European Court of Human Rights

28 November 2008

FOURTH SECTION

Application no. 1820/08
by Steven O. OMOJUDI
against the United Kingdom
lodged on 9 January 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Steven O. Omojudi, is a Nigerian national who was born in 1960. He currently lives in Nigeria. He is represented before the Court by Mrs N. Mole of the Aire Centre, a lawyer practising in London.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was born in Nigeria and lived there until 1982. He was educated in Nigeria and for a period he was employed by a Nigerian aviation handling company. On 9 September 1982 he was granted two months’ leave to enter the United Kingdom as a student. His leave was subsequently extended to 15 January 1986. In 1983 the applicant was joined by his partner, who was also a national of Nigeria. The applicant married his partner in the United Kingdom in 1987. They had three children, who were born on 11 February 1986, 28 October 1991 and 16 September 1992. The children were born in the United Kingdom and all are British citizens. The oldest child has a daughter, who is now one and a half years old.

Prior to the expiry of his leave in January 1986, the applicant applied for a further extension. The following day, however, he was caught returning from the Netherlands with a British visitor’s passport obtained by deception. Although he was not prosecuted for the offence, the application to extend his leave was refused.

On 12 March 1987 the applicant was informed of his liability for deportation. He was served with a deportation order on 31 July 1987. He attempted to appeal against the order and a second deportation order was served on 4 December 1990. The applicant appealed against the second order, but the appeal was subsequently withdrawn.

The applicant was convicted of theft and conspiracy to defraud on 7 March 1989. He was sentenced to four years’ imprisonment. Other convictions the same day resulted in five terms of twelve months’ imprisonment to run concurrently.

On 24 October 1995 the applicant claimed asylum by post, but on 12 January 1998 the application was refused for non-compliance. On 28 September 2000 the applicant applied for leave to remain under an overstayer’s regularisation scheme. He was granted leave to remain until 18 April 2005, after which he and his wife were granted indefinite leave to remain.

On 19 November 2006 the applicant was convicted of sexual assault. The conviction stemmed from an incident in which the applicant, in his capacity as a housing officer, touched a woman’s breast without her consent. The applicant was sentenced to fifteen months’ imprisonment, with half to be spent in custody and half on licence, and he was registered as a sex offender. The offence was considered to be particularly serious as the applicant was in a position of trust at the time it was committed. The sentencing judge, however, did not recommend the applicant for deportation.

The Secretary of State for the Home Department made a deportation order on 31 March 2007 on the basis that deportation was necessary for the prevention of disorder and crime and for the protection of health and morals. The applicant appealed against that decision but the appeal was dismissed on 25 July 2007. Although the judge accepted that the applicant had established a family life in the United Kingdom, and that deportation would interfere with that family life, he concluded that the measure was proportionate because the applicant remained a potential offender who posed a threat to society. The applicant sought leave for judicial review, which was refused on 15 August 2007 and on 28 November 2007.

The applicant subsequently was served with removal directions set for 23 January 2008. On 18 January 2008 he introduced his case to the Court and on 24 January 2008 the Court ordered that the case be notified urgently to the Government under Rule 40 of the Rules of Court. On the same day the applicant again sought leave to apply for judicial review. Permission was refused and on 25 April 2008 the appeal against the refusal to allow judicial review was dismissed at an oral hearing. The applicant was served with new removal directions and he was deported to Nigeria on 27 April 2008.

From 24 January 2008 until 25 April 2008 both the applicant and his representative requested the applicant’s risk-assessment report, initially on a weekly basis and subsequently at regular intervals. The report, however, was only disclosed on 25 April 2008.

B.  Relevant domestic law

Section 5(3)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision on the grounds, inter alia, that the decision is incompatible with the Convention.

Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

A person who has been deported may apply to have the deportation order revoked. Paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended) provide that:

“390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:

(i) the grounds on which the order was made;

(ii) any representations made in support of revocation;

(iii) the interests of the community, including the maintenance of an effective immigration control;

(iv) the interests of the applicant, including any compassionate circumstances.

391. In the case of an applicant who has been deported following conviction for a criminal offence continued exclusion

(i) in the case of a conviction which is capable of being spent under the Rehabilitation of Offenders Act 1974, unless the conviction is spent within the meaning of that Act or, if the conviction is spent in less than 10 years, 10 years have elapsed since the making of the deportation order; or

(ii) in the case of a conviction not capable of being spent under that Act, at any time, unless refusal to revoke the deportation order would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees.

will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before, or the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order.

392. Revocation of a deportation order does not entitle the person concerned to re-enter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or direct to the Home Office.”

COMPLAINTS

The applicant complains under Article 8 of the Convention that his deportation to Nigeria violates his right to respect for his family and private life. He further complains under Article 34 that the delay by the Probation Service in providing him with the risk-assessment report interfered with his right to effectively present his case before the Court.

QUESTION TO THE PARTIES

Did the applicant’s deportation violate his right to respect for family and private life under Article 8 of the Convention?