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    European Court of Human Rights

    You are here: BAILII >> Databases >> European Court of Human Rights >> Mamajang JALLOW v the United Kingdom - 53573/09 [2010] ECHR 648 (23 April 2010)
    URL: http://www.bailii.org/eu/cases/ECHR/2010/648.html
    Cite as: [2010] ECHR 648
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    23 April 2010




    FOURTH SECTION

    Application no. 53573/09
    by Mamajang JALLOW
    against the United Kingdom
    lodged on 20 September 2009


    STATEMENT OF FACTS

    THE FACTS

  1. The first applicant, Mr Mamajang Jallow, is a Gambian national who was born in 1980 and lives in Gatwick. He is represented before the Court by Ms H. Weber of Refugee and Migrant Justice, a lawyer practising in London.

    2. A.  The circumstances of the case

  2. The facts of the case, as submitted by the applicants, may be summarised as follows.

  3. The first applicant met the second applicant, a British citizen, while she was on holiday in Gambia. They married in Banjul on 23 March 2006. On 16 May 2006 the first applicant obtained a settlement visa permitting him to enter and remain in the United Kingdom as the spouse of a British citizen until 16 May 2008.

  4. On 15 October 2007 the second applicant gave birth to a daughter, the third applicant, who is a British citizen.

  5. On 17 March 2008 the first applicant was convicted of being in possession of cannabis. He was fined GBP 75 and was ordered to pay GBP 60 costs. On 3 April 2008 he was arrested for the possession of cannabis with the intent to supply. While he was in custody, the first applicant submitted an application for settlement as the spouse of a person present and settled in the United Kingdom. On 7 July 2008 the first applicant was convicted at the Portsmouth Crown Court on a guilty plea of possession of a Class C drug with intent to supply. Following his conviction, the application for settlement was refused by the Secretary of State for the Home Department.

  6. The pre-sentence report indicated that the first applicant had started selling drugs in January 2008 and he did so three to four times per week. The report further indicated that the first applicant presented a low to medium risk of reconviction and a low risk of causing serious harm to others. In sentencing the first applicant the judge noted that he had been dealing on a reasonably substantial commercial basis as the street value of the drugs was approximately GBP 6,400. However, the judge took account of the first applicant's guilty plea and sentenced him to eighteen months' imprisonment.

  7. The first applicant did not appeal against conviction or sentence.

  8. On 30 September 2008 the first applicant made representations to the Secretary of State for the Home Department. Those representations were rejected on 17 December 2008.

  9. On 17 December 2008 the first applicant was served with a deportation order.

  10. Following allegations of the first applicant's infidelity, the second applicant wrote to the Home Office on 29 December 2008 indicating her intention to initiate divorce proceedings and asking that the applicant be deported. However, she subsequently reconciled with the first applicant and on 13 February 2009 her representatives wrote to the UK Border Agency to confirm that she wished to continue with the relationship and that the previous letter has been written as a result of a misunderstanding. The second applicant also wrote to the Secretary of State to ask that the first applicant not be deported.

  11. The first applicant was due to be deported on 15 February 2009. At the airport he made representations to the Immigration Officer which resulted in the deportation being deferred. The fresh representations were refused in a letter dated 4 March 2009. The Secretary of State also declined to revoke the deportation order.

  12. The first applicant appealed against this decision. In particular, he submitted that as he and his family in Gambia were members of the Fula tribe, the third applicant would not be able to live in Gambia or visit him there as there was a risk that she would be “stolen away” and circumcised. He further submitted that it would be difficult for him and the second applicant to obtain work in Gambia and they had no family members who could support them there. The Asylum and Immigration Tribunal accepted that the first applicant had established family life in the United Kingdom, although it noted that he had lived with the second and third applicants for a relatively short time. It also found that the third applicant would be at real risk of being subjected to FGM in Gambia if she lived there permanently or if she went there on holiday. Although the Tribunal made this finding based on the lower standard of proof, it noted that it would have made an identical finding if a balance of probabilities test had been applied. Consequently, the Tribunal accepted that the first applicant's deportation would extinguish his family life. Finally, the Tribunal also found that it was unlikely that the first and second applicants would find worthwhile employment in Gambia. Nevertheless, the Tribunal held that the first applicant's deportation would be proportionate in view of the gravity of the offence of which he was convicted. Accordingly, it dismissed his appeal.

  13. On 1 June 2009 a Senior Immigration Judge refused to grant an order for reconsideration. On 5 August 2009 the High Court also dismissed the application for reconsideration, noting that the Tribunal's consideration of the difficult balancing exercise had been patently thorough and took account of all relevant factors with particular care, on the clear basis that the first applicant's deportation would extinguish his family life with the second and third applicant.

    14. B.  Relevant domestic law and practice

  14. 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. 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.

  15. 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.

  16. 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:

    17. “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.”

    COMPLAINT

  17. The applicants complain under Article 8 of the Convention that the decision to deport the first applicant constituted an unjustified interference with the right to respect for their family life.



    18. QUESTION


    Would the first applicant's deportation violate his right to respect for his family and private life under Article 8 of the Convention?


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