Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 143
other, the degree of hardship the family and its members would encounter
as a consequence of such removal.” 460
In this regard, for example, conviction for drug-related offences or
for offences carrying a considerable prison sentence will more often
incline the Committee to find expulsions reasonable, even when that
would cause considerable hardship for the applicant’s family, in particular
when the rest of the family did not join the applicant in the communication
before the Committee. 461 However, the decision would be
disproportionate if it was “de facto impossible [. . .] to continue family
life” outside of the expelling country. 462 In addition, the European Court
of Human Rights has held that, when the children are remaining in the
expelling country and the expellee has a proven family relationship with
them, the children’s best interest must be taken into account. 463 Finally,
it is important to stress that an expulsion following criminal conviction
does not run afoul of the principle of prohibition of double jeopardy, as
it is to be considered a measure which is preventive rather than punitive
in nature. 464
In cases where the person is to be expelled as a consequence of committing
a criminal offence, the European Court of Human Rights has
established guiding criteria to be considered in evaluating whether a
measure of expulsion that interferes with private or family life, is necessary
in a democratic society and proportionate to the legitimate aim
pursued: 465
1. the nature and seriousness of the offence committed by the applicant;
2. the length of the applicant’s stay in the country from which he or
she is to be expelled;
460 Rubin Byahuranga v. Denmark, CCPR, op. cit., fn. 334, para. 11.7; Madafferi and Madafferi v.
Australia, CCPR, Communication No. 1011/2001, Views of 26 August 2004, para. 9.8; Omojudi
v. United Kingdom, ECtHR, Application No.1820/08, Judgment of 24 November 2009.
461 Ibid., para. 11.8.
462 Amrollahi v. Denmark, ECtHR, Application No. 56811/00, Judgment of 11 July 2002, paras.
36–44; Sezen v. the Netherlands, ECtHR, Application No. 50252/99, Judgment of 31 January
2006; Jama Warsame v. Canada, CCPR, Communication No. 1959/2010, Views of 21 July
2011, para. 8.10.
463 Udeh v. Switzerland, ECtHR, Application No. 12020/09, Judgment of 16 April 2013, paras.
52–54.
464 Üner v. the Netherlands, ECtHR, op. cit., fn. 454, paras. 54–58; Vasquez v. Switzerland,
ECtHR, op. cit., fn. 456, para. 50 (the duration of the exclusion from the territory is part of
the proportionality assessment of the measure).
465 Boultif v. Switzerland, ECtHR, Application No. 54273/00, Judgment of 2 August 2001, para.
48. See also, Hamidovic v. Italy, ECtHR, Application No. 31956/05, Judgment of 4 December
2012. “[T]he factors to be examined in order to assess the proportionality of the deportation
measure are the same regardless of whether family or private life is engaged”, A.A. v.
the United Kingdom, ECtHR, Application No. 8000/08, Judgment of 20 September 2011,
para. 49.