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A.A. v. THE UNITED KINGDOM - 8000/08 [2011] ECHR 1345 (20 September 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1345.html
Cite as:
[2012] INLR,
[2011] ECHR 1345,
[2012] Imm AR 107
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FOURTH
SECTION
CASE OF
A.A. v. THE UNITED KINGDOM
(Application
no. 8000/08)
JUDGMENT
STRASBOURG
20
September 2011
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 A.A. v. the United
Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 30 August 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 8000/08) 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, A.A. (“the applicant”), on 15
February 2008. The President of the Chamber acceded to the
applicant’s request not to have his name disclosed (Rule 47 § 3
of the Rules of Court).
The
applicant was represented before the Court by the Aire Centre,
a non-governmental organisation based in London. The United
Kingdom Government (“the Government”) were represented by
their Agent, Ms L. Dauban, Foreign and Commonwealth Office.
The
applicant alleged, in particular, that his deportation to Nigeria
would violate his right to respect for his family and private life
and would deprive him of the right to education by terminating his
university studies in the United Kingdom.
On
27 April 2010 the President of the Chamber decided to give notice of
the application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in Nigeria in October 1986 and currently lives in
London.
On
5 September 2000, at the age of 13 he arrived in the United Kingdom
from Nigeria, where he was granted entry clearance together with his
two sisters to join their mother, who had resided for four years in
the United Kingdom and was working as a nurse. The applicant has not
seen his father since 1991, when the latter abandoned the family.
Prior to arriving in the United Kingdom, he resided with his elderly
maternal grandfather in a town a day’s travel from Lagos.
On
27 September 2002, at the age of 15, the applicant was convicted of
the rape, together with a group of other boys, of a 13 year-old girl.
The sentencing judge remarked:
“The fact is that your self-centred behaviour has
had a profound and distressing effect on the everyday life of a
thirteen year-old girl. In my view, you are an intelligent and
articulate young man, someone who tailored your account to your
advantage and you cast deliberate aspersions on your victim. Your
intention was to obtain sexual gratification with what in reality was
an impressionable schoolgirl by a combination of persistence, charm
and finally force ...”
Taking
into account the applicant’s age and previous good character
and the fact that there were few aggravating features, the judge
imposed a sentence of detention of four years at a Young Offenders’
Institution, together with registration on the sex offenders’
register under the Sex Offenders Act 1997.
On
7 July 2003, while the applicant was still in detention, the Home
Office granted him Indefinite Leave to Remain in the United Kingdom
following the grant of Indefinite Leave to Remain to his mother.
On
8 September 2003, the applicant was served by the Home Office with a
notice of liability to a deportation order on account of the rape
conviction.
On
17 May 2004 a Parole Assessment Report was prepared, concluding that
the applicant’s response to rehabilitation was positive overall
and that he posed a low risk of re-offending and of causing harm to
the public. It noted his exemplary conduct in prison and the
consistently good reports received. While in detention, the applicant
sat and passed national school education examinations, obtaining GSCE
and AS-level qualifications.
On
27 July 2004, while still in detention, the applicant was served with
a deportation order in the following terms:
“It is concluded that in light of the seriousness
of your criminal offence your removal from the United Kingdom is
necessary in a democratic society for the prevention of disorder and
crime and for the protection of health and morals.
...
You have stated that if you are returned to Nigeria
Article 8 would be infringed. The Home Office has carefully
considered your representations, but we note that you were convicted
of rape at Central Criminal Court for which you were sentenced to
four years imprisonment. We consider that the concerns that you have
raised about your family life are outweighed by the public interest
in preventing crime and consider that any interference with your
family life is in your case outweighed by the public interest in
preventing crime, and your removal is proportionate in pursuit of
that aim under Article 8(2).”
The
applicant appealed against the order.
On
16 August 2004 the applicant was released from prison on licence for
good behaviour, having served approximately one year and ten months
of his four-year sentence. In September 2004, he enrolled at Croydon
College in order to study towards obtaining A-level qualifications,
the second part of national school education examinations. He
obtained three A-levels in summer 2005.
On
6 July 2005, the applicant’s probation officer confirmed that
the applicant had complied with all reporting instructions since his
release. The probation officer assessed the applicant’s risk of
re-offending as low.
On
12 August 2005, the Immigration Judge of the Asylum and Immigration
Tribunal (“the AIT”) allowed the applicant’s appeal
against the deportation order on the basis that the discretion to
make the deportation order had not been exercised fairly and
proportionately.
On
22 August 2005, the Secretary of State applied to the AIT for
reconsideration of the decision. The Senior Immigration Judge duly
ordered reconsideration on 25 August 2005.
In
September 2005, the applicant commenced a university undergraduate
degree in economics, banking and finance. He lived with friends
during term-time but continued to regard his mother’s address
as his permanent residence.
On
17 January 2007, a panel of the AIT unanimously concluded that there
had been a clear material error in the approach of the Immigration
Judge and quashed his decision. It adjourned the matter for
reconsideration on all issues.
On
13 April 2007 a hearing de novo of the applicant’s case
was conducted by the AIT. Delivering judgment, the Immigration Judge
indicated that the various factors to which this Court’s
case-law refers had been taken into account. He noted that the
applicant was 20 years old and had spent almost fourteen years,
including his youth and formative years, in Nigeria. He further
observed that the applicant had resided for six years and seven
months in the United Kingdom, a period which included two years and
four months spent on remand or serving his sentence. He also
considered the strength of the applicant’s connections to the
United Kingdom, observing that he was close to his mother (now a
British citizen), sisters and uncle, all of whom resided in the
United Kingdom, that he attended a church and that he was studying at
university. The judge further had regard to the applicant’s
personal history, including his rape conviction and the grant of
Indefinite Leave to Remain in July 2003. He took account of the
applicant’s domestic circumstances and his permanent residence
with his mother and previous good character. He examined the nature
of the offence for which the applicant was convicted, including the
sentencing judge’s remarks (see paragraph 8
above) and the absence of any reference to deportation, and accepted
that the applicant was at low risk of re-offending. He considered the
likely period before the applicant would be able to apply for
re-entry, which he assessed at eight years, observing that by that
time the applicant was unlikely to have any ground for applying for
entry clearance. Finally, he considered compassionate circumstances
and the public interest. In respect of the latter, the judge noted
that the presumption was in favour of deportation, that the applicant
was 20 and in good health, that he had a grandfather with a home in
Nigeria and probably had more relatives in Nigeria than he had
admitted and that family visits would be possible. He concluded (at
paragraph 130):
“Having considered all the evidence before us and
the representations made on behalf of the [applicant], we find that:
a) the [applicant’s] offence was one of the
categories of offences regarded by the [Secretary of State] as
particularly serious;
b) the circumstances in this case are not particularly
exceptional, and they do not outweigh the presumption in favour of
deportation in accordance with the current version of Rule 364 [see
paragraph 29
below];
c) in any event, even if, contrary to our finding, the
provisions of the previous Rule 364 had applied to his case, we
would have found that the public interest would have outweighed the
other factors in this case;
d) we accordingly dismiss the [applicant’s] appeal
against the [Secretary of State’s] decision to deport him.”
As
regards the applicant’s complaint under Article 8 of the
Convention, the judge was not persuaded that the applicant currently
had family life in the United Kingdom, given that he was 20 years
old, lived with friends during term-time, and had no elements of
dependence in respect of his mother, sisters or uncle going beyond
normal emotional ties. However, he did accept that the applicant had
established a private life in the United Kingdom given the length of
his residence, the presence of family members in the United Kingdom,
and his attendance at a church and university. He added:
“134. We also find that the [Secretary of State’s]
decision interferes with respect for that private life, in that he
would be separated from his family and church, and his degree course
... would be cut short.
135. However, we also find that the interference pursues
the lawful aim of immigration control, that it is in accordance with
the law, and that it is proportionate, and in making the finding
about proportionality we have balanced the following factors:
a) all the same factors, including the [applicant’s]
domestic circumstances, as we have already taken into account when
considering the balancing exercise in relation to the deportation of
the [applicant];
b) the fact that the public interest in maintaining an
effective immigration control normally outweighs respect for an
individual appellant’s private life;
c) the fact, as we find, that the public interest in the
prevention of crime in this case also outweighs the [applicant’s]
right to respect for private life;
d) and we find that none of the factors mentioned on
behalf of the [applicant], individually or cumulatively, prejudices
the private life of the [applicant] in a manner sufficiently serious
to amount to a breach of the fundamental right protected by Article 8
...”
Accordingly,
the applicant’s appeal was dismissed.
The
applicant sought permission to appeal to the Court of Appeal.
Permission was refused by the Court of Appeal on 25 January 2008.
In
July 2008, the applicant completed his undergraduate degree. In
December 2009 he completed a Master’s degree. In April 2010 he
was offered employment with a local authority in London, which he
accepted. He currently lives with his mother and visits his two
sisters, who also reside in England, regularly. The applicant
continues to attend church in London.
On
17 September 2010 the applicant received a letter from the UK Border
Agency indicating that the immigration authorities were considering
whether deportation action should be taken in respect of the
applicant’s conviction. The applicant was requested to provide
details of any change in his circumstances since his last contact
with the immigration authorities. Upon being advised that a case was
pending before this Court, the immigration authorities indicated that
they would await the outcome of these proceedings.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Section
3(5)(a) of the Immigration Act 1971 (as substituted 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
5 provides that:
“(1) Where a person is under section 3(5) or (6)
above liable to deportation, then subject to the following provisions
of this Act the Secretary of State may make a deportation order
against him ... and a deportation order against a person shall
invalidate any leave to enter or remain in the United Kingdom given
him before the order is made or while it is in force.
(2) A deportation order against a person may at any time
be revoked by a further order of the Secretary of State ...”
Sections 82(1), 82(2)(j) and (k)
and 84 of the Nationality, Immigration and Asylum Act 2002 (as
amended) provide for a right of appeal against such decision to make
a deportation order or a refusal to revoke a deportation order on the
grounds, inter alia,
that the decision is incompatible with the Convention.
The Immigration Rules,
prescribed by the Secretary of State under section 3(2) of the
Immigration Act 1971 for the implementation of the Act, provide as
follows:
“364. Subject to paragraph 380, while each case
will have to be considered on its merits, where a person is liable to
deportation the presumption shall be that the public interest
requires deportation. The Secretary of State will consider all
relevant factors in considering whether the presumption is outweighed
in any particular case, although it will only be in exceptional
circumstances that the public interest in deportation will be
outweighed in a case where it would not be contrary to the Human
Rights Convention and the Convention and Protocol relating to the
Status of Refugees to deport. The aim is an exercise of the power of
deportation which is consistent and fair as between one person and
another, although one case will rarely be identical with another in
all material respects ...
...
380. A deportation order will not be made against any
person if his removal in pursuance of the order would be contrary to
the United Kingdom’s obligations under the Convention and
Protocol relating to the Status of Refugees or the Human Rights
Convention.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that his deportation to Nigeria would violate
his right to respect for his family and private life as provided in
Article 8 of the Convention, which reads 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.”
He
further contended that Rule 364 of the Immigration Rules (see
paragraph 29 above)
did not adequately protect his rights under that Article.
The
Government contested the applicant’s arguments.
A. Admissibility
The
Court notes that the applicant’s complaints under Article 8 of
the Convention are not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes that
they are not inadmissible on any other grounds. They must therefore
be declared admissible.
B. Merits
1. The parties’ submissions
a. The applicant
The
applicant maintained that deportation interfered with his right to
respect for private and family life. He contended in particular that
he was a young adult who had not yet founded a family of his own and
argued that his relationship with his mother and sisters constituted
family life. He further disputed that the interference with his
private and family life was limited.
Although
he accepted that the interference was in accordance with the law, he
disputed the legitimate aims relied on by the Government. In
particular, he did not accept that his expulsion pursued the aims of
“public safety” or “protection of the rights of
others”. He emphasised that there was no reason to believe that
he posed a risk to the public at large or to children in particular.
As
to whether his deportation was necessary in a democratic society, the
applicant referred to the fact that the first Immigration Judge to
examine his case had found in his favour (see paragraph 16
above), a consideration which he contended was relevant to the
Court’s judgment in Bousarra v. France, no. 25672/07,
§ 51, 23 September 2010, BAILII: [2010] ECHR 1999. The other relevant factors in
his case were the nature and seriousness of the offence, the length
of his stay in the United Kingdom, the time which had elapsed since
the offence and his conduct during that period and the solidity of
social, cultural and family ties with the host country and the
country of destination. He accepted that the offence for which he was
convicted was serious; indeed he had never sought to deny this and
had demonstrated significant remorse for the offence. However, he
emphasised his young age at the time the offence was committed and
the fact that he had not reoffended. He also considered relevant the
extent of his reintegration into society following his release,
achieved despite the threat of expulsion which had hung over him
since September 2003, and that it was accepted that he posed a low
risk of re-offending. He further stressed that he had now been in the
United Kingdom for over ten years and had completed the greater part
of his education, including an undergraduate and postgraduate degree,
there. His ties, he concluded, were with the United Kingdom and his
links with Nigeria were limited to his one remaining relative, who
was sick and elderly.
Finally,
the applicant relied upon the fact that he was granted Indefinite
Leave to Remain after having been convicted for the offence of rape.
He considered that this was important in considering whether the
deportation decision was disproportionate, relying on Omojudi v.
the United Kingdom, no. 1820/08, BAILII: [2009] ECHR 1942, § 42, 24 November 2009. He
noted in particular that he was served with a notice of liability to
deportation on grounds of the conviction in September 2003, less than
two months after the grant of Indefinite Leave to Remain (see
paragraphs 9-10 above),
which showed that by that time at least – and probably even
earlier – the immigration authorities were aware of his
conviction. He thus disputed the Government’s explanation that
Indefinite Leave to Remain was granted without knowledge of the
conviction.
The
applicant finally argued that the presumption in the Immigration
Rules that when a person was liable to deportation, deportation was
in the public interest, was incompatible with Article 8. In placing
the burden on the applicant to show that deportation was not
justified, he argued, paragraph 364 of the Immigration Rules departed
from the approach adopted by the Convention and the Court.
b. The Government
The
Government considered that the AIT was correct to conclude that
deportation would not interfere with the applicant’s right to
respect for family life. They accepted, however, that deportation
would constitute an interference with the applicant’s right to
respect for his private life but contended that the extent of the
interference was limited. In particular, after deportation the
applicant would be able to maintain his relationships with friends
and family in the United Kingdom and would be able to continue
attending church in Nigeria.
They
further argued that the interference was justified pursuant to
Article 8 § 2. They noted that the applicant accepted that the
deportation was “in accordance with the law”. As to the
legitimate aims pursued, the Government relied on the aims of “public
safety”, “prevention of disorder or crime” and
“protection of the rights of others”.
They
also contended that deportation was also necessary in a democratic
society. In this regard, they referred to the criteria listed by the
Court in Maslov v. Austria [GC], no. 1638/03, BAILII: [2008] ECHR 546, § 68, 23
June 2008 and Üner v. the Netherlands [GC], no. 46410/99, BAILII: [2006] ECHR 873,
§§ 54-58, ECHR 2006 XII which they emphasised had been
fully taken into account by the AIT. Aside from the young age of the
victim and the fact that the rape was committed with a group of other
boys, the applicant had been involved in luring the victim to the
address where the offence took place, demonstrating a degree of
planning and sophistication. It was also relevant that the applicant
had pleaded not guilty thus forcing the victim to relive the ordeal
at trial. Although the offence was committed when the applicant was
under the age of eighteen, he was substantially above the age of
criminal responsibility. The Government were also of the view that
the applicant was capable of living independently. He had spent
relatively little time living with family members since his arrival
in the United Kingdom and was resourceful and intelligent, in good
physical and mental health and would be able to establish a private
life in Nigeria without difficulty.
The
Government argued that the length of time the applicant had spent in
the United Kingdom was not a significant factor, given that he had
been in the country for less than two years before committing the
offence, that the deportation order was made while he was still in
detention and that the time since his release had been taken up with
his challenge to deportation. The time which had elapsed since the
offence was committed was also not significant, for similar reasons.
As
to the grant of Indefinite Leave to Remain following the applicant’s
conviction, the Government explained that it was granted
automatically following the grant of Indefinite Leave to Remain to
his mother and the authorities were not aware of the conviction at
the time because it was not entered into the internal case database
until 8 September 2004. Had the applicant applied himself, he would
have had to disclose the conviction which would have been taken into
account. Accordingly, the Government argued, the case was materially
different from Omojudi, cited above, where the Court placed
considerable weight on the fact that the Secretary of State was fully
aware of the offending history when Indefinite Leave to Remain was
granted.
In
conclusion, the Government argued that deportation was proportionate
to the need to protect the public, including vulnerable members of
the public such as children, from the serious harm posed by those
who, like the applicant, had committed a serious sexual offence
against a child.
Finally,
regarding the applicant’s complaint about paragraph 364 of the
Immigration Rules, the Government contended that the complaint was
misplaced. In particular, it was not necessary for the Court to
undertake an abstract review of every aspect of the domestic legal
framework to assess compatibility with the Convention. In any event,
the AIT considered that even under the previous rule, which the
applicant was satisfied complied with Article 8, the public interest
in favour of deportation outweighed other public interest factors.
2. The Court’s assessment
a. Whether there was an interference with
the applicant’s right to respect for his private and family
life
The
Court recalls that in Bouchelkia v. France, 29 January 1997, BAILII: [1997] ECHR 1,
§ 41, Reports of Judgments and Decisions 1997 I,
when considering whether there was an interference with Article 8
rights in a deportation case, it found that “family life”
existed in respect of an applicant who was 20 years old and living
with his mother, step-father and siblings. In Boujlifa v. France,
21 October 1997, BAILII: [1997] ECHR 83, § 36, Reports 1997 VI, the
Court considered that there was “family life” where an
applicant aged 28 when deportation proceedings were commenced against
him had arrived in France at the age of five and received his
schooling there, had lived there continuously with the exception of a
period of imprisonment in Switzerland and where his parents and
siblings lived in France. In Maslov, cited above, § 62,
the Court recalled, in the case of an applicant who had reached the
age of majority by the time the exclusion order became final but was
living with his parents, that it had accepted in a number of cases
that the relationship between young adults who had not founded a
family of their own and their parents or other close family members
also constituted “family life”.
However,
in two recent cases against the United Kingdom the Court has declined
to find “family life” between an adult child and his
parents. Thus in Onur v. the United Kingdom, no. 27319/07, §§
43-45, 17 February 2009, BAILII: [2009] ECHR 289, the Court noted that the applicant, aged
around 29 years old at the time of his deportation, had not
demonstrated the additional element of dependence normally required
to establish “family life” between adult parents and
adult children. In A.W. Khan v. the United Kingdom,
no. 47486/06, BAILII: [2010] ECHR 27, § 32, 12 January 2010, the Court reiterated
the need for additional elements of dependence in order to establish
family life between parents and adult children and found that the
34-year old applicant in that case did not have “family life”
with his mother and siblings, notwithstanding the fact that he was
living with them and that they suffered a variety of different health
problems. It is noteworthy, however, that both applicants had a child
or children of their own following relationships of some duration.
Most
recently, in Bousarra, cited above, §§
38-39, the Court found “family life” to be established in
a case concerning a 24-year old applicant, noting that the applicant
was single and had no children and recalling that in the case of
young adults who had not yet founded their own families, their ties
with their parents and other close family members could constitute
“family life”.
49. An
examination of the Court’s case-law would tend to suggest that
the applicant, a young adult of 24 years old, who resides with his
mother and has not yet founded a family of his own, can be regarded
as having “family life”. However, it is not necessary to
decide the question given 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. Thus, regardless of the
existence or otherwise of a “family life”, the expulsion
of a settled migrant constitutes an interference with his right to
respect for private life. While the Court has previously referred to
the need to decide in the circumstances of the particular case before
it whether it is appropriate to focus on “family life”
rather than “private life”, it observes that in practice
the factors to be examined in order to assess the proportionality of
the deportation measure are the same regardless of whether family or
private life is engaged (Üner, cited above, §§
57-60).
An
interference with right to respect for private life 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 and as being
“necessary in a democratic society” in order to achieve
the aim or aims concerned.
b. “In accordance with the law”
The
parties did not dispute that the deportation order was in accordance
with the law. The Court notes that the deportation order was made
pursuant to section 3(5)(a) of the Immigration Act 1971 (see
paragraph 26 above).
c. Legitimate aim
The
Court observes that the deportation order served on the applicant in
July 2004 indicated that his deportation was considered necessary for
the “prevention of disorder and crime” and for the
“protection of health and morals” (see paragraph 12
above). Before the Court, the Government contended that the
applicant’s deportation would serve the aims of “public
safety”, “prevention of disorder or crime” and
“protection of the rights of others” (see paragraph 40
above).
The
Court recalls that in its previous examination of cases in which an
applicant was deported, or was threatened with deportation, following
his conviction of a criminal offence, the Court has consistently
considered that the legitimate aim pursued by deportation was the
“prevention of disorder or crime” (see, for example,
Bouchelkia, cited above, § 44; Boujlifa, cited
above, § 39; Boultif v. Switzerland, no. 54273/00, BAILII: [2001] ECHR 497, §
45, ECHR 2001 IX; Maslov, cited above, § 67;
Omojudi, cited above, § 40; and Bousarra, cited
above, § 42).
In
Üner, cited above, § 61, and Onur, cited
above, § 53, the Court accepted that both “public safety”,
and “prevention of disorder or crime” were engaged.
However, it appears that the aims asserted by the Government in these
cases were not disputed by the applicants. Further, the Court notes
that in Üner, prior to commission of the offence in
respect of which deportation was ordered, the applicant had committed
other less serious, although still violent, offences and had not
produced any evidence to support his statement that his risk of
reoffending was low (see § 24 of the judgment). In Onur,
following the conviction for the offence for which he was to be
deported, the applicant had committed a further offence and
subsequently failed to surrender to custody (see paragraph 56 of the
judgment).
The
applicant in the present case committed a single offence and has
produced reports indicating that his risk of reoffending was low (see
paragraphs 11 and 14
above). Further, the AIT in its judgment of April 2007 accepted that
there was a low risk that the applicant would reoffend (see paragraph
20 above). It is also of some significance that
the deportation order served on the applicant in July 2004 did not
refer to the aims of “public safety” or “protection
of the rights of others”. In light of these considerations, and
in the absence of any specific observations from the Government to
support their contention that the applicant’s deportation would
serve the additional aims to which they now refer, the Court
considers that in the present case the intended deportation of the
applicant pursued the legitimate aim of the “prevention of
disorder or crime”.
d. “Necessary in a democratic
society”
The
assessment of whether the impugned measure was necessary in a
democratic society is to be made with regard to the fundamental
principles established in the Court’s case-law and in
particular the factors summarised in Üner, cited above,
§§ 57-85, namely:
- 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 which has 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 any
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;
- the
seriousness of the difficulties which the spouse is likely to
encounter in the country to which the applicant is to be expelled;
- the
best interests and well-being of any 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 reiterates that these criteria are meant to facilitate the
application of Article 8 in expulsion cases by domestic courts and
that the weight to be attached to the respective criteria will
inevitably vary according to the specific circumstances of
each case. Further, not all the criteria will be relevant in a
particular case. It is in the first instance for the domestic courts
to decide, in the context of the case before them, which are the
relevant factors and what weight to accord to each factor. However,
the State’s margin of appreciation in this regard goes hand in
hand with European supervision and the Court is therefore empowered
to give the final ruling on whether an expulsion measure is
reconcilable with Article 8 (see Maslov, cited above, §
76).
It
should also be borne in mind that where, as in the present case, the
interference with the applicant’s rights under Article 8
pursues the legitimate aim of “prevention of disorder or
crime”, the above criteria ultimately are designed to help
evaluate the extent to which the applicant can be expected to cause
disorder or to engage in criminal activities (see Maslov,
cited above, § 70).
In
the present case, the Court considers the relevant factors to be the
nature and seriousness of the offence committed by the applicant; the
length of the applicant’s stay in United Kingdom; the time
which has elapsed since the offence was committed and the applicant’s
conduct during that period; and the solidity of social, cultural and
family ties with the host country and with the country of
destination.
The
Court has made it clear that very serious violent offences can
justify expulsion even if they were committed by a minor (see Maslov,
cited above, § 85). There can be no doubt that the applicant’s
offence was a serious one and the Court considers the comments of the
sentencing judge as to the applicant’s conduct and the effect
of the attack on the victim to be relevant factors to be taken into
account (see paragraph 8 above). The sentence
imposed – four years in a Young Offenders’ Institution –
demonstrates the gravity of the offence. However, the fact that the
applicant was a minor at the time the offence was committed is a
relevant consideration in assessing the proportionality of a
deportation (see Maslov, cited above, § 72). In this
regard, the Court recalls that where offences committed by a minor
underlie an exclusion order, regard must be had to the best interests
of the child. In particular, the obligation to take the best
interests of the child into account includes an obligation to
facilitate his reintegration, an aim that the Court has previously
held will not be achieved by severing family or social ties through
expulsion (see Maslov, cited above, §§ 82-83).
The
Court observes that the total length of the applicant’s stay in
the United Kingdom to date is eleven years. He arrived in the country
at the age of 13 and has therefore now spent almost half his life in
the United Kingdom. The Court notes that the applicant committed the
offence which rendered him liable to deportation less than two years
after his arrival in the United Kingdom. Further, following his
conviction, he spent some two years in detention, during which time
he was served with a deportation order. While the applicant was
granted Indefinite Leave to Remain during this period, the Court is
persuaded by the Government’s submissions that leave was
granted in ignorance of the applicant’s conviction and, as a
result, considers that no significance can be attached to the fact
that Indefinite Leave to Remain was granted following the conviction
(compare and contrast Omojudi, cited above, § 42). It is
also true that the applicant has been aware since July 2003 of the
fact that he was liable to be deported on account of his conviction.
However, the Court nonetheless observes that he has now spent seven
years at liberty in the United Kingdom following his release and
despite having exhausted appeal rights in January 2008, no steps
appear to have been taken in respect of his deportation until
September 2010 (see paragraphs 23-25
above).
As
to the lapse of time and the applicant’s conduct since
commission of the offence in 2002, the Court observes at the outset
that the applicant has committed no further offences. While in
detention, the applicant took advantage of the educational
opportunities available to him and obtained a number of high school
qualifications (see paragraph 11 above). At the
time of his release from detention in August 2004, his risk of
reoffending was assessed to be low (see paragraph 11
above), an assessment subsequently reiterated by his probation
officer in 2005 and accepted by the AIT in 2007 (see paragraphs 15
and 20 above). Since his release, the
applicant’s conduct appears to have been exemplary. He enrolled
in college in September 2004 in order to sit his A-level
examinations, which he obtained in summer 2005 (see paragraph 14
above). He was subsequently offered a place at university to study
towards an undergraduate degree, which he obtained in 2008, followed
by a postgraduate degree, which he completed in 2009 (see paragraphs
18 and 24 above). He
commenced stable employment with a local authority in 2010 (see
paragraph 24 above).
The
Government have not pointed to any concern regarding the applicant’s
conduct in the seven years since his release from prison and rely
solely on the seriousness of the offence to justify concerns as to
his continued presence in the United Kingdom and his risk to the
public (see paragraphs 41-42
and 44 above). The Court reiterates that the
factors to be taken into consideration in cases involving deportation
following a criminal offence are partially designed to evaluate the
extent to which the applicant can be expected to cause disorder or to
engage in criminal activities (see paragraph 57
above). In particular, the fact that a significant period of good
conduct has elapsed following the commission of the offence
necessarily has an impact on the assessment of the risk which the
applicant poses to society (see Boultif, cited above, §
51; Maslov, cited above, § 90; and A.W. Khan,
cited above, § 41). Accordingly, the Court considers the present
factor to be of particular importance when assessing whether the
seriousness of the offence in itself is sufficient to justify the
applicant’s deportation for the prevention of disorder or
crime.
Finally,
as regards the applicant’s ties with the United Kingdom and
with Nigeria, the Court observes that the applicant continues to
reside with his mother and has close relationships with his two
sisters and an uncle, all of whom reside in England. He has completed
the majority of his high school and further education in the United
Kingdom and has now commenced a career with a local authority in
London. He is also a member of a church community. While he spent a
significant period of his childhood in Nigeria, he has now not
visited the country for eleven years. He has had no contact with his
father since 1991.
The
Court recalls that all of the above factors were referred to and
discussed, with reference to the relevant facts at the time, by the
AIT in its decision of April 2007 (see paragraphs 20-22
above). Like the AIT, the Court is persuaded that it is appropriate
to accord significant weight to the seriousness of the offence for
which the applicant was convicted when considering the
proportionality of deportation for the prevention of disorder or
crime. At the time the AIT considered the applicant’s appeal,
he had been at liberty following his release from detention for less
than three years and was in the second year of his undergraduate
degree. The AIT decided at that time that the public interest in
favour of deportation prevailed. The Court considers that, having
identified the relevant factors, the AIT’s assessment of the
weight to be accorded to each of these factors was within its margin
of appreciation. The Court observes that no subsequent assessment of
the proportionality of the applicant’s deportation took place:
in January 2008, the Court of Appeal refused leave to appeal without
examining in detail the merits of the applicant’s case (see
paragraph 23 above).
Although
the refusal of leave by the Court of Appeal meant that the applicant
had exhausted his appeal rights, the immigration authorities appear
to have taken no steps to deport him following the conclusion of the
domestic proceedings, even though no interim measures preventing the
applicant’s expulsion were ever sought by him, or applied by
the Court. As a consequence, the applicant has remained in the United
Kingdom for a further period of over three and a half years since the
domestic courts last considered the proportionality of his
deportation. In that time, as noted above, he has completed his
university education and commenced stable employment. He has
committed no further offences.
The
Government did not argue in their written observations that the Court
should not have regard to facts which occurred after the final
domestic decision in January 2008. The Court recalls that according
to its established case-law under Article 3 of the Convention, the
existence of a risk faced by an applicant in the country to which he
is to be expelled is assessed by reference to the facts which were
known or ought to have been known at the time of the expulsion; in
cases where the applicant has not yet been deported, the risk is
assessed at the time of the proceedings before the Court (see Saadi
v. Italy [GC], no. 37201/06, BAILII: [2008] ECHR 179, § 133, ECHR 2008 ...). The
Court sees no reason to take a different approach to the assessment
of the proportionality of a deportation under Article 8 of the
Convention and points out in this regard that its task is to assess
the compatibility with the Convention of the applicant’s actual
expulsion and not of the final expulsion order (see Maslov,
cited above, § 93). Any other approach would render the
protection of the Convention theoretical and illusory by allowing
Contracting States to expel applicants months, even years, after a
final order had been made notwithstanding the fact that such
expulsion would be disproportionate having regard to subsequent
developments. The Government have not explained whether further
remedies within the domestic legal system are now available to allow
the applicant to challenge his deportation a second time, nor have
they suggested that the Court is precluded from examining
developments on the basis that the applicant has failed to exhaust
domestic remedies. In the circumstances, it is appropriate for the
Court itself to assess the effect of this additional lapse of time on
the proportionality of the applicant’s deportation.
The
Court has already indicated that in a case where deportation is
intended to satisfy the aim of preventing disorder or crime, the
period of time which has passed since the offence was committed and
the applicant’s conduct throughout that period are particularly
significant (see paragraph 63 above). The Court
has further referred to the importance, in cases where the
deportation offence was committed by the applicant when he was a
minor, of facilitating his reintegration into society (see paragraph
60 above). Thus while the fact that the
applicant was a minor when he committed the offence does not preclude
his deportation given the seriousness of the offence in question, the
latter consideration must be carefully weighed against the
applicant’s exemplary conduct and, as the evidence before the
Court demonstrates, commendable efforts to rehabilitate himself and
to reintegrate into society over a period of seven years. In such
circumstances, the Government are required to provide further support
for their contention that the applicant can reasonably be expected to
cause disorder or to engage in criminal activities such as to render
his deportation necessary in a democratic society. However, the
Government have neither cited other relevant concerns nor submitted
any documents capable of supporting such a contention.
The
foregoing considerations are sufficient to enable the Court to
conclude that the applicant’s deportation from the United
Kingdom would be disproportionate to the legitimate aim of the
“prevention of disorder and crime” and would therefore
not be necessary in a democratic society.
There
would accordingly be a violation of Article 8 of the Convention if
the applicant were deported to Nigeria.
In
the circumstances the Court considers it unnecessary to examine the
applicant’s arguments regarding paragraph 364 of the
Immigration Rules.
II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 1 TO
THE CONVENTION
The
applicant complained that deportation would deprive him of the right
to education by terminating his university studies in the United
Kingdom. He relied on Article 2 of Protocol No. 1 to the Convention,
which provides:
“No person shall be denied the right to education.
In the exercise of any functions which it assumes in relation to
education and to teaching, the State shall respect the right of
parents to ensure such education and teaching in conformity with
their own religious and philosophical convictions.”
The
Court observes that the applicant completed his undergraduate studies
in the summer of 2008 and his postgraduate studies in December 2009.
Accordingly, to the extent that Article 2 of Protocol No. 1 applies
in the present case (see Leyla Şahin v. Turkey [GC], no.
44774/98, BAILII: [2005] ECHR 819, §§ 134-142, ECHR 2005 XI), the applicant is
in any event not a victim of any alleged violation of that
Article. The complaint is accordingly incompatible ratione
personae with the provisions of the Convention and its Protocols
and must be declared inadmissible pursuant to Article 35 §§
3 and 4.
III. 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 submitted that a finding by the Court that his expulsion
would violate the Convention would in itself provide sufficient just
satisfaction and accordingly he did not claim damages. The Court
therefore makes no award under this head.
B. Costs and expenses
The
applicant also claimed GBP 5,729.49 for the costs and expenses
incurred before the Court.
The
Government argued that the case was straightforward and that no new
issue of principle arose. In these circumstances, they considered
that the number of lawyers involved in the preparation of the case,
the rates charged and the time spent were excessive. They proposed
the sum of GBP 2,460, which corresponded to the costs incurred by the
Government in the proceedings before the Court.
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, the Court considers it
reasonable to award the sum of EUR 4,000 for the proceedings before
the 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 complaints concerning Article 8 of
the Convention admissible and the remainder of the application
inadmissible;
Holds that there would be a violation of Article
8 of the Convention in the event of the applicant’s
deportation;
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 4,000 (four
thousand euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses, to be converted into
pounds sterling at the rate applicable at the date of settlement;
(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 20 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
