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In a welcome change article 8 of ECHR being applied more regularly on children of people facing deportation says expert

Date: (19 November 2012)    |    

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In cases involving children of people facing deportation there has been a sea change according to an immigration solicitor.

The courts approach to the children of persons facing deportation, extradition or criminal sentencing in as far as application of Article 8 was concerned has seen a sea change and he said it was a welcome sign.

In Laskowska v Poland, Collins J allowed an appeal against extradition on the basis that the article 8 rights of the requested person’s son would be disproportionately interfered with. The appellant successfully relied upon the Supreme Court’s recent decision in R (HH) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, in which it was re-emphasised that the best interests of the child should be a primary consideration.

The appellant who was convicted in 2006 for letting someone to divide up less than 50 grams of marijuana in her flat was given a suspended sentence which was again activated in 2009 due to an unpaid fine but a European arrest warrant was issued in her name only in 2011 by which time the appellant had a young son of two years when the Administrative Court heard the appeal in 2012

After years of consistent magistrate’s court and High Court decisions to extradite the sole carers of young children, the decision in HH finally compelled the court to put the interests of the child above the public interest in extraditing the carer.

This welcome change in the application of article 8 in extradition cases could not be applied in all cases such as the appeal against sentencing in R v Petherick [2012] EWCA Crim 2214, in which the article 8 of the defendant’s two year old child was advanced with reliance upon HH.

The defendant a 22 year old nursing student a single mother of a 16 month old son in a momentary recklessness and encouragement of her friends drove her car recklessly under the influence of alcohol and crashed into a double decker causing the death of one of her passengers.

But the appeals court was at pains to stress that the sentencing judge who had sentenced the woman had dealt the matter impeccably.

Only relief that was given was that five year sentence had been reduced to three years and nine months, considering the combined factors of personal mitigation, coupled with the effect upon the child.

The appeals court set out in detail how a sentencing court should approach the issue the key point being that the sentencing judge would be the person to determine the balance especially where a custodial sentencing is being considered.

Reductions of sentence were also a possibility.