European Court of Human Rights

FOURTH SECTION

Application no. 4289/11
by Rebwar Abdullah ISMAIL and Others
against the United Kingdom
lodged on 11 January 2011

STATEMENT OF FACTS

THE FACTS

The applicants are Iraqi nationals living in the United Kingdom. The first applicant, Mr Abdullah Agha Mahmoud Ismail was born in 1953. The second applicant, Ms Ronak Maman Rasul is his wife and was born in 1963. The third applicant, Mr Rebwar Abdullah Ismail, was born in 1985. The fourth applicant, Master Raber Abdullah Ismail, was born in 1996. The third and fourth applicants are the sons of the first and second applicant. They are represented before the Court by Ms L. Harvey of Alsters Kelley Solicitors, a lawyer practising in Coventry.

A.  The circumstances of the case

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

The applicants left Iraq in 1997 and travelled via Iran and Turkey to Germany where, in 1998, they made an unsuccessful asylum application. In January 1999, the applicants travelled to the United Kingdom and submitted a further asylum application on the basis of a fear of reprisals from the families of the victims of a military campaign in 1991 in which the first applicant had been involved, a tribal dispute and a land dispute.

In November 2003, the applicants’ asylum claims were refused by the Secretary of State on third country grounds and they were administratively removed to Germany. Three or four days later, the applicants returned to the United Kingdom clandestinely but failed to bring themselves to the attention of the British immigration authorities.

On 14 July 2007, the third applicant was arrested on suspicion of the possession of a false passport and, later on the same day, submitted an asylum application. He also claimed that his deportation to Iraq would be in breach of his rights under Article 8 of the Convention because he had been resident and established in the United Kingdom for ten years and had set up two businesses there.

On 13 November 2007, at Sheffield Crown Court, the third applicant was convicted of using a false instrument (a forged British passport) and was sentenced to six months’ imprisonment with a recommendation for deportation. On 27 December 2007, he was served with a notice of intention to deport him to Iraq.

On 6 February 2008, the Secretary of State refused the third applicant’s asylum claim and did not accept that he would be at any risk upon return to Iraq. Furthermore, in light of his criminal conviction, it was considered that any interference in his family and private life caused by his deportation would be proportionate to the public interest of preventing crime and disorder. On 14 February 2008, the Secretary of State decided to make a deportation order against the third applicant considering that his deportation from the United Kingdom was necessary for the prevention of disorder and crime and the protection of health and morals.

On 10 April 2008, the first, second and fourth applicants lodged asylum applications in their own right. Those applications were refused by the Secretary of State on 8 December 2009. In addition, it was not accepted that their removal to Iraq would breach their rights to family life under Article 8 given that the applicants could all return to Iraq together. Furthermore, it was not accepted that their removal to Iraq would breach their rights to private life under Article 8 given that they had established their private life in the knowledge that they were in the United Kingdom illegally and there were no barriers to them establishing private life in Iraq.

On 25 and 26 May 2010, the appeals of all four applicants were heard together by a panel of two Immigration Judges sitting at the Immigration and Asylum Chamber of the First-tier Tribunal (“the Tribunal”). In a determination promulgated on 10 June 2010, their appeals were dismissed. In relation to their asylum claim, the Tribunal was not able to accept that the applicants were credible or reliable witnesses and concluded that their claimed difficulties in Iraq had never occurred and had been, in large measure, fabricated in order to found spurious asylum claims in the United Kingdom. The applicants had therefore failed to demonstrate that their return to Iraq would be in breach of Article 3 of the Convention.

In relation to their claims under Article 8 of the Convention, the Tribunal made the following assessment of the relevant facts. First, they accepted that although the first applicant remained the head of the family, the third applicant had been the family’s breadwinner for the most part since they had arrived in the United Kingdom. Second, they accepted that the second applicant had suffered from breast cancer, had received extensive medical treatment in the United Kingdom for that condition and appeared to be in recovery. Third, they found that the third applicant was guilty of the offence of which he had been convicted and had been dishonest about the same before the Tribunal when he had claimed that he had believed that he had acquired a genuine British passport which conferred British nationality status upon him. Fourth, they found that the third applicant had arrived in the United Kingdom as a minor, had had some education in the United Kingdom, had only one criminal conviction for the possession of a false passport, had had a normal social life in the United Kingdom including relationships with various male and female friends and had been particularly successful with respect to his businesses in the United Kingdom. Fifth, the Tribunal accepted that the fourth applicant had arrived in the United Kingdom as a young child, had no significant memories of life in Iraq, had received all of his education in the United Kingdom and was settled in the United Kingdom where he had made friends and had hobbies. Having regard to the above facts, and given the length of time that they had resided in the United Kingdom, the Tribunal accepted that all four applicants had established both private life and family life with one another in the United Kingdom and that such life would be interfered with were they to be removed to Iraq.

The Tribunal then found that any interference in the applicants’ family and private lives caused by their removal to Iraq would be in pursuit of the legitimate aim of immigration control. With respect to the third applicant only, the Tribunal noted that there would be the additional legitimate aim of the prevention of crime given his conviction for possession of a false passport.

The Tribunal then considered the proportionality of each applicant’s removal from the United Kingdom in turn. In respect of the first and second applicants, it was accepted that their relatively lengthy residence in the United Kingdom weighed in their favour but it was nevertheless considered that their private lives could be transferred to Iraq without any substantial difficulties given that, on their own accounts, they had spent the majority of their lives there, they were familiar with the country and they spoke Kurdish Sorani.

In respect of the third applicant, the Tribunal found that the following factors weighed in his favour in the proportionality assessment. First, he had left Iraq when he was 12 years of age and had arrived in the United Kingdom at 14 years of age. Second, he had been resident in the United Kingdom continuously since 1999 when he was 14 years of age, with the exception of a short period in Germany. Third, he had established substantial private life and had strong social ties in the United Kingdom evidenced by his friendships and various successful business interests. Fourth, his ties to Iraq were relatively weak, although the Tribunal considered that they existed to some extent, because he had left Iraq as a child. Fifth, although he had committed one offence in the United Kingdom, some time had elapsed since the commission of that offence during which he had committed no other offences. Sixth, the third applicant had played a large role in the family by financially supporting the first, second and fourth applicants and providing a home for them where they lived together as a family. In that respect though, the Tribunal did not accept that the first, second and fourth applicants were entirely dependent upon him for accommodation and support because, if he were to be deported, they would be able to access the benefits system and public housing in the United Kingdom. Weighing against him in the proportionality balance, the Tribunal found, inter alia, the fact that his conviction was for a relatively serious offence given the difficulties caused by persons who wilfully sought to use false documents and the fact that a custodial sentence had been imposed; the fact that he had been knowingly in the United Kingdom illegally when he had built up his private life; and the fact that he had continued to assert that he had believed that he had legitimately acquired the British passport even though such a claim had been rejected by a jury. Over all, the Tribunal therefore concluded that, if they were considering the situation of the first three applicants individually or, together as a family unit, their removal from the United Kingdom would be proportionate under Article 8 particularly as the three applicants could return to Iraq together as a family unit.

With regard to the fourth applicant, the Tribunal accepted that he had done nothing wrong and made it clear that had he come to the United Kingdom alone and were he to be returning to Iraq alone then his Article 8 case on private life grounds would be very strong. However, the Tribunal considered that the position was changed because he would be returning to Iraq with the other applicants who would be able to provide him with assistance in the resettlement process. The Tribunal stated:

“It will, we accept, be very difficult for the fourth appellant to adapt to life in Iraq. As we say he will have no memories of that country. We would accept that he speaks a limited amount of Kurdish Sorani but not very much. However, he has some grounding in that language and, we feel, is certainly young enough to learn quite readily. We accept that he will have friends in the United Kingdom and that he has pursued various hobbies in the United Kingdom and has been schooled here. However, the benefit of the education he has had here might be something he can use in later life in Iraq. It is, we feel, an important consideration that, if all of the Article 8 appeals are to fail, he will not be returning to Iraq alone but will be doing so with his older brother and his two parents. This will, we feel, be of very considerable significance in minimising the adjustment process he will have to undergo. Were it otherwise then we would have reached a different view with respect to the fourth appellant’s appeal....”

The Tribunal therefore found that his removal would be proportionate under Article 8 of the Convention.

The applicants applied for permission to appeal to the Upper Tribunal submitting, inter alia, that the Tribunal, in finding that the removal of the fourth applicant from the United Kingdom would be a proportionate response, had failed to consider all of the relevant facts or give adequate reasons for its findings. In particular, they argued that if the Tribunal would have decided the appeal differently had the fourth applicant not had his family for support, it was difficult to see why the fourth applicant’s private life would not suffer a disproportionate breach upon removal to Iraq merely because he had his family with him. They submitted that the Tribunal had only considered his family life and had failed to appropriately consider the fourth applicant’s private life in the United Kingdom which could not be transferred to Iraq.

On 6 June 2010, a Senior Immigration Judge refused that application finding, inter alia, that the Tribunal’s consideration had been a holistic exercise where the impact of each family member had to be considered and a decision taken in the round. The fourth applicant’s private life, including the length of time that he had resided in the United Kingdom, had been considered by the Tribunal but was not determinative of the outcome of his, or the other applicants’, claims.

On 9 August 2010, the Upper Tribunal refused a renewed application for permission to appeal. The fact that the Tribunal had commented that had the fourth applicant come to the United Kingdom alone and been returning to Iraq alone his Article 8 case on private life grounds would be very strong, was found not to detract from its findings that his removal would be proportionate in the context of being removed with his two parents and older brother.

The third applicant’s deportation to Iraq is scheduled to take place on 20 June 2011.

B.  Relevant domestic law and practice

Section 82(1) of the Nationality, Immigration and Asylum Act 2002, provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department.

Appeals in asylum, immigration and nationality matters are now heard by the First-tier Tribunal (Immigration and Asylum Chamber).

Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.

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 applicants complain under Article 8 of the Convention that their removal to Iraq would be a disproportionate interference to their rights to family and/or private life in the United Kingdom.

QUESTIONS TO THE PARTIES

If so:

(i) Why is the third applicant being deported to Iraq without the first, second and fourth applicants when the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal dealt with their appeals simultaneously?

(ii) Would the removal of the first, second and fourth applicants to Iraq violate their rights to private life contrary to Article 8 of the Convention? In particular, your Government are requested to respond in light of the age of the fourth applicant when he left Iraq and arrived in the United Kingdom.