European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2009/1140.html
Cite as: [2009] ECHR 1140
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7 July 2009
FOURTH SECTION
Application no.
44048/07
by J.M.B.
against the United Kingdom
lodged on 3
October 2007
STATEMENT OF FACTS
THE FACTS
The first applicant, Mr J.B.M., is a Ugandan national who was born in 1978. He currently lives in Uganda, having been deported from the United Kingdom on 8 November 2007. The second applicant, Renika Williams, is a British citizen born on 2 January 1996. She currently lives in the United Kingdom. The applicants are represented before the Court by Mrs N. Mole, 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 first applicant travelled to the United Kingdom with his father and younger brother in or around 1989 when he was eleven years old. His mother and older brother were already resident there. The first applicant was granted leave to remain in the United Kingdom and on 25 January 2000 he was granted Indefinite Leave to Remain.
1. The first applicant’s relationship history
Between 1994 and 1997 the first applicant was in a relationship with Samantha Hector, a British citizen with Jamaican heritage. They had two children together: Isaac, who is now fifteen years old, and Shakila, who is now fourteen.
During the time he was in a relationship with Samantha Hector, the first applicant was also involved in a relationship with Sumbrina Williams and on 2 January 1996 she gave birth to the second applicant. The relationship ended shortly afterwards. Sumbrina Williams was a drug user and she developed mental health problems. As a consequence, the second applicant was sent to Jamaica to live with her maternal grandmother. She returned to the United Kingdom in and around April 2002. Around this time, however, Sumbrina Williams was hospitalised following a breakdown and for at least four months the first applicant and his new partner, Bernadette Boateng, cared for the second applicant.
The first applicant’s relationship with Bernadette Boateng, a British citizen with Ghanaian heritage, began in 2000. On 20 March 2002 she gave birth the first applicant’s fourth child, Cairo. The relationship broke down when the first applicant was sent to prison in 2003, but the couple remained on good terms for the sake of their daughter.
2. The first applicant’s criminal record
Between 1995 and 2001 the first applicant received nine convictions for twenty-one offences. The majority of these offences were driving offences, and included driving whilst under the influence of excess alcohol and driving whilst disqualified. He received a mixture of community and custodial sentences, all of which were completed.
On 8 December 2002 the first applicant was arrested at Gatwick Airport after an x-ray confirmed internal concealment of forty-one packages containing three hundred grams of cocaine. He pleaded guilty to being knowingly concerned in the importation of a Class A controlled drug and was sentenced to fifty-four months’ imprisonment.
While he was serving the sentence the first applicant had telephone contact with the second applicant every fortnight and she visited him on at least one occasion. He also maintained contact with Bernadette Boateng and his daughter, Cairo.
On 17 February 2005 the Secretary of State for the Home Department wrote to the first applicant to warm him that if he were to come to the adverse notice of the authorities in future, the Home Office would be obliged to give further consideration to the question of whether he should be deported.
While in prison the first applicant agreed to give evidence against his former criminal associates. On 8 March 2005 he was released from prison and placed in a witness protection programme. He was moved to Derby and none of his family members were informed of the programme.
3. Care proceedings
On or about 14 December 2005 the second applicant called the first applicant from school, asking when she could see him. The first applicant spoke with a teacher at the school, who confirmed that she was in a bad state and may be suffering from neglect at home. The first applicant and Bernadette Boateng visited the school two days later, even though it violated the terms of the witness protection programme. On arrival, the first applicant was told that the second applicant had been taken into care by social services as her mother, Sumbrina Williams, was being accommodated in a mental hospital. The first applicant immediately instructed a lawyer to represent him in the care proceedings.
The second applicant was placed in temporary foster care, but she was very unhappy and expressed a wish to live either with the first applicant or with her paternal grandmother. She also requested contact with her father. The children’s guardian recommended that supervised contact should take place outside London once a month.
In May and June 2006 the first applicant committed further motoring offences. He was convicted of driving dangerously and aggravated vehicle taking. He pleaded guilty and was sentenced to two years’ imprisonment.
Nevertheless, the psychiatrist appointed to represent the family in the care proceedings remained of the view that contact with her father was in the second applicant’s “emotional interests”. He recommended that monthly telephone contact be initiated and that the second applicant be allowed to visit the first applicant. In view of the psychiatrist’s report and the applicants’ wishes the guardian also recommended contact. Contact subsequently took place and was noted as having had “a very good effect on [the second applicant’s] emotional well-being”. Concerns had been raised about the second applicant’s sexual interests and behaviour, but during contact the first applicant was able to offer parental guidance.
At an unspecified date the second applicant was removed from her foster carers and placed in a children’s residential unit.
On 18 December 2006 a hearing was held on the application by social services to take the second applicant into care. The judge directed that social services assess the paternal grandmother’s suitability as a carer for the second applicant.
In May 2007 an order was made placing the second applicant in the care of the local authority, with the court approving the plan to place her with her paternal grandmother as soon as possible. A directions hearing was listed for 25 October 2007, with the final hearing scheduled to take place on 21 January 2008.
The second applicant subsequently went to live with her paternal grandmother, who was supported and monitored by social services. The goal was for the first applicant to eventually assume the care of the second applicant.
4. Deportation proceedings
On 27 March 2007 the Home Office Border and Immigration Agency wrote to the first applicant asking him to provide reasons why he should not be deported in light of his criminal convictions. The first applicant provided reasons, which were rejected by letter of 8 May 2007.
The first applicant appealed against that decision. The appeal was listed for hearing before the Asylum and Immigration Tribunal (“AIT”) on 3 July 2007. Following two unsuccessful adjournment applications, an adjournment was granted on the day of the hearing as the case was not in a presentable form. It was accepted that this was not the direct fault of the applicant. The case was then re-listed for 14 August 2007. At the hearing the first applicant requested an adjournment because of the ongoing care proceedings. Although he was not seeking an adjournment to await the final hearing in January 2008, he submitted that there were a number of overlapping features between the two sets of proceedings. In particular, some professional reports which could be of assistance to the deportation and human rights appeal had been prepared in the context of the care proceedings and therefore could not be disclosed without the consent of third parties. The first applicant’s representatives had sought the consent of social services but received no reply. Consequently, no documents from the care proceedings could be produced to the court, including care plans which could go to the nature and nuances of the first applicant’s family life in the United Kingdom.
The AIT refused to grant the adjournment, finding instead that the first applicant could give evidence on the nature of his family relationships. The AIT then dismissed the appeal both under the Immigration Rules and on human rights grounds. It found that the first applicant’s removal was proportionate to the legitimate aim to be achieved, namely the need to control the entry of non-nationals onto the territory of the United Kingdom. In reaching this conclusion, the Tribunal held, inter alia, that the first applicant’s relationship with the second applicant was “very limited and not of a sufficient weight to allow the appeal on Article 8 grounds”.
The first applicant’s application for an order for reconsideration was refused by the AIT on 18 September 2007. On 23 September 2007 he was advised by counsel that there were insufficient prospects of succeeding in any application for judicial review.
Removal directions were served on the first applicant on 2 November 2007. He received a final visit from the second applicant on 7 November 2007 and he was deported to Uganda on 8 November 2007.
5. Events following the first applicant’s deportation
Since his arrival in Kampala, the first applicant has been living in the care of the Church. As he has been unable to secure employment, he has no income and is completely dependant on charity. He has regular telephone contact with Cairo, as her mother makes an effort to ensure that they are able to talk twice a week for twenty to thirty minutes. He has faced considerable difficulty in contacting his other children. He has spoken once with Isaac but has not made contact with Shakila.
The second applicant’s placement with her paternal grandmother was not successful as her grandmother was unable to care for her without the support of the first applicant. She was returned to the children’s home and remains living there. As the first applicant was not present at the final hearing, no order was made regarding contact or parental responsibility. The first applicant only managed to contact the second applicant nine months after his deportation. She has been given his telephone number but has no phone card and cannot make international calls.
B. Relevant domestic law and practice
1. Primary legislation
Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Section 3(5)(b) of the same Act (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(1)(a) of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against a decision to deport, inter alia, on the grounds that the decision is incompatible with the Convention and that it was not in accordance with the Immigration Rules.
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.
At the time of the first applicant’s appeal hearing, there was no obligation on the AIT to take into account the impact of an immigration decision on individuals who were not themselves subject to a decision under appeal, although it was open to such persons to bring separate proceedings before the High Court under Section 7 of the Human Rights Act. Section 7 provided that a person who claims that a public authority has acted (or proposed to act) in a way which is incompatible with a Convention right could bring proceedings against the authority in the appropriate court or tribunal. In the recent judgment of Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, determined after the deportation of the first applicant, the House of Lords held that it was likely that the legislators intended that the rights of all family members should be considered in the course of an appeal.
2. The Immigration Rules
The Rules relating to the revocation of a deportation order are contained in paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended), supplemented by Chapter 13 of the Immigration Directorate’s Instructions (“IDIs”). There is no specific period after which revocation will be appropriate although Annex A to Chapter 13 of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal. Cases which will normally be appropriate for revocation three years after deportation include those of overstayers and persons who failed to observe a condition attached to their leave, persons who obtained leave by deception, and family members deported under section 3(5)(b) of the Immigration Act 1971. With regard to criminal conviction cases, the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “spent” under section 7(3) of the Rehabilitation of Offenders Act 1974. Paragraph 391 of the Rules, however, indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course. This is expanded on in Annex A to Chapter 13 of the IDIs, which indicates that revocation would not normally be appropriate until at least 10 years after departure for those convicted of serious offences such as violence against the person, sexual offences, burglary, robbery or theft, and other offences such as forgery and drug trafficking.
COMPLAINTS
The applicants complain under Article 8 of the Convention that the decision to deport the first applicant violated their right to respect for their private and family life. In particular, they submit that the decision to deport was not proportionate to the legitimate aim of maintaining an effective system of immigration control. Moreover, the applicants submit that the second applicant ought to have had her interests represented in the deportation proceedings. As the decision concerned her future her Article 8 rights required the same protection as those of the first applicant.
QUESTIONS TO THE PARTIES
Did the first applicant enjoy family life in the United Kingdom? More particularly, did family life exist between the first applicant and the second applicant?
Did the deportation of the first applicant violate the applicants’ right to respect for their family and private life?
Did the failure of the Asylum and Immigration Tribunal to consider the second applicant’s Article 8 rights in the context of the first applicant’s deportation appeal violate her right to respect for her family life under Article 8?