first sight. For this reason alone, it sheds light on how law and policy (!) approach asylum and migration decisions involving children.

But let us start with the known facts first. Tina’s and her mother’s initial asylum claims from February 2009 were rejected a year later, they stayed in the country – ignoring an obligation to leave –, claimed asylum again and left Austria a few weeks after a second rejection from March 2012.

The story could have ended here. But it didn’t. Actually, it just got started. Some two years later, they re-entered Austria illegally (with a Dutch tourist visa), stayed without informing the authorities and finally claimed asylum again at the end of February 2015. Tina’s sister was born around that time.

The Austrian ministry of interior, the federal administrative court (Bundesverwaltungsgericht) and the Supreme Administrative Court (Verwaltungsgerichtshof) rejected these applications as well. This time, however, the family remained in Austria and lodged two additional asylum claims which were, needless to say, not successful. Furthermore, neither the ministry of interior nor the court(s) found additional grounds, first and foremost the right to family life, to grant a residence permit.

During all of these years, i.e. ever since August 2014, Tina went to school, formed social ties with her peers and learned the language just like any other Austrian teenager (as was visible during her TV appearance).

During the ensuing debate we heard two arguments everyone involved in asylum and migration-matters is all too familiar with. On the one side stood those who said that her mother should be blamed for “abusing” the right to seek asylum and that the state had to preserve the sovereign right to decide who may enter or stay on its territory. On the other side were those who emphasized that Tina (and her family) should have been granted a permission to stay due to her long residence and integration in Austrian society.

Deportations involving Teenagers and Children

The latter argument leads us to the jurisprudence of the European Court of Human Rights (ECtHR). There are countless cases on deportations, mostly due to criminal behaviour, involving the right to private and family life in accordance with Article 8 European Convention on Human Rights (ECHR).

Austria itself was found to have violated article 8 ECHR in one of the landmark cases on this question after it deported a 19-year old Bulgarian, who had lived in Austria ever since the age of six, due to numerous convictions for criminal behaviour (Maslov v Austria). The court found a violation since he had

“spent the formative years of his childhood and youth in Austria” spoke German, “received his entire schooling in Austria where all his close family members live” and “therefore has his principal social, cultural and family ties in Austria.”

At the same time, he did not speak Bulgarian since his family belonged to the Turkish minority there and had no further close ties to Bulgaria. In sum, due to the mostly

“non-violent nature of the offences committed when a minor and the State’s duty to facilitate his reintegration into society, the length of the applicant’s lawful residence in Austria, his family, social and linguistic ties with Austria and the lack of proven ties with his country of origin, the Court finds that the imposition of an exclusion order, even of a limited duration, was disproportionate to the legitimate aim pursued, “the prevention of disorder or crime”. It was therefore not “necessary in a democratic society”.

Prima facie, one could apply these considerations to the case of Tina, if not for two significant differences: Not only was he older and had thus lived even longer in Austria (an issue I will address below), but he had also entered the country legally with his parents and was granted an “unlimited settlement permit” at the age of 15. Tina, however, had spent most of her time in Austria without a valid residence permit after her repeated asylum claims were rejected.

That is crucial. The legality or illegality of a foreigner’s stay means the world to the ECtHR when it comes to the possibility of infringing the right to private and family life. As it held in Pormes v the Netherlands (thanks go out to Adel-Naim Reyhani for this reference),

“if an alien establishes a private life within a State at a time when he or she is aware that his or her immigration status is such that the continuation of that private life in that country would be precarious from the start, a refusal to admit him or her would amount to a breach of Article 8 in exceptional circumstances only.”

This rationale even extends to children. In this sense, they are, de facto, ultimately held responsible for the actions of their parents. In Butt v Norway, the ECtHR explicitly agreed with the Borgarting High Court’s (the court of appeal) approach that

strong immigration policy considerations would in principle militate in favour of identifying children with the conduct of their parents, failing which there would be a great risk that parents exploited the situation of their children in order to secure a residence permit for themselves and for the children.

In similar fashion, the Austrian Federal Administrative Court held that the “actions of their parents are objectively attributed” to Tina and her sister although they “cannot be subjectively blamed for them”.

There thus seems to be surprisingly little to gain from ECtHR case-law involving deportations of children who unsuccessfully applied for asylum. Case closed?

“Adaptable age”?

Not yet. One legal issue remained: Some eight months before her deportation, Tina had lodged an additional claim based on the right to private and family life (§ 55 Asylum Act) which was never decided by the ministry of interior (such claims nevertheless do not prevent deportations since they have no suspensory effect), a violation of the six month-deadline set by the General Administrative Act (§73).

During this period – and this is crucial – she arguably moved beyond the “adaptable age” at which the ECtHR generally assumes that children have less problems to get accommodated in their country of nationality even if they have spent little to no time there and face difficulties with the language (according to her lawyer, Tina speaks Georgian but is unable to read or write). While this idea itself is contested as many questions concerning its consistency remain, there exists case-law in support of treating teenagers around the age of twelve no longer as adaptable: In Liu v. Russia, for example, the ECtHR found that the resettlement of a two children, one of them about eleven or twelve years old, “would mean a radical upheaval”, “especially” since they were “not of an adaptable age and … attending school in Russia”. For this reason alone, the Austrian ministry of interior should have taken another close look at her claim before the deportation (it argued that there would only have been a legal obligation to do so after two years).

By way of conclusion

The ECtHR’s jurisprudence is surprisingly permissive when it comes to deportations of minors even if they have spent a considerable amount of time elsewhere. The rationale is clear: children should not be “instrumentalized” by their parents to secure a legal stay for themselves and their family. Debates on “anchor babies” are not restricted to ius soli countries.

The downside is that states’ migration and asylum policies are difficult to balance with the rights of children (which are, after all, constitutionally stipulated in a distinct law). In line with this jurisprudence, the Austrian court(s) simply argued that there was no infringement of the right to private and family live since Tina’s sister and parents were all Georgian nationals and could thus live together there. Her long residence – six and a half years – and the corresponding integration in Austria were largely ignored. Instead, the family was simply treated as one monolithic block instead of looking at each case individually.

What now? Tina has returned to Georgia. Whether her family will again try to return and stay to Austria is unclear. For what it’s worth, the heated debate concerning her deportation prompted the government to establish a commission to evaluate whether children’s rights are sufficiently protected by Austrian courts. Still, as the foregoing observations have (hopefully) shown, the judges could have decided differently under the current legal framework, but were not necessarily obliged to do so.

We shall see whether the commission reaches a different conclusion. For the time being, the main responsibility lies with the ministry of interior while the competences of the commission only extend to the judicial branch. Wondering why? Politics, as usual.

Update from 17 August 2022:

The commission’s final report from July 2021 found that the rights of children were generally not sufficiently respected in Austrian asylum and residence permit procedures, inter alia due to the lack of clear guidelines for assessing their well-being and, as a result, incoherent jurisprudence. According to the head of the commission, similar cases led to different outcomes, conveying the impression of a “lottery” depending on the deciding judge.

On 16 August 2022, the Supreme Administrative Court then confirmed that the deportation of Tina, her mother and her sister had been disproportionate and thus unlawful since she had passed the “adaptable” age and because of the requirement to leave her family intact. Tina has returned to and been living in Austria since February 2022 with a residence permit for students. According to her lawyer, the procedures to arrange a return and residence permit for her mother and sister are still pending.