against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 6 October 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 27 June 2007,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
The applicant, A. B. S., is a Nigerian national who was born in Nigeria and currently lives in Nigeria. The United Kingdom Government (“the Government”) are represented by their Agent, Ms E. Willmott of the Foreign and Commonwealth Office.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was resident in the United Kingdom between 1977 and 1981. On 12 April 1994 the applicant returned to the United Kingdom, having been granted six months’ leave to enter as a visitor. In December 1994 he married a British citizen and on 23 January 1995 he applied for leave to remain on the basis of that marriage. The application was refused on 29 May 1996. The applicant appealed against this decision and on 1 February 1999 his appeal was allowed. On 4 April 1999 the applicant was granted leave to remain until 20 May 2000. On 19 May 2000 the applicant was granted indefinite leave to remain as the spouse of a British citizen.
The applicant and his wife had three children together, who were born in 1997, 1999 and 2001.
On 5 December 2002 the applicant was arrested on re-entry into the United Kingdom at London City Airport in possession of 4.5 kilograms of cocaine with a street value of GBP 240,000. On 21 February 2003 the applicant was convicted of fraudulent evasion of the prohibition on the importation of these drugs and was sentenced to eight years’ imprisonment.
For the first six months the applicant’s children visited him in prison. These visits ended in the autumn of 2003 as the applicant’s relationship with his wife broke down amid allegations of domestic violence. In 2004 the applicant’s wife started divorce proceedings and the divorce was finalised in 2005.
On 30 May 2006 the applicant was notified of the Secretary of State’s decision to make a deportation order in his case.
In May 2006 the applicant re-established contact with his children.
On 22 June 2006 the applicant’s children were removed from their mother’s care following a disclosure to their school that their mother had used physical chastisement and inappropriate punishment to provide boundaries. On 23 June 2006 an interim care order was granted in respect of the three children. On 29 June 2006 a further interim care order was made in relation to the eldest child (who is now with a foster carer) and interim supervision orders were granted for the two youngest (who currently reside with their mother). The applicant did not make any application for contact during the care proceedings. He stated, however, that he would support his ex-wife as a carer for the children if he remained in detention. The Local Authority took the view that the applicant had shown his love for the children and therefore it would be in the children’s best interests to continue to have some meaningful contact with him.
The applicant appealed against the decision to make a deportation order on the grounds first, that it interfered with his right to respect for his family life, and secondly, that if he were returned to Nigeria he would be liable to conviction under Nigerian domestic law and the prison conditions there would violate his rights under Article 3 of the Convention.
The relevant provision was said to be contained in section 22 of the National Drug Law Enforcement Agency Act 1991 (“NDLEA”) and states:
“(2) Any Nigerian citizen found guilty in any foreign county of an offence involving narcotic drugs or psychotropic substances and who thereby brings the name of Nigeria into disrepute shall be guilty of an offence under this sub-section.
(3) Any person convicted of an offence under subsection (1) or (2) of this section shall be liable to imprisonment for a term of five years without an option of a fine and his assets and properties shall be liable to forfeiture as provided under the Act”.
On 9 August 2008 the Asylum and Immigration Tribunal dismissed the applicant’s appeal. The Immigration Judge did not accept that prison conditions in Nigeria would reach the minimum threshold required for Article 3 to be breached and she was “by no means satisfied that he [the applicant] had shown he would be imprisoned, or if so for any substantial period of time”.
In relation to the Article 8 claim, the Immigration Judge concluded that there was no family life between the applicant and his children and in any event his ties to the United Kingdom were not strong enough to outweigh the public interest.
On 25 August 2006 a Senior Immigration Judge ordered reconsideration of the Immigration Judge’s decision. On 25 April 2007 a second Immigration Judge dismissed the appeal. The second Immigration Judge found that the applicant would not necessarily be found guilty of an offence under Nigerian law. Even if he were, the sentence of five years was not mandatory and in any case the Immigration Judge did not accept that conditions in a Nigerian jail would amount to a violation of Article 3 of the Convention.
The Immigration Judge also found that whilst the first Immigration Judge had erred in finding that there was no existing family life between the applicant and his children, the applicant had not seen his children or tried to see them for many years and therefore this error could not have affected the decision to dismiss the appeal.
The applicant applied out of time for an order for reconsideration of this decision. On 3 October 2007 a Senior Immigration Judge held that there was no material error of law and that the original determination should stand.
The applicant complained under Article 3 of the Convention that if he were returned to Nigeria he could face a five year prison term under Nigerian domestic law which would expose him to treatment contrary to Article 3 of the Convention.
The applicant further complained under Article 8 of the Convention that his deportation would violate his right to respect for his family life.
The applicant was deported to Nigeria on 25 May 2008. He has not provided the Court with a contact address in Nigeria and the only address the Court has in the United Kingdom is that of his ex-wife.
By letter dated 24 October 2008 the Government’s observations were sent to the applicant, c/o his ex-wife. The applicant was requested to submit any observations together with any claims for just satisfaction in reply by 5 December 2008.
The applicant did not reply to this correspondence. In view of previous allegations of domestic violence between the applicant and his ex-wife, and the ongoing care proceedings in respect of the children, the Court did not consider it appropriate to continue to correspond with the applicant using his ex-wife’s address. It therefore no longer has any address at which the applicant can be contacted. The applicant, for his part, has made no attempt to contact the Court from Nigeria and no correspondence has been received from him since 17 May 2008.
The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue his application within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Fatoş Aracı Lech Garlicki
Deputy Registrar President