14 October 2009
by Patrick KINGONZILA
against the United Kingdom
lodged on 2 September 2008
STATEMENT OF FACTS
The applicant, Mr Patrick Kingonzila, is a Congolese national who was born in 1983. He is represented before the Court by Mr T. Mathias-Nwaulune, of Fadiga & Co. Solicitors, a law firm based 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, then seven years of age, arrived in the United Kingdom from the Democratic Republic of Congo with his parents and siblings on 27 December 1990. His father claimed asylum upon arrival, with his family, including the applicant, as dependants upon his claim. In 1996, the applicant was taken away from his parents and placed in the care of a local authority for a period of approximately three years. On 5 March 1998, his father’s application for asylum was refused by the Secretary of State, but the family, including the applicant, were granted exceptional leave to remain in the United Kingdom for twelve months. No appeal was lodged against the refusal of the asylum claim.
In 1998, the applicant’s daughter (“J”) was born.
On 23 March 2002, the applicant and his family were granted the right to remain in the United Kingdom on an indefinite basis.
On 3 June 2003, at Inner London Crown Court, the applicant was sentenced to a total of six years’ imprisonment for two counts of robbery, two counts of attempted robbery, one count of theft, one count of assault occasioning actual bodily harm and one count of burglary of a dwelling. The applicant already had nine previous convictions for various offences committed between 31 May 1996 and 2003, including theft, robbery, being carried in a stolen car and handling stolen goods. Additionally, at the age of fourteen, he had been cautioned for the offence of sexual intercourse with a girl under the age of thirteen.
On an unspecified date in 2003, the applicant’s parents, and two of his siblings were granted British citizenship. However, the applicant’s application for British citizenship (as well as an application made by one of his brothers) was refused on 15 October 2003 as a result of his criminal convictions.
On 4 August 2005, whilst still in prison, the applicant was assessed by the Parole Board as still being at a high risk of reoffending, and a medium to high risk of harm to members of the public. A need to address his violent and aggressive behaviour was identified.
On 14 February 2006, whilst still in detention, the applicant commenced a relationship with a British citizen, who has three children from a previous relationship born in 1995, 2000 and 2001.
On 25 October 2006, the Secretary of State decided to make a deportation order against the applicant, deeming it to be conducive to do so in view of his convictions of 3 June 2003.
On 23 November 2006, his conditional release date from prison, the applicant was detained under immigration powers. On 22 December 2006, he was released on immigration bail. In a letter of the same date, the Secretary of State set out her reasons for making a deportation order against him stating :
“The Secretary of State regards as particularly serious those offences involving violence, sex, arson and drugs. Also taken into account is the sentencing court’s view of the seriousness of the offence, as reflected in the sentence imposed, the result of any appeal upon that sentence, as well as the effect of that type of crime on the wider community......
In your case the sentencing judge commented as follows ‘the broad pattern of robbery of small post offices and shops extending from June to September of last year (2003), offences in which each of you chose to take part, shows in respect of the robberies that were actually successful, and indeed some of them were not, one or more of the following features: extreme violence to the protective screen at the post offices, the visible use of terrible weapons with the resulting and inevitable fright caused to the staff. One feature [sic]. Another, some violence to the person, usually not very great but obviously quite sufficient to cow or frighten one or other members of the staff. On one occasion, one of the robbers in the end was actually astride the pharmacy assistant as she lay on the floor. Thirdly, the visible possession of weapons such as hammers and screwdrivers [sic]. On one occasion a screwdriver was used, was held and brandished to reinforce a demand. Fourthly, two or more usually three, robbers were involved, all, whether in the dark or outside of it, fit young men usually hooded. No-one can doubt, of course, that only heavy custodial sentences are justified.’
...It is concluded that in the light of the seriousness of your criminal offences your removal from the United Kingdom is necessary in a democratic society for the prevention of disorder and crime and for the protection of health and morals.”
The applicant appealed to the Asylum and Immigration Tribunal (“the Tribunal”), relying inter alia on Articles 3 and 8 of the Convention. First, he argued that he would be at risk of persecution or serious ill-treatment if returned to the Democratic Republic of Congo because of his father’s political background, because he looked like a rebel from Uganda or Rwanda, and because he would be returned as an involuntary returnee deported from the United Kingdom as a result of serious criminal offences. Second, he argued that, in light of his extensive private and family life in the United Kingdom (including a British daughter and close family members of all whom were British), the age at which he arrived in the United Kingdom and the length of his stay there, the decision to deport him to the Democratic Republic of Congo (where he knew no one and did not speak the language) was a violation of Article 8.
The applicant’s appeal against the decision to deport him was dismissed by the Tribunal on 21 February 2007. In relation to Article 3, the Tribunal was not satisfied that the applicant would be at any risk in the Democratic Republic of Congo because of his political opinion, or any political opinion imputed to him. It considered that the applicant and his family had provided insufficient evidence that his father had had problems with the Mobutu regime, or that he and his mother had previously been attacked by agents of that regime. In any event, the Tribunal considered that as the Mobutu regime had ceased to exist in 1997, the applicant would no longer be at risk in the Democratic Republic of Congo as a result of those problems. The Tribunal did not accept that there was any evidence that the applicant would be considered to be of either Ugandan or Rwandan ethnicity by either the Congolese authorities or citizens of the Democratic Republic of Congo. Indeed, it found that he spoke sufficient French, and that he might also speak Lingala. The Tribunal did not accept that there was any objective evidence, which showed that persons returned to the Democratic Republic Congo as deportees, having committed serious offences in the United Kingdom, would be at risk of ill-treatment upon return.
In relation to Article 8, the Tribunal accepted that the applicant had an established family life with his parents and siblings, and that it was highly unlikely that they would visit him in the Democratic Republic of Congo. The Tribunal also accepted that he had established private life with his daughter J. However it found that private life to be of a limited nature, as the applicant had not been closely involved in J’s life from 2001 or 2002 until his release on 22 December 2006, and had only had regular contact since that date. The Tribunal also accepted that J’s mother would not take her to the Democratic Republic of Congo to visit the applicant. Nevertheless, the Tribunal found his removal to be proportionate, noting the seriousness of the offences which triggered the decision to deport the applicant, his earlier criminal offending and the evidence that there was a risk that he would commit further offences and harm members of the community. It also noted that the applicant was not a minor but 19 years of age at the time of the offences, and 23 years of age at the time that the deportation order was made.
On 14 March 2007, a Senior Immigration Judge refused his application for reconsideration of the appeal decision as the Tribunal had properly applied case law, including the relevant case-law of this Court, and there was no arguable error of law disclosed. On 4 May 2007, the deportation order against the applicant was signed. On 23 August 2007, he came to the attention of immigration authorities and was thus detained under immigration powers.
On 13 December 2007, the applicant applied for asylum.
On 23 May 2008, the Secretary of State, relying in substance upon the findings of the Tribunal of the 21 February 2007, refused the applicant’s asylum claim and issued a “Decision to Refuse to Revoke the Deportation Order”. The Secretary of State also noted that during his appeal before the Tribunal he had failed to mention that he was in a relationship with a British citizen.
On 30 June 2008, the Immigration Rules were amended.
The applicant again appealed to the Tribunal which dismissed his appeal in a decision promulgated on 18 August 2008. In relation to Article 3, the Tribunal relied on the findings of the Tribunal of the 21 February 2007, as no fresh evidence had been placed before it and there was no evidence before it that the country situation of the Democratic Republic of Congo had changed. Additionally, the Tribunal found no evidence to suggest that the applicant would be at risk because he was being deported on account of a criminal record in the United Kingdom. Furthermore, the Tribunal did not accept that, even if, as alleged, the applicant’s father’s friend had been killed two weeks before the hearing, it would materially affect the applicant’s case as there was no evidence to suggest how he had been killed or by whom.
In relation to Article 8, the Tribunal accepted that the applicant had an established family life with his partner and her three children in the United Kingdom, and that he had established a private life as he had lived in the United Kingdom for eighteen years. However, it did not accept that he had an established family life with his daughter J, as no credible evidence of contact between the applicant and J had been placed before it. It found that his removal would be wholly proportionate, bearing in mind his lengthy criminal record, the fact that there was no evidence before it to suggest that the applicant was no longer a risk to the public, and the fact that his partner should have known that the applicant was not a British national and was liable for deportation when their relationship began.
An application for reconsideration of that decision was refused by a Senior Immigration Judge on 22 August 2008, as he considered the grounds to be no more than a disagreement with findings which the Tribunal were entitled to make, and could see no error of law.
On 3 October 2008, a Senior Immigration Judge refused to make an order setting aside the decision of the 22 August 2008. On 11 December 2008, Mr Justice Foskett in the High Court dismissed the applicant’s renewed application for reconsideration, noting that the matters raised amounted to nothing more than a disagreement with the merits of the decision and that he could detect no error of law.
The applicant’s two brothers died on separate dates in 2008.
On 9 July 2009, the applicant was due to be deported from the United Kingdom, though it appears that removal directions were cancelled and that the applicant remains in the United Kingdom.
Relevant domestic law and practice
1. Primary legislation
Section 5(3)(a) of the Immigration 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 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision inter alia on the grounds 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.
Secondary Legislation - the Immigration Rules
The Rules relating to the making of a deportation order are contained in Part 13 of the Immigration Rules.
The previous version of paragraph 364 of the Immigration Rules (in force until 20 July 2006) provided that, subject to paragraph 380, in considering whether deportation was the right course on the merits, the public interest had to be balanced against any compassionate circumstances of the case, taking into account all relevant factors including as follows:
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person’s behalf.”
The amended version of paragraph 364 (in force since 20 July 2006) provides that, subject to paragraph 380, where a person is liable to deportation the presumption will be that the public interest requires deportation, and that it would only be in exceptional circumstances that the public interest in deportation would be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport.
Paragraph 380 of the Immigration Rules referred to in both versions of paragraph 364 provides as follows:
“A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom’s obligations under the Convention and Protocol relating to the Status of Refugees or the Human Rights Convention [the European Convention on Human Rights].”
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 Directorates Instructions (“IDIs”).
The previous version of paragraph 391 of the Immigration Rules (in force until 29 June 2008) provided as follows:
“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. 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 the court which made the recommendation 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. However, save in the most exceptional circumstances, the Secretary of State will not revoke the order unless the person has been absent from the United Kingdom for a period of at least three years since it was made.”
The amended version of paragraph 391 (in force since 30 June 2008) provides as follows:
“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.”
The applicant complains under Article 3 of the Convention that he faces a real risk of ill-treatment if deported from the United Kingdom to the Democratic Republic of Congo. The applicant also complains under Article 8 of the Convention that his deportation from the United Kingdom to the Democratic Republic of Congo will violate his right to respect for his private and/or his family life. Finally, the applicant complains under Article 7 that the cumulative effect of recent changes in the Immigration Rules have imposed a heavier penalty on the applicant than the one that was applicable at the time that he committed his index offences.
QUESTION TO THE PARTIES
Would the applicant’s deportation to the Democratic Republic of Congo violate his right to respect for his private and/or his family life contrary to Article 8 of the Convention (Maslov v. Austria [GC], no. 1638/03, 23 June 2008)?