European Court of Human Rights

1 July 2010

FOURTH SECTION

Application no. 14535/10
by Hassan Ahmed ABDI IBRAHIM
against the United Kingdom
lodged on 8 March 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Hassan Ahmed Abdi Ibrahim, is a Somali national who was born in 1982 and lives in West Drayton. He is represented before the Court by Wilson & Co., a firm of solicitors 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 arrived in the United Kingdom in 1989, at the age of seven, with his father, step-mother, uncle and siblings, having spent two years in a refugee camp in Ethiopia immediately prior to his arrival. He was, together with his family, granted refugee status on 6 January 1990 and indefinite leave to remain on 11 July 1994.

On 14 November 1995, the applicant made an allegation of child abuse against his father, claiming that since the applicant was five years old his father had regularly beaten him and deprived him of food. A medical examination conducted on 12 April 1996 indicated that the applicant had evidence of old injuries consistent with his account of abuse and was extremely thin. The applicant left home at the age of fourteen and was accommodated in a number of foster homes and residential care homes. He subsequently became homeless.

The applicant began using cannabis when he was around eleven years old, and, by the age of fifteen, was addicted to crack cocaine. He committed a number of criminal offences in order to finance his addiction and accumulated a number of convictions whilst still a minor. After reaching the age of 18 he amassed 21 convictions for a number of offences including theft, common assault, possession of drugs and robbery. He was convicted on 5 February 2002 of robbery and possession of cannabis, for which he received a combined sentence of four years and six months. Shortly after his release, he was again convicted of robbery on 15 July 2007 and sentenced to four years' imprisonment.

In the light of this conviction, the Secretary of State made a decision to deport the applicant to Somalia. However, this decision was subsequently withdrawn as the applicant's refugee status had not been considered. It was decided to revoke the applicant's refugee status on 9 April 2009, on the basis that the circumstances leading to the grant of asylum no longer existed. A further decision to deport him was taken on 17 April 2009. The applicant appealed against both decisions and his appeal was heard by the Asylum and Immigration Tribunal on 10 August 2009..

The Tribunal took note of the applicant's claims to have been drug-free since 2007, and to have been let down by social services in failing to investigate the abuse he had suffered at the hands of his father and in failing to provide the applicant with adequate support since then. However, the Tribunal also noted that unauthorised items, including burnt foil, had been found in the applicant's cell during his most recent incarceration and that only the failure to investigate abuse allegations had been acknowledged by social services. The applicant had, in fact, received a large amount of support from social services and had on occasion abused this help by running away from care homes or failing to attend appointments. According to a forensic psychiatric report on the applicant, he was at a moderate risk of violent recidivism and the risk was greater if he returned to substance abuse or was again subjected to negative peer influences, as he had been in the past. It appeared to the Tribunal that, if released, the applicant was likely to return to the same area where he had previously committed crimes; that he had no employment prospects; and that he had previously failed to comply with supervision in the community. Given these facts and the seriousness of his offence, particularly when combined with his “appalling record” of previous convictions, the Tribunal concluded that the applicant was a danger to the community, whose deportation was appropriate.

The revocation of the applicant's refugee status was also appropriate, given that there was evidence that the applicant's father had been born in Hargeysa in Somaliland, and the applicant could therefore be reasonably assumed to originate from the region as well. He was also of the Isaaq clan, which was the majority clan in Somaliland, and would be able therefore to seek clan protection. The objective evidence indicated that the situation in Somaliland was reasonably stable. The grant of asylum to the applicant was no longer necessary.

There was an expert report before the Tribunal, which stated that, as a young Westernised returnee, who was not a practising Muslim and had a criminal record and a history of drug abuse, the applicant, who no longer had any family or contacts in Somaliland, would be a social outcast and vulnerable to verbal and physical harassment and abuse. He would also be unable to obtain the basic necessities for survival such as accommodation, employment and healthcare since he did not speak the language and had no family support or knowledge of the culture. The Tribunal did not refer to the report expressly in its findings, but concluded that there was no evidence that the applicant would face breaches to his Article 3 rights if returned to Somaliland. He would be able to obtain protection from his clan.

The applicant sought reconsideration of the Tribunal's decision, which was refused by a Senior Immigration Judge on 9 September 2009. The Senior Immigration found that it could not be said that the decision that the applicant had committed a particularly serious crime and was a danger to the community was perverse; and that the Tribunal had reached a conclusion to which it was entitled to come regarding the proportionality of the applicant's deportation.

Reconsideration was also refused by the High Court on 11 January 2010. The High Court found that the Tribunal had been entitled to hold that the applicant's removal to Somaliland would not breach the Refugee Convention and that his deportation would not amount to a disproportionate interference with his Article 8 rights. The Tribunal had plainly had regard to all of the applicant's arguments and there was no realistic possibility that another Tribunal would reach a different conclusion.

B.  Relevant domestic and international law

1. Domestic Legislation

Section 3(5)(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.

Section 32 of the United Kingdom Borders Act 2007 provides that the Secretary of State must make a deportation order in respect of a “foreign criminal,” namely a person who is not a British citizen; who is convicted of an offence; and who is sentenced to a period of imprisonment of 12 months or more. Section 33(2) of the same Act provides an exception to automatic deportation in circumstances where it would breach the foreign criminal's rights under the Convention or the United Kingdom's obligations under the Refugee Convention.

Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against a decision to make a deportation order, inter alia, on the grounds that the decision is incompatible with the Convention.

2. Relevant Instrument of the Council of Europe

Council of Europe Recommendation Rec (2000) 15 Concerning the Security of Long-Term Migrants, 13 September 2000, provides as follows:

“4. As regards the protection against expulsion

a. Any decision on expulsion of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights' constant case-law, of the following criteria:

- the personal behaviour of the immigrant;

- the duration of residence;

- existing links of the immigrant and his or her family to his or her country of origin.

b. In application of the principle of proportionality as stated in paragraph 4a, member States should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long-term immigrant. More particularly, member states may provide that a long-term immigrant should not be expelled:

- after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years' imprisonment without suspension;

- after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years of imprisonment without suspension;

After twenty years of residence, a long-term immigrant should no longer be expellable.

c. Long-term immigrants born on the territory of the member state or admitted to the member state before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of eighteen.

Long-term immigrants who are minors may in principle not be expelled.

d. In any case, each member state should have the option to provide in its internal law that a long-term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety.

COMPLAINTS

The applicant complains that his deportation to Somaliland would breach Articles 3 and 8 of the Convention.

QUESTIONS TO THE PARTIES