VI. Right to Family and Private Life
Forced removals have a direct impact on the right to family and private life, both of the individuals themselves and of their families. In a significant number of cases reviewed by Human Rights Watch, men who had lived for many years in France were returned to countries they no longer (or never) knew and where they had no employment or social network. They left behind wives caring for school-age childrenmany of them French citizensin precarious financial and emotional states. In France the right to family life enjoys a prominent place in both public opinion and law. A coalition of nongovernmental and grassroots organizations galvanized considerable debate about the impact of criminal deportations on individuals and families. As noted above (see Chapter III), the coalition successfully campaigned for reforms in 2003 that increased protections against deportation for certain categories of people,190 but none of these protections apply in cases involving threats to national security, so that even someone who would otherwise enjoy absolute protection against deportation may be removed where the authorities allege he or she is implicated in terrorist activities. Most appeals against ministerial expulsion orders and administrative orders implementing criminal deportations in terrorism-related cases are based on right to family life concerns. International and French Law on Right to Family LifeUnder international and national law, the right to family life is a qualified right, insofar as interference with its enjoyment is legitimate where necessary to protect a greater public interestsuch as national securityand proportionate to the threat. In cases where there is no dispute that the expulsion will interfere with an individuals right to family life, the judicial authority charged with reviewing the legality of the measure must consider whether this interference is indeed necessarythat is, the individual does pose a threat and there is no other way to eliminate this threatand proportionatethat is, the gravity of the threat justifies overriding a fundamental right. This is the approach adopted by the European Court of Human Rights in numerous cases involving alleged violations of the right to family and private life guaranteed under article 8 of the European Convention. To assess whether interference with this right strikes the correct balance between the private interest of the individual in having a family life and the public interest in prevention of disorder and crime, the ECtHR takes into account, among other factors, the nature of the offense committed by the individual and his or her behavior in the time since the commission of the offense, the individuals ties to the country of residence and the country of nationality, his or her family situation, and the obstacles a spouse or children would face in the individuals country of nationality.191 In France, judicial authorities in both the criminal and administrative justice systems are required to conduct proportionality reviews when assessing criminal deportations and administrative expulsions. This was not always the case. Until the early 1990s the Council of State considered appeals against deportation orders grounded in the right to family life to be inadmissible.192 The Beldjoudi case of 1991 marked a turning point. Mohand Beldjoudi was born in 1950 in France to Algerian parents. When Algeria gained independence in 1962 Beldjoudis parents did not declare their intention to retain French citizenship under the terms of the French parliaments Order of 21 July, 1962. Beldjoudi, then a minor, lost his French citizenship on January 1, 1963. In 1970 Beldjoudi married a French woman born to French parents. By the time the French government was seeking his deportation; Beldjoudi had been convicted of a string of criminal offenses including assault and battery, weapons possession, theft and aggravated theft, and had spent almost eight years in prison. The government commissioner recommended in this case that the Council of State reverse its jurisprudence, admit the effect of article 8 in deportation cases, and conduct full proportionality reviews. The administrative court acquiesced and, after assessing proportionality, upheld Beldjoudis deportation. The Council of State reaffirmed this new approach in two other important cases that same year. The applicability of article 8 of the European Convention in expulsion cases and the need to conduct proportionality reviews are now well-established in administrative jurisprudence in France. The European Court has nonetheless found France in violation of article 8 in a number of cases, including with respect to Beldjoudi.193 In the cases of Ali Mehemi (1997) and Boubaker Mokrani (2003), both Algerian nationals, the court took the view that the fact they had been born in France, had lived there their entire lives, and had strong family attachments outweighed the gravity of their offenses (drug trafficking in both cases).194 In two other cases involving foreigners who had moved to France at a very young age, the court similarly found that expulsion would interfere disproportionately with their right to family life even though neither was married nor had children.195 The European Court has not, at this writing, had to consider under article 8 any of the cases in which France has deported a long-term French resident on suspicion of terrorist links or incitement. Impact on Those Subject to RemovalForced removal of individuals who were born in France or lived there for the better part of their lives, and who have stable marriages and children with French citizenship can amount to disproportionate interference with the right to family and private life of the individuals removed and their relatives, even in cases involving national security. At least seven of the deportees whose cases were examined by Human Rights Watch would have been protected against expulsion were it not for the national security exception. Mahdi E. was born in France and had lived there his entire life; his four children, all of whom are minors, are French citizens. Although he had spent brief stints of time in Algeria, Mahdi did not speak fluent Arabic when he was deported from France in 2005. Mohamed Chalabi was also born in France to Algerian parents, and lived there his entire life until he was deported in November 2001. He is the father of four French citizens. Nacer Hamani, another man who was convicted in the Chalabi affair, had moved to France when he was 13 years old. He married in 1989 and has three children, all born in France. Khelif Zoubir had lived in France for 30 years when he was deported in 2006. He is the father of five children, four of whom are French citizens. Zoubir was sentenced to two years in prison and a permanent ban from French territory. Abdelkader Bouziane had lived legally in France since 1979 and, as noted above, is the father of 16 children, 14 of whom are French citizens; most are minors. The European Court has in the past taken the view that even individuals convicted of serious crimes should have the right to remain in France, in cases when they have deep family ties to the country. In the Beldjoudi case, for example, Judge Martens wrote a concurring opinion in which he argued that expulsion severs irrevocably all social ties between the deportee and the community he is living in and I think the totality of those ties may be said to be part of the concept of private life, within the meaning of Article 8.196 In this he agreed with Henry G. Schermers of the former European Commission of Human Rights197 that the provisions of article 8 should protect certain individuals from expulsion even in the absence of close family ties because the expulsion of a second-generation immigrant fully integrated into French society necessarily destroys his private life.198 Echoing the view that long-term foreign residents, especially second-generation immigrants, should be afforded the same security of residence as nationals, Schermers wrote,
In his separate opinion to the courts judgment, Judge De Meyer went even further to argue that Beldjoudis deportation would also constitute inhuman treatment, in that Mr. Beldjoudi would be ejected, after over 40 years, from a country which has always in fact been his since birth, even though he does not possess its nationality.200 Impact on Family MembersForced removal also interferes with the right to family life of the spouses and children of those subject to removal. While the impact of forced removal on the individuals family is generally taken into account by the courts in their review of the proportionality of the measure, this review does not examine whether the measure might violate the autonomous right of family m embers to family and private life. It is our understanding that there is no established jurisprudence in France suggesting that a wife or child of a deportee would have standing to allege a violation of their rights under article 8 in a proceeding to determine the legality of a forced removal. Provided that family members are not implicated in the activities of the individual giving rise to a forced removal, there may be cases where the interference with their right to family life is disproportionate, even though the rights of the person subject to removal have not been violated. The impossibility of enjoying each others company, which the European Court of Human Rights views as a fundamental element of the right to family life, is the clearest consequence of forced removal.201 All of the seven families whose members we interviewed are well-established in France: the wives are either French citizens or long-term residents, and none considers it viable that they relocate to the country of their husbands nationality. Mothers of school-age children emphasized not only the fact that France is the only home their children have ever known, but also the need to ensure the continuity and quality of their education as reasons why they would not be able to join their husbands permanently. For the most part, the only contact between deportees and their familieswhich in many cases include young sons and daughtersis through phone calls and, in some cases, the internet. One woman said her children say they have a father by internet.202 Most families are reunited during very occasional visits, though two deportees told us they had not been able to see their families since their expulsion (periods of time ranging from seven months to two years). The frequency of phone calls and visits is limited due to financial considerations. The majority of those forcibly removed with whom we spoke in Algeria are currently unemployed and unable to contribute to the family economy, and most of the families we met rely on some form of state welfare. Human Rights Watch spoke with seven wives and two adult sons of people who had been removed. In some cases, we also spoke with children who were minors, or they were present or nearby during the interview. All of them spoke of the emotional stress caused by the separation and the hopelessness of the situation. All names have been changed to protect the identity of minors. The wife of Hazim S. described her commitment to remaining in France despite her husbands deportation:
The primary concern for most of the wives is the impact on their children. This is particularly acute for younger children and those who witnessed their father being detained. Dilek D., a Turkish national who has lived in France since she was five, said her 11-year-old son has not been the same since he witnessed his father being arrested in his apartment building parking lot in 2005. Since that day my son is aggressive, he has a rage inside. Hes been having problems at school. And then they say my child is problematic, but where does it come from, who created it? We want our children to be integrated, to trust people here, but how can they do that when they see who has torn their family apart?204 Several mothers have sought psychological counseling for their children. Nadija R. said she became concerned because her 11-year-old son, who had seen his father arrested, started falling apart after the expulsion. He cried all the time. [Name omitted; her older daughter] keeps everything to herself, but he cries a lot still. Ive forbidden them from telling their teachers at school [about the expulsion] and one day my youngest one cried and nobody could understand why. I know this is going to do harm to my children.205 Haala L. said her six-year-old daughter suffers from anxiety and stomach pains, and her nine-year-old boy has constant nightmares. He and his older sister, 10, are both being monitored by their schools psychologist for problems with cognitive and emotional development. The psychologist works with them to try to elaborate and calm everyones tension and anxiety The complex situation of their father and the expulsion causes them great anxiety.206 Several expressed concerns that their sons were at risk of being harassed, incarcerated, or otherwise limited in their life choices because of their fathers expulsion. Florence T., a French Muslim convert, said, Im afraid my son might be imprisoned because of his father, Im afraid he might want to study certain things like chemistry [which would invite attention] I noticed that I shouldnt buy ammonia for the house to avoid problems 207 Florence has seven children: five with her first husband, and two with the man who was deported. Florence, like many others, talked about the economic hardship brought about or exacerbated by the removal. Although she received state subsidies while her husband was in prison, she said she was told she no longer had the right once he was expelled, as this implied only a geographical separation and not the impossibility of him earning money to contribute to his childrens welfare. Florence said she was told she would have to be a single mother to receive more financial aid; I would have to get a divorce to feed my children, she complained.208 In contrast, several other women do receive state support though they said it was insufficient and problematic. Laila N. is a 22-year-old French citizen who gave birth to her son in March 2005, roughly a month before her husband was deported. Because she has been unable to place her child in a public daycare center, she does not work and survives on roughly 750 per month in state welfare. Every month there are delays because the authorities insist on getting her husbands signature, even though he is in Algeria. Laila is now trying to find a night job so she can continue to take care of her child during the day until she finds another solution. In any event, she said, I cant sleep. I have anxiety attacks. I have to keep the television and all the lights on. I dont know where I am or where Im going.209 Nejla E. gave up her studies in 2004, when her husband was remanded to prison to complete the remaining six months on a three-year sentence he had received for association de malfaiteurs in 1999. With children aged thirteen, ten, eight and four, Nejla does not work. Already they dont have their father with them. I dont want them to be really affected by that, so I need to be there 100 percent for them. I take them to their sports classes, I tell them always to study I dont want to raise sick people.210 189 Human Rights Watch interview with Mahmoud Hebia, lawyer, Lyon, June 22, 2006. 190 In its most recent report, published in 2005, the European Commission against Racism and Intolerance (ECRI) note[d] with concern that the law does not fully guarantee the right to private and family life, in every sense of the term, and strongly recommend[ed] that the French authorities ensure that no expulsion order is served on non-citizens in violation of their private and family life. ECRI, Third Report on France, Adopted on 25 June 2004 and made public on 15 February 2005, CRI (2005) 3, http://www.coe.int/t/e/human_rights/ecri/1-ecri/2-country-by-country_approach/france/third_report_France.pdf (accessed February 6, 2007), paras. 47-48. 191 See Boultif v. Switzerland , no. 54273/00, ECHR 2001-IX, para. 48; Mokrani v. France, no. 52206/99, 15 July 2003, para. 30. Both available at www.echr.coe.int. 192 See Council of State decision, 25 July, 1980, Touami ben Abdeslem v. Minister of the Interior, No. 21222, and Council of State decision, 6 December, 1985, Minister of the Interior v. Chrouki, No. 55912. 193 Beldjoudi v. France, judgment of 26 March 1992, Series A no. 234-A,available at www.echr.coe.int. 194 Mokrani v. France; Mehemi v. France, judgment of 26 September 1997, Reports of Judgments and Decisions 1997-VI., available at www.echr.coe.int. After the judgment in the case of Ali Mehemi the competent criminal appellate court converted the permanent exclusion order to a temporary 10-year exclusion and the Interior Ministry issued Mehemi a visa to return to France, subject to a compulsory residency order. Mehemi made a second application to the ECtHR alleging that the continued existence of the temporary exclusion order was a disproportionate interference with his right to family life, but the court found that as the issuing of the visa had deprived the order of legal effect there was no violation of article 8. With respect to the compulsory residence order, the court did not consider it on the merits as Mehemi had not challenged it before the French courts, and when the 10-year order elapsed, the Ministry lifted the compulsory residence order. Mehemi v. France (no. 2), no. 53470/99, ECHR 2003-IV, available at www.echr.coe.int. 195 Ezzouhdi v. France, no. 47160/99, 13 February 2001, available at www.echr.coe.int; Nasri v. France judgment of 13 July 1995, Series A no. 320-B, available at www.echr.coe.int. 196 ECtHR, Beldjoudi v. France, Concurring Opinion of Judge Martens. 197 Henry G. Schermers was a member of the now defunct European Commission of Human Rights, which prior to 1998 examined and issued a report on the merits of any case before it could be referred to the European Court of Human Rights. 198 Beldjoudi/Teychene v. France (App. 12083/86) (Rapport de la Commission) (Opinion Concordante de M.H.G. Schermers à laquelle Mme G.H. Thune declare se rallier) (1990), available in French at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Beldjoudi&sessionid=10995812&skin=hudoc-en (accessed October 19, 2006). 199 Ibid. 200 ECHR, Beldjoudi v. France, Concurring Opinion of Judge De Meyer. The UN Human Rights Committee has argued that the scope of his own country in article 12 of the ICCPR, guaranteeing the right to freedom of movement, is not limited to nationality in a formal sense, that is nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien Human Rights Committee General Comment 27, Freedom of Movement (Art. 12), U.N. Doc. CCPR/C/21/Rev.1/Add.9 (1999), http://www1.umn.edu/humanrts/gencomm/hrcom27.htm (accessed December 10, 2006). 201 See for example Mehemi v. France (no. 2), para. 45. 202 Human Rights Watch interview with Nadija R., Paris, December 5, 2006. 203 Letter dated September 30, 2002. On file with Human Rights Watch. 204 Human Rights Watch interview with Dilek D., Villeurbanne, France, June 23, 2006. 205 Human Rights Watch interview with Nadija R., Paris, December 5, 2006. 206 Handwritten note by psychologist with the National Educational System, dated October 3, 2006. 207 Human Rights Watch interview with Florence T., Montfermeil, France, December 7, 2006. 208 Ibid. 209 Human Rights Watch interview with Leila N., Paris, December 4, 2006. 210 Ibid. |