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OMOJUDI v. THE UNITED KINGDOM - 1820/08 [2009] ECHR 1942 (24 November 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1942.html
Cite as:
51 EHRR 10,
(2010) 51 EHRR 10,
[2010] INLR 293,
[2009] ECHR 1942
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FOURTH
SECTION
CASE OF
OMOJUDI v. THE UNITED KINGDOM
(Application
no. 1820/08)
JUDGMENT
STRASBOURG
24
November 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Omojudi v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech
Garlicki,
President,
Nicolas
Bratza,
Giovanni
Bonello,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 3 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 1820/08) against the
United Kingdom of Great Britain and Northern Ireland lodged with
the Court under Article 34 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (“the Convention”)
by a Nigerian national, Mr Steven O. Omojudi (“the applicant”),
on 9 January 2008.
The
applicant was represented by Ms N. Mole of the Aire Centre, a lawyer
practising in London. The United Kingdom Government
(“the Government”) were represented by their Agent,
Ms H. Upton of the Foreign and Commonwealth Office.
On
25 November 2008 the President of the Chamber decided to give notice
of the application to the Government of the United Kingdom. It was
also decided to judge on the admissibility and merits of the
application at the same time (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant, Mr Steven O. Omojudi, is a Nigerian national
who was born in 1960. He currently lives in Nigeria.
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, when he was
twenty-two years old, 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 two
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 and his wife applied for leave to
remain under an overstayer's regularisation scheme. On 18 April 2005
they both 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. He 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 described the offence as “a
gross sexual intrusion into the private life of a woman by someone in
a position of trust”. He reduced the sentence, however, to
lessen the impact on the applicant's family and he did not recommend
him 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 permission to apply for judicial review, which was refused on
15 August 2007 and again 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 with 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 permission to apply
for judicial review. Permission was refused and on 25 April 2008 the
appeal against this decision 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 from
the Probation Service, initially on a weekly basis and subsequently
at regular intervals. The report, however, was only disclosed on 25
April 2008.
II. 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant submitted that his deportation to Nigeria violated his
right to respect for his family and private life under Article 8 of
the Convention. Article 8 provides as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
The
applicant submitted that prior to his deportation he enjoyed family
life within the meaning of Article 8 of the Convention with his
spouse, his three children and with his grandchild. He had co-habited
with his spouse since 1980 and they have been married for twenty-two
years. Their three children were born in the United Kingdom and have
always lived in the family home. Even though the eldest child was an
adult when the applicant was deported, he was not an independent
person who had started his own family life. Rather, he was a student
who still lived in the family home and who depended financially and
emotionally on his parents. His daughter lived with him and prior to
the applicant's deportation he relied on both of his parents to help
him raise her while he pursued his studies. Following his deportation
he relied solely on his mother.
The
applicant submitted that his deportation interfered with his right to
respect for his family life because his family was split up without
any prospect of being reunited in the near future. Relocation was not
an option for the family because his teenage children were British
nationals who were being educated in the United Kingdom. His eldest
son had a child of his own in the United Kingdom. The applicant's
wife could not relocate with the applicant because she had to stay to
take care of the children and to help raise her grandchild. The only
communication which the applicant had had with his family following
his deportation was via telephone and written communication.
The
applicant accepted that the interference with his right to respect
for his family and private life was in accordance with the law and in
pursuit of a legitimate aim. He argued, however, that it was not
necessary in a democratic society. He relied on the official risk
assessment report prepared by the Probation Service, which indicated
that he posed a low risk of reoffending.
The
applicant further relied on the judgment of the Grand Chamber in Üner
v. the Netherlands [GC], no. 46410/99, ECHR 2006 XII. With
regard to the nature and seriousness of the offence, he submitted
that the only relevant offence was the one which the deportation
order specifically held as the basis for the deportation, namely the
sexual assault committed on 1 November 2005. As the Secretary of
State for the Home Department was fully apprised of the applicant's
previous offending and immigration history when he exercised his
discretion to grant him Indefinite Leave to Remain in 2005, he could
not now rely on his earlier offences in order to justify the decision
to deport him. If considered in isolation, the applicant submitted
that the sexual assault was not sufficiently serious to warrant
deportation. In particular, he submitted that the sentence imposed
for this offence, being less than two years, would not have resulted
in a decision to deport under the policies in place at the time. This
was reflected in the fact that the sentencing judge did not recommend
deportation.
The
applicant indicated that prior to his deportation he had lived in the
United Kingdom for twenty six consecutive years. He had not returned
to Nigeria during that period, except for a three-week vacation in
the summer of 2005. His residence in the United Kingdom was lawful
between 1982 and 1986, and between 2005 and 2008. Between 1986 and
2000 he was attempting to regularise his stay and between 2000 and
2005 he was waiting for the outcome of his application under the
Regularisation Scheme for Overstayers. While the applicant accepted
that he had spent his formative years in Nigeria, he submitted that
his ties to his home country were significantly weakened and by the
date of his deportation he had vastly stronger ties to the United
Kingdom.
Three
years passed between the applicant's last offence and his
deportation. The applicant submitted that during that period he
served his sentence and complied with the conditions of his licence.
He engaged in offence-focussed work and his conduct was good, both in
prison and upon release. He further indicated that between offences
lengthy periods passed without transgression. In this respect the
case could be distinguished from that of Joseph
Grant v. the United Kingdom, no.
10606/07, 8 January 2009, where the applicant had no
significant period of residence in the United Kingdom during
which he did not offend.
The
applicant also contended that his wife would experience serious
difficulties were she to follow him to Nigeria. She left Nigeria in
1983 and had been living in the United Kingdom ever since. Apart from
her elderly mother she had no family or social ties in Nigeria.
Relocation would separate her from her eldest child and from her
grandchild and cause her significant distress. The teenage children
would also face serious difficulties if they were to relocate to
Nigeria. They had no links with Nigeria and could no longer be
described as being “of an adaptable age”. Their personal
and professional development would be severely hampered if they were
to move to Nigeria and thus such a move could not be described as
being “in their best interests”. Moreover, Nigeria was
not a Member State of the Council of Europe and the living conditions
there were unlike those in which the applicant's children had been
brought up.
The
Government accepted that the applicant and his wife had a genuine,
long-standing marriage and that family life existed between them.
They further accepted that family life existed between the applicant
and his two younger children, although they pointed out that they
would come of age in October 2009 and September 2010 respectively.
They contended, however, that no family life existed between the
applicant and his eldest son as there was no evidence of dependency
involving more than the normal emotional ties of father and adult
son.
The
Government submitted that the applicant's deportation was a measure
taken in accordance with the law and that any resulting interference
with his right to respect for his family life under Article 8(1) of
the Convention was proportionate in the interests of the prevention
of crime.
In
relation to the nature and seriousness of the applicant's offence,
the Government submitted that it was appropriate to have regard to
the applicant's background of offending as well as to the offence
which directly gave rise to the decision to make a deportation order.
The applicant had been convicted of nine criminal offences during his
time in the United Kingdom, including a number of offences of
deception and dishonesty, which demonstrated a persistent disregard
for United Kingdom law. The most serious offence warranted a sentence
of four years' imprisonment and was described by the Court of Appeal
as a significant conspiracy to defraud London clearing banks of in
excess of GBP 60,000.
In
any case, the Government submitted that the offence committed by the
applicant on 1 November 2005 was of itself a serious offence,
warranting his registration as a sex offender for ten years in
addition to a fifteen month term of imprisonment. Although the
probation service recognised that the applicant's overall risk of
re-conviction was low, the Government observed that he was assessed
as presenting a medium risk of serious harm to known adults in the
community. They therefore contended that they were entitled to regard
a sexual offence involving the abuse of a position of trust as a
serious matter and attach considerable weight to that factor.
Although
the Government recognised that the applicant had spent over twenty
four years in the United Kingdom at the date of the decision to
deport him, they submitted that he was an adult when he arrived and
during his stay he served two periods of imprisonment. Moreover, for
the majority of his stay his immigration status was precarious as he
had been refused extensions to his leave as a student, he was refused
asylum and he had been the subject of deportation action. Indeed, the
offence which prompted the decision to make a deportation order was
committed only six months after he was eventually granted Indefinite
Leave to Remain.
The
Government further submitted that just over one year had elapsed from
the commission of the sexual assault and the decision to make a
deportation order. During that period the applicant was convicted of
a further offence (failing to provide a specimen for analysis) and
was disqualified from driving for three years.
Finally,
the Government contended that the applicant had put forward no
evidence to demonstrate that he and his wife had developed strong
social and/or cultural ties with the United Kingdom. Although it was
accepted that the applicant was employed by a housing association at
the time he committed the sexual assault, there was no other evidence
to suggest that he or his wife were ever employed in the United
Kingdom. The applicant's wife was a Nigerian citizen who had spent
her formative years in Nigeria. Her mother still lived there and she
had clearly maintained some ties with that country. The Government
further contended that while the applicant's two younger children
would face a degree of hardship in relocating to Nigeria, they were
intelligent young people with no particular disabilities or needs and
with the support of their parents they would be able to adjust to
life in Nigeria. There was no evidence to suggest that it would be
“impossible or exceptionally difficult” for the
applicant's wife and younger children to relocate with him (see Onur
v. the United Kingdom, no. 27319/07,
§ 60, 17 February 2009). Alternatively, should the
applicant's family decide to remain in the United Kingdom, they could
maintain contact with the applicant by letter or telephone and visit
him for holidays in Nigeria.
The Court's assessment
(a) Was there an interference with the applicant's
right to respect for his family and private life?
The
Government have accepted that the applicant's deportation interfered
with his family life as reflected in his relationship with his wife
and two youngest children. The Court endorses this view. Having
regard to the concession made by the Government as to the existence
of family life, it is unnecessary to decide whether the close bond
which the applicant undoubtedly had with his eldest son and his
granddaughter was itself sufficient to give rise to family life
between them.
The
Court further recalls that, as Article 8 also protects the right to
establish and develop relationships with other human beings and the
outside world and can sometimes embrace aspects of an individual's
social identity, it must be accepted that the totality of social ties
between settled migrants and the community in which they are living
constitutes part of the concept of “private life” within
the meaning of Article 8. Regardless of the existence or otherwise of
a “family life”, the expulsion of a settled migrant
therefore constitutes an interference with his or her right to
respect for private life. It will depend on the circumstances of the
particular case whether it is appropriate for the Court to focus on
the “family life” rather than the “private life”
aspect (see Maslov v. Austria
[GC], no. 1638/03, ECHR 2008 § 63).
In the instant case, the Court finds that the measures
complained of interfered with both the applicant's “private
life” and his “family life”. Such interference will
be in breach of Article 8 of the Convention unless it can be
justified under paragraph 2 of Article 8 as being “in
accordance with the law”, as pursuing one or more of the
legitimate aims listed therein, and as being “necessary in a
democratic society” in order to achieve the aim or aims
concerned.
(b) “In accordance with the law”
It
is not in dispute that the impugned measure had a basis in domestic
law, namely section 5(3)(a) of the Immigration Act 1971 (as amended
by the Immigration and Asylum Act 1999).
(c) Legitimate aim
It
is also not in dispute that the interference served a legitimate aim,
namely “the prevention of disorder and crime”.
(d) “Necessary in a democratic society”
The
principal issue to be determined is whether the interference was
“necessary in a democratic society”. The relevant
criteria that the Court uses to assess whether an expulsion measure
is necessary in a democratic society have recently been
summarised as follows (see Üner v. the Netherlands
[GC], no. 46410/99, §§ 57 - 58, ECHR 2006 ...):
“57. Even if Article 8 of the
Convention does not therefore contain an absolute right for any
category of alien not to be expelled, the Court's case law amply
demonstrates that there are circumstances where the expulsion of an
alien will give rise to a violation of that provision (see, for
example, the judgments in Moustaquim v. Belgium,
Beldjoudi v. France and Boultif v. Switzerland, [cited
above]; see also Amrollahi v. Denmark, no. 56811/00, 11
July 2002; Yılmaz v. Germany, no. 52853/99, 17 April
2003; and Keles v. Germany, 32231/02, 27 October 2005). In the
case of Boultif the Court elaborated the relevant criteria
which it would use in order to assess whether an expulsion measure
was necessary in a democratic society and proportionate to the
legitimate aim pursued. These criteria, as reproduced in paragraph 40
of the Chamber judgment in the present case, are the following:
- the nature and seriousness of the offence
committed by the applicant;
- the length of the applicant's stay in the
country from which he or she is to be expelled;
- the time elapsed since the offence was
committed and the applicant's conduct during that period;
- the nationalities of the various persons
concerned;
- the applicant's family situation, such as
the length of the marriage, and other factors expressing the
effectiveness of a couple's family life;
- whether the spouse knew about the offence
at the time when he or she entered into a family relationship;
- whether there are children of the marriage,
and if so, their age; and
- the seriousness of the difficulties which
the spouse is likely to encounter in the country to which the
applicant is to be expelled.
58. The Court would wish to make explicit two
criteria which may already be implicit in those identified in the
Boultif judgment:
- the best interests and well-being of the
children, in particular the seriousness of the difficulties which any
children of the applicant are likely to encounter in the country to
which the applicant is to be expelled; and
- the solidity of social, cultural and family
ties with the host country and with the country of destination.”
The Court observes that the applicant's most serious offences were
committed in 1989 and 2005. During the sixteen years between these
offences, the applicant largely stayed out of trouble (with the
exception of a number of driving offences, none of which resulted in
a prison sentence). The present case can therefore be distinguished
from that of the previously cited case Joseph
Grant v. the United Kingdom in a number of
respects. First, the applicant in Grant was a habitual
offender and there was no prolonged period during which he was out of
prison and did not offend. This is clearly not the case for the
present applicant. Secondly, Mr Grant committed all of his offences
after he had been granted Indefinite Leave to Remain in the United
Kingdom. Moreover, deportation was considered at a relatively early
stage and while the Secretary of State for the Home Department
decided not to deport Mr Grant, it warned him that if in future he
came to the adverse attention of the authorities, deportation would
again be considered. In the present case the applicant was granted
Indefinite Leave to Remain following his conviction for relatively
serious crimes involving deception and dishonesty. The Court attaches
considerable weight to the fact that the Secretary of State for the
Home Department, who was fully aware of his offending history,
granted the applicant Indefinite Leave to Remain in the United
Kingdom in 2005. Thirdly, the vast majority of the offences committed
by Mr Grant were related to his drug use. There was therefore a
history and pattern of offending that was unlikely to end until the
underlying problem was addressed. In the present case, however, the
applicant's offences were of a completely different nature and there
was no indication that they were the result of any “underlying
problem”. In particular, there is no evidence of any
pattern of sexual offending.
Therefore, in the circumstances of the present case, the Court finds
that for the purposes of assessing whether the interference with the
applicant's family and private life was necessary in a democratic
society, the only relevant offences are those committed after the
applicant was granted Indefinite Leave to Remain.
The
Court reiterates that sexual assault is undoubtedly a serious
offence, particularly where it also involves a breach of a position
of trust. The Court observes, however, that the maximum available
sentence for sexual assault was ten years' imprisonment. It is
therefore clear that even taking into account the aggravating factor
of a breach of a position of trust, the applicant's offence was not
at the most serious end of the spectrum of sexual offences.
The Court is mindful of the fact that the applicant has lived in the
United Kingdom since 1982 and his wife has lived there since 1983.
Although they both spent the formative years of their lives in
Nigeria, their ties there have significantly weakened and they now
have much stronger ties to the United Kingdom. While their residence
in the United Kingdom was not always lawful, over the years they made
numerous attempts to regularise their position and they were
eventually granted Indefinite Leave to Remain in 2005. Their family
life began in the United Kingdom before the applicant committed his
first criminal offence and at a time when the applicant and his wife
had leave to remain. Their children were born in the United Kingdom
and are British citizens. Moreover, all three children have always
lived in the family home and the family continued to live together as
one unit until the applicant's deportation to Nigeria. The
applicant's oldest son now has a daughter of his own and prior to his
deportation the applicant and his wife were helping him to raise her
while he pursued his studies.
The
Court attaches considerable weight to the solidity of the applicant's
family ties in the United Kingdom and the difficulties that his
family would face were they to return to Nigeria. The Court accepts
that the applicant's wife was also an adult when she left Nigeria and
it is therefore likely that she would be able to re-adjust to life
there if she were to return to live with the applicant. She has,
however, lived in the United Kingdom for twenty-six years and her
ties to the United Kingdom are strong. Her two youngest children were
born in the United Kingdom and have lived there their whole lives.
They are not of an adaptable age and would likely encounter
significant difficulties if they were to relocate to Nigeria. It
would be virtually impossible for the oldest child to relocate to
Nigeria as he has a young daughter who was born in the United
Kingdom. Consequently, the applicant's wife has chosen to remain in
the United Kingdom with her children and granddaughter. The
applicant's family can, of course, continue to contact him by letter
or telephone, and they may also visit him in Nigeria from time to
time, but the disruption to their family life should not be
underestimated. Although the Immigration Rules do not set a specific
period after which revocation would be appropriate, it would appear
that the latest the applicant would be able to apply to have the
deportation order revoked would be ten years after his deportation.
Finally,
the Court turns to the conduct of the applicant following the
commission of the offence on 1 November 2005. The applicant committed
a driving offence during this period, having failed to provide a
specimen for analysis. As a consequence, he was banned from driving
for three years. The remainder of his conduct is difficult to assess
as he spent most of the period from the conviction to his deportation
in detention. His criminal sentence came to an end on 1 June 2007,
after which he remained in immigration detention until he was granted
bail on 25 June 2007. He was detained again on 14 September 2007 and
remained in detention until he was deported on 27 April 2008.
Having
regard to the circumstances of the present case, in particular the
strength of the applicant's family ties to the United Kingdom, his
length of residence, and the difficulty that his youngest children
would face if they were to relocate to Nigeria, the Court finds that
the applicant's deportation was not proportionate to the legitimate
aim pursued.
There
has accordingly been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
The
applicant further submitted 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. Article 34
provides as follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
The Court has examined this
complaint but finds, in the light of all the material in its
possession and in so far as the matters complained of are within its
competence, that it does not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its
Protocols.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The applicant claimed EUR 3,000 in respect of
non-pecuniary damage for the distress, anxiety and frustration caused
by the deportation proceedings, the execution of the deportation
order and the enforced separation from his wife, children and
grandchild from 26 April 2008 onwards. The applicant further
submitted that the Court should ensure that the Government exempted
him from the fees associated with applying for his deportation order
to be revoked, his application for entry clearance to return to the
United Kingdom and the travel costs of his return from Nigeria to the
United Kingdom. He also sought a resettlement allowance of EUR 500.
The Government submitted that the sum sought in
respect of a resettlement allowance was unprecedented before the
Court and had not been quantified in any way. In the circumstances,
the Government invited the Court not to make any award in this
respect.
The
Court considers that the applicant must have suffered distress and
anxiety as a result of his deportation and separation form his
family. Making an assessment on an equitable basis it awards the
applicant EUR 3,000 under the head of non-pecuniary damage
(see Mokrani v. France, no. 52206/99, 15
July 2003; Maslov v. Austria [GC], no. 1638/03, 23 June
2008; and Emre v. Switzerland, no. 42034/04, 22 May 2008)
plus any tax that may be chargeable.
The Court dismissed the applicant's other claims.
B. Costs and expenses
The
applicant claimed GBP 8,782.95 in respect of legal costs and
expenses.
The
Government submitted that this sum was excessive. In particular,
the Government submitted that as legal advice from the Aire Centre
was provided on a pro bono basis, no costs or expenses had
actually been incurred in this regard and thus no award should be
made in respect of that advice. Moreover, the Government submitted
that the total of ninety hours claimed by the applicant's lawyers was
excessive by reference to the legal and factual context of the
application.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 6,000 for the
proceedings before this Court.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the
complaint under Article 8 of the Convention admissible and the
remainder of the application inadmissible;
Holds that
there has been a violation of Article 8 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage and EUR 6,000 (six thousand Euros),
plus any tax that may be chargeable to the applicant, in respect of
costs and expenses, to be converted into British Pounds at the rate
applicable at the date of settlement, plus any tax that may be
chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 24 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
