European Court of Human Rights

FOURTH SECTION

Applications nos. 4428/12 and 4487/12
Njabulo NCUBE against the United Kingdom
and Lynda Erdoo ABU and others against the United Kingdom
lodged on 16 January 2012 and 13 January 2012 respectively

STATEMENT OF FACTS

THE FACTS

The first applicant, Mr Njabulo Ncube, is a Zimbabwean national, who was born in 1989 and lives in London. He is represented before the Court by Paragon Law, a law firm practising in Nottingham.

The second applicant, Ms Lynda Abu, is a Nigerian national, who was born in 1988 and lives in London. The third and fourth applicants, Martha Akiga and Felix Akiga, are a married couple and were born in 1964 and 1967 respectively. The fifth, sixth, seventh, eighth and ninth applicants are the children of the third and fourth applicants and were born in 1992, 1994, 1995, 2002 and 2006 respectively. The third to ninth applicants are all British nationals. The second to ninth applicants are all represented before the Court by Mr A. Faluyi, counsel practising with Corban Solicitors in London.

A.  The circumstances of the case

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

1.  The first applicant

The first applicant arrived in the United Kingdom on 1 June 2001, at eleven years of age, and was granted six months’ leave to enter as a visitor. He arrived with his grandmother, who he then believed to be his mother, and his aunt, who he believed to be his stepsister. Since his arrival in the United Kingdom, he has discovered that his real mother, who he had never met, has Down’s syndrome and remains in an institution in Zimbabwe.

In November 2001, the first applicant submitted an application for leave to remain in the United Kingdom as the dependent child of a man who was, at the time, in a relationship with his grandmother. That application was refused by the Secretary of State in February 2003. A later appeal was dismissed in 2003, in the absence of the first applicant and his representatives. The appeal was reheard by the then Asylum and Immigration Tribunal (“AIT”) in 2005 and dismissed for unknown reasons.

At some point in 2003 or 2004, the first applicant’s grandmother and aunt returned to Zimbabwe. The first applicant was left in the United Kingdom with his grandmother’s, by then, ex-partner. He claims that since his grandmother and his aunt’s return to Zimbabwe, he has had little contact with them because he was upset about the lies that he had been told during his childhood about his mother and because his grandmother has been very ill.

The first applicant attended both primary and secondary school in the United Kingdom where he completed his GSCEs. In 2008, he started a course in music and the performing arts. He has been awarded various academic and vocational qualifications and has received positive reports from his college tutors. He has been a key member of his local church and has been involved in a charity which helps young people in the community by providing facilities for studies.

On 2 December 2009, the first applicant claimed asylum because of his length of residence in the United Kingdom and his fear of being considered to be a traitor and therefore ill-treated by the Zimbabwean authorities upon return.

On 18 December 2009, the Secretary of State refused his asylum claim. It was not accepted that the first applicant would be at risk upon return to Zimbabwe given that he had no political profile. It was also not accepted that his removal to Zimbabwe would breach his rights under Article 8 of the Convention given that he was a young, healthy and single male without any dependents.

He appealed relying, inter alia, on his rights under Article 8 of the Convention and in particular on the strength of his private life in the United Kingdom; his age on arrival; the fact that he had spent half of his life in the United Kingdom; the fact that he had never tried to evade immigration officers and had never committed any offences in the United Kingdom; his community ties in the United Kingdom; and his lack of contacts or ties to Zimbabwe.

On 13 February 2010, the then AIT dismissed his appeal against the Secretary of State’s decision. The Immigration Judge accepted that the first applicant was a credible witness and did not doubt that he did not wish to return to Zimbabwe. Nevertheless, it was noted that, even according to his own evidence, he had no political profile either in the United Kingdom or Zimbabwe. Thus, even though the first applicant had not been in Zimbabwe for a considerable period, it was not accepted that he would be at any real risk of persecution or treatment contrary to Article 3 upon return. It was further not accepted that he would be at risk of destitution on return given that he was a fit and healthy young man and there was no evidence to suggest that he could not obtain employment there or reside with his grandmother and “stepsister”, if necessary, on return.

In relation to Article 8 of the Convention, the Immigration Judge accepted that the first applicant had established private life in the United Kingdom in light of, inter alia, his arrival at eleven years of age; the fact that he had spent essentially half of his life and his formative years in education in the United Kingdom; the evidence that he had integrated well into life in the United Kingdom; the fact that he was highly regarded by his friends, his college tutor and his pastor; his strong friendships in the United Kingdom; and his work within his church and for a local charity in the United Kingdom.

However, the Immigration Judge was also satisfied that the interference in his private life caused by his removal would be proportionate to the legitimate aim of effective immigration control having regard to, inter alia, the support that he was likely to have from his grandmother and “stepsister” upon return which would mean that he would not be destitute; the fact that he had been aware throughout his stay that he had no immigration status in the United Kingdom but had not actively pursued any avenues to regularise his stay since 2005; the existence of churches that he could attend in Zimbabwe; and his ability to re-establish himself in Zimbabwe and maintain contact with his friends in the United Kingdom.

The first applicant appealed, inter alia, claiming that the Immigration Judge had erred in his approach to Article 8 of the Convention and had not given proper weight to the length of the applicant’s residence in the United Kingdom. The applicant had not committed any criminal offences, nor was there any suggestion of other bad character, and he had come to the United Kingdom as a young child. It was argued that it was not sufficient for the Immigration Judge merely to find that the applicant could establish another, quite different, private life in Zimbabwe and that such a finding failed to provide an adequate answer to the question as to whether the interference in his private life in the United Kingdom was proportionate.

On 17 March 2010, the first applicant was granted permission to appeal to the Upper Tribunal.

On 16 November 2010, the Upper Tribunal upheld the determination of the Immigration Judge and held that there had been no error of law finding, inter alia, that the Immigration Judge had adopted the correct approach to Article 8 and had given appropriate weight to the length of time that the first applicant had spent in the United Kingdom.

On 19 April 2011, the Court of Appeal refused his application for permission to appeal, finding that the Immigration Judge had given full consideration to the circumstances of the first applicant’s life in the United Kingdom and the likely consequences of his removal. It was considered that there was no reason to think that either the Immigration Judge or the Upper Tribunal had failed to approach the Article 8 issue with a proper understanding of the importance of private life for the first applicant who had spent so much of his life in the United Kingdom.

On 27 July 2011, the Court of Appeal refused his renewed application for permission to appeal after an oral hearing. It was considered that, even if the Article 8 balancing exercise were to be carried out afresh, there was no realistic prospect that any different decision would be reached in the circumstances of the case.

2.  The second to ninth applicants

(a)   Events in Nigeria

The second applicant’s parents were killed in Nigeria in 2001. She was placed in an orphanage by her only remaining relative, her uncle, because he was unable to care for her.

She suffered from health problems and was found in the orphanage by the third applicant’s mother. Arrangements were then made for her to leave the orphanage and to be brought to the United Kingdom to be cared for by the third and fourth applicants.

(b)  The second applicant’s arrival in the United Kingdom

The second applicant arrived in the United Kingdom on 11 March 2002 on a medical visit visa valid until 6 September 2002. She moved in with the third and fourth applicants and their family, and has lived in their household as part of the family ever since. She has considered the third and fourth applicants to be her parents and the fifth to ninth applicants to be her siblings since her arrival in the United Kingdom. All of the applicants consider the second applicant to be another member of their family.

On 4 September 2002, the second applicant submitted an application for further leave to remain in the United Kingdom on compassionate grounds. That application was refused by the Secretary of State on 14 May 2003 for unknown reasons. There is no record of any appeal against that decision.

The second applicant attended secondary school in the United Kingdom, completed her GCSEs, attended work placements, made a wide group of friends and became an active member of her church.

(c)  The second applicant’s application to regularise her stay in the United Kingdom

On 8 October 2010, the second applicant submitted an application for further leave to remain in the United Kingdom on compassionate grounds and relied on her rights to family and private life under Article 8 of the Convention. She submitted that her parents had been killed in Nigeria; that she had no-one to return to there; that she had been adopted by the third and fourth applicants who, along with their children (the fifth to ninth applicants) were the only family that she had; and that she had integrated into the community in to the United Kingdom where she had, inter alia, been educated and had conducted work placements.

On 6 September 2011, the Secretary of State refused her application. First, it was not accepted that the second applicant had any family life in the United Kingdom within the meaning of Article 8 of the Convention. She was single without children and there was no evidence that she had been formally adopted in the United Kingdom by the third and fourth applicants. Furthermore, she was an adult and she had submitted no evidence of any dependency over and above normal emotional ties with the third to ninth applicants. Second, although it was accepted that the she had established private life in the United Kingdom, it was considered that any interference in the same caused by her removal to Nigeria would be proportionate to the legitimate aim of immigration control given that, inter alia, she had always been aware of the precarious nature of her stay in the United Kingdom; there was no evidence to suggest that she required any medical treatment which would, in any event, be available in Nigeria; it was not accepted that she had no contact with her uncle in Nigeria; and she was a fit, healthy, well educated adult who would be able to continue to complete educational courses and work placements in Nigeria as she had done in the United Kingdom. Whilst it was accepted that she may face practical difficulties in continuing her life in Nigeria and may have genuine concerns about the uncertainties ahead, she had failed to adduce any evidence that she would not be able to lead a normal life in Nigeria judged by the standards there.

She appealed relying on her rights to family and private life in the United Kingdom under Article 8 of the Convention. She argued that she had been de facto adopted by the third and fourth applicants after she had been orphaned in Nigeria; that she had come to the United Kingdom after traumatic experiences in Nigeria and that there was clear evidence of a strong relationship with her adoptive family.

On 19 October 2011, the First-tier Tribunal (Immigration and Asylum Chamber) dismissed her appeal against the refusal of her application for leave to remain. The Immigration Judge accepted that there had been a “de facto adoption” of the second applicant by the third and fourth applicants given, inter alia, that she had been brought by them from an orphanage in Nigeria; that the documents clearly demonstrated that the third applicant had been willing to take responsibility for the second applicant in the United Kingdom; and that the evidence from various family members (the other applicants) clearly indicated that they were a family unit who treated each other as members of the same family. Nevertheless, the Immigration Judge did not accept that the second applicant’s relationship with the other applicants was such as to engage Article 8 because she was an adult and there were no ties with her adoptive family beyond the normal ties of kinship and affection. In that regard, the Immigration Judge noted, inter alia, that she was 23 years of age; that although she was living with them and was financially dependent upon them, it was probably more a matter of circumstances given that she had no status in the United Kingdom and could not work; and that she was clearly a personable young woman able to make a position for herself in the community and capable of living independently.

The Immigration Judge accepted that the second applicant had developed a strong private life in the United Kingdom given, inter alia, her relationship with her adoptive family; her wide circle of friends who had supported her in her application to remain in the United Kingdom and had attended court on her behalf; her strong involvement with the church; her studies in the United Kingdom and the academic qualifications she had achieved; and the fact that she had spent some of her formative years as a child undergoing her education in the United Kingdom, having been brought over in circumstances beyond her control when she was only 13 years of age.

It was also accepted that the second applicant’s removal to Nigeria would constitute an interference with her private life because she would lose day to date contact with her adoptive family and friends, her education would be interfered with and she would be returning to a very different culture and environment than that in which she had lived for some time.

However, the Immigration Judge found that any interference in her private life would be proportionate to the legitimate aim of maintaining immigration control because, inter alia, she was an immigration over-stayer; the period of nine years that she had spent in the United Kingdom was not in itself sufficient to make her removal disproportionate; her adoptive family had extended family in Nigeria who could provide her with support so that she would not be destitute; and her adoptive family would maintain contact with her, even in Nigeria, given their continuing links to that country and the availability of modern means of technology. The Immigration Judge acknowledged that the case was different from the case of an ordinary adult over-stayer because the second applicant had arrived in the United Kingdom at a young age in circumstances beyond her control. Nevertheless, even accepting that for her first five years in the United Kingdom decisions about her immigration status were not hers to make, it was noted that, in 2002, she had stated that she wanted to stay in the United Kingdom and, more importantly, she had remained in the United Kingdom and had continued to build up her private life after her majority at a time when she had been in a position to make her own decisions and when she had been aware that she had no lawful right to remain in the United Kingdom. Given that the second applicant was a relatively well educated young woman whose personal references showed that she had a strong character and was a capable young lady, the Immigration Judge considered that there was no reason why she could not recreate her private life in Nigeria with the assistance of her adoptive family’s extended family.

On 31 October 2011, the First-tier Tribunal refused her application for permission to appeal to the Upper Tribunal noting, inter alia, that it had been a matter for the Immigration Judge what weight she placed on the fact that the second applicant was an over-stayer. The Immigration Judge had conducted a thorough balancing exercise under Article 8 and her conclusions had been open to her.

On 30 November 2011, the Upper Tribunal refused her application for permission to appeal considering that the Immigration Judge appeared to have gone through the relevant questions to be addressed when assessing proportionality and had had particular concern about the age of the second applicant when she had arrived. The weight to be given to the various factors was a matter for the Immigration Judge.

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 were, until 13 February 2010, heard by the Asylum and Immigration Tribunal. Since 14 February 2010, they have been 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 13 of the Tribunals, Court and Enforcement Act 2007 provides a right of appeal to the Court of Appeal on any point of law arising from a decision made by the Upper 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.

COMPLAINTS

The first applicant complains under Article 8 of the Convention that his proposed removal to Zimbabwe would be a disproportionate interference with his rights to private life in the United Kingdom. Furthermore, he complains under Article 13 of the Convention that he had no effective remedy in relation to the alleged violation of Article 8 of the Convention.

The second to ninth applicants complain under Article 8 of the Convention that the second applicant’s removal to Nigeria would be a disproportionate interference with their rights to family and private life in the United Kingdom.

QUESTION TO THE PARTIES

Would the first applicant’s removal from the United Kingdom to Zimbabwe and/or the second applicant’s removal to Nigeria constitute a proportionate interference with their rights to respect for family and/or private life contrary to Article 8 of the Convention?