Should Offenders Avoid Deportation if their Children are Citizens?

Earlier this year, a man in the UK was successful in overturning his deportation order because he had a child in Britain. The man, known only as VADSM, had been convicted of several driving offences, acting with intent to pervert the course of justice, as well as child cruelty for having his four-year-old in the car while drink driving.

He was sentenced to two years imprisonment, which meant that he faced deportation as a non-citizen.

Under UK law, any non-British citizen can be deported if they are sentenced to twelve months or more in prison.

The Home Secretary notified the man that he would be deported, but he appealed the decision.

The Judges ruled that it would be “unduly harsh” for VADSM to be separated from his daughter, even though she was the victim of the ‘child cruelty’ charge.

The UK Human Rights Act

VADSM’s lawyer argued that deportation would breach his rights under Article 8 of the Human Rights Act, which entrenches the European Convention on Human Rights into British Law. Article 8 entrenches the “right to respect for private and family life.”

The Article says that everyone has the right to respect for their family life, and prohibits interference by a public authority unless it is necessary and in accordance with the law. Examples of acceptable interference include: when it is in the interests of national security, public safety, preventing disorder or crime and protecting the rights and freedoms of others.

The decision was appealed by the Homes Secretary to the Upper Tribunal, but once again VDSM successfully avoided deportation. The Judge agreed with the ruling of the Lower Immigration Tribunal that deportation would be a violation of his family rights, and that separating father and child would be “unduly harsh.”

What is the law in Australia?

The situation when it comes to deporting people who have committed crimes in Australia is very different.

We don’t have a Human Rights Act, or any Bill of Rights for that matter. Australia has signed a number of treaties and conventions – but this does not necessarily make them part of Australian law.

This of whether, and when, international instruments become part of Australian law was considered by the High Court in the controversial case of Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995).

The case of Mr Teoh

Back in 1988, Mr Ah Hin Teoh was granted a temporary visa in Australia. After marrying his brother’s former de facto partner, an Australian citizen, they had three children, in addition to four children Mrs Teoh had with her former partner (Teoh’s brother).

Mr Teoh was later convicted of importing heroin into the country and sentenced to six years prison. His application for permanent residency was refused on that basis, and he was told he would be deported.

But Teoh decided to fight the decision and argued that, due to the UN Convention on the Rights of the Child (UNCROC), he should not be deported. UNCROC states that “in all actions concerning children, the rights of the child shall be a primary consideration.”

Teoh argued that his deportation would be against the best interests of the children – six of whom were living with his wife and under the age of ten. He argued that his wife was unable to properly care for the children as she was addicted to drugs, and that he was the only one keeping the family together.

He fought the deportation order all the way to the High Court of Australia – where, in 1995, the Justices  agreed with him. Their Honours found that Teoh had a “legitimate expectation” that the decision-maker in his cases would act in accordance with UNCROC. This is because, although a particular treaty or convention had not been incorporated into Australian law, the fact that Australia had signed and/or ratified a particular instrument gave people the ‘legitimate expectation’ that the country would abide by it. The court went on to find that it would not be in the best interests of the children for Teoh to be deported – and the order was overturned.

The government was less-than pleased, and twice introduced legislation to overrule the judgment, although the legislation was never passed.

What is the law now?

Section 201 of the Migration Act allows for deportation of non-citizens who have:

  • Been convicted of an offence in Australia and sentenced to 12 or more months in prison; and
  • Have resided in Australia for less than 10 years, or for multiple periods of less than 10 years total.

Additionally, section 501 of the Act allows the Immigration Minister to deport a person who he or she reasonably suspects does not pass the ‘character test.’ This includes situations where a person has a substantial ‘criminal record.’

When it comes to deporting people with children, the decision in Teoh no longer holds the same weight.

More recent High Courts judgments have retreated from the position following ministerial directives regarding the deportation of people with children. These directives overruled the operation of the  ‘legitimate expectation’ doctrine, which cannot operate in the fact of explicit executive or ministerial intentions to the contrary. When the question came before the High Court eight years later, in 2003, the principles in Teoh, while not overruled, were undermined. In Re Minister for Immigration and Ethnic Affairs; Ex Parte Lam the principle of ‘legitimate expectation’, especially in relation to treaties, was cast into doubt. The ultimate result is that although international treaties and charters are still influential, they are no longer treated with the same authority.

This essentially means that non-Australian parents who are convicted of serious offences are less likely have their deportation order overturned on the grounds of the rights of their children.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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