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URL: http://www.bailii.org/eu/cases/ECHR/2010/359.html
Cite as: [2010] ECHR 359
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9 March 2010
FOURTH SECTION
Application no.
60286/09
by Moshood Abiola BALOGUN
against the United
Kingdom
lodged on 13 November 2009
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Moshood Abiola Balogun, is a Nigerian national who was born in 1986 and lives 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 claims to have arrived in the United Kingdom at the age of three years old. However, there is no official record of his presence until 1994, when he was eight years old. He first came to the notice of the Secretary of State for the Home Department on 21 December 1994, when the family court sought clarification of the applicant’s immigration status, while considering an application for a residence order in respect of the applicant by his aunt.
The applicant’s aunt made an application for indefinite leave to remain in the United Kingdom, on the basis of her long stay, and with the applicant listed as her dependant, on 24 January 2003. While this application was under consideration, a further application for indefinite leave was made on behalf of the applicant by Southwark Social Services. This application stated that the applicant had been thrown out by his aunt on 12 January 2002 and placed in foster care. It was also mentioned that the applicant had claimed that he had been the victim of beatings by his aunt and her boyfriend since the age of three. Indefinite leave to remain was granted to the applicant, outside the immigration rules, on 1 December 2003.
The applicant was convicted on 21 February 2007, at the age of twenty, of two counts of possession of Class A drugs with intent to supply. He pleaded guilty on the basis that he had been coerced into letting his premises be used for the preparation and sale of drugs by a group of people whom he feared because of a previous attack in 2005, in which the applicant had been shot. He was sentenced to three years’ imprisonment, and on 18 October 2007 was notified of the Secretary of State’s intention to deport him. The Secretary of State found that there was no evidence that the applicant had been present in the United Kingdom since the age of three. His aunt had stated that he had been left with her by his mother at the age of five, and the first official record of his presence was when he was eight years old. Even allowing for his long stay in the United Kingdom, only four years had been with valid leave. It was believed that he was in contact with his mother, who remained in Nigeria, and that as he had lived alone since attaining the age of majority, the applicant was independent and capable of adapting to new circumstances. It was not accepted that he had family life in the United Kingdom.
The applicant appealed against the decision to deport him and his appeal was dismissed by the Asylum and Immigration Tribunal on 13 March 2008. The Tribunal noted the applicant’s previous criminal record: he had been convicted of possession of Class A and Class B drugs in February 2004; handling stolen goods in April 2004; and possession of Class A drugs in June 2005.
The Tribunal also noted his claim to be in a relationship of some years’ duration, but observed that he had never mentioned his girlfriend in previous applications to the Home Office, and that he and his girlfriend had given mutually inconsistent evidence at the hearing. It was not therefore accepted that he was in a deep or permanent relationship. He had no contact with the aunt with whom he had previously lived, but had another aunt whom he claimed was a surrogate mother to him. However, the Tribunal found that he could not be as close to this aunt as he had claimed, given that she had not taken him in when he had been thrown out onto the streets, and that it was clear from her evidence at the hearing that she had been unaware of his criminal conviction. The applicant’s relationship to his brother in the United Kingdom was found to have been similarly exaggerated. The Tribunal concluded that the applicant did not have any protected family life in the United Kingdom; with regard to his private life, while it was accepted that he had been in the country since a young age and educated there, as well as gaining some work experience, it was not considered that these ties were sufficiently strong to render his deportation an interference with his private life. It appeared that his mother still lived in Nigeria and, even if contact had been lost, as claimed by the applicant, there was no reason why it could not be re-established. Whilst the applicant would have practical difficulties in relocating to Nigeria, he could re-establish his private life there. The Tribunal took into account the case of Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006 XII, in finding that, on balance between the public interest and that of the applicant, his deportation was proportionate.
A deportation order against the applicant was signed on 14 October 2008. The applicant made an application to have the order revoked on human rights grounds, which was rejected by the Secretary of State on 3 June 2009 on the basis that all matters raised by the applicant had previously been considered by the Asylum and Immigration Tribunal. An application for judicial review of this decision was refused on 30 October 2009. The High Court, in refusing the application, stated that the applicant had no family life in the United Kingdom, and that the interference with his private life was proportionate.
Directions for the applicant’s deportation to Nigeria were set on 12 November 2009 for 19 November 2009, and on 13 November 2009 the applicant sought interim measures from this Court to prevent his deportation. He submitted with his application a report from a specialist psychiatric registrar dated 14 September 2009, which stated that the applicant had attempted suicide on 13 August 2009, after being notified of the refusal of his human rights application by the Secretary of State. He was then held as an in-patient until 7 September 2009. The report also stated that the applicant had previously made a suicide attempt in prison, and that he continued to express feelings of despair throughout his in-patient treatment. He was described as suffering from moderate depression.
Rule 39 was applied by the Acting President on 19 November 2009 for a period of two weeks. The Government were asked comment on the applicant’s mental health history and to state whether any special measures had been put in place to alleviate the risk of suicide prior to and during his proposed removal. By letter dated 2 December 2009, the Government advised that they had not previously been aware of the applicant’s attempted suicide, but had now considered the report of 14 September 2009. As regards the logistics of the applicant’s removal, the Government stated that all appropriate measures to protect the applicant from risk were already in place at the centre at which he was detained. Trained members of staff were aware of the applicant’s situation and the applicant was under constant supervision. As to the risk during removal, the contractor effecting removal would be informed and a suitable escort would be provided, including a medical escort if deemed necessary. The applicant would be escorted up until the point of arrival in Nigeria. The Government also considered that there were sufficient mental health facilities in Nigeria, which would be available to the applicant if needed. The Government therefore invited the Court to lift the interim measures in respect of the applicant.
However, on 8 December 2009, the Acting President decided to prolong until further notice the interim measure under Rule 39.
B. Relevant domestic law
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.
COMPLAINT
The applicant complains under Articles 2, 3, and 8 of the Convention about his deportation to Nigeria.
QUESTIONS TO THE PARTIES