Balogun v UK  ECHR 614 – Read judgment
It has been a week of victories for the UK government in deportation cases in the European Court of Human Rights. On the same day as the ECtHR found that Abu Hamza and four others could be extradited to the US on terrorism charges, it also rejected a case of a man facing deportation despite having lived in the UK since the age of three.
The applicant, born in 1986, had a number of criminal convictions. The Court accepted that he had been in the UK since the age of three, although he had only acquired indefinite leave to remain in December 2003. In 2007 he pleaded guilty to possession of Class A drugs with intent to supply. He was jailed for three years and later in 2007, he was given notice that the Secretary of State intended to have him deported to Nigeria, as he is a Nigerian national.
The Immigration Act 1971 section 3 allows the Secretary of State to have people in the UK deported, who are not British citizens, if the Secretary of State deems that to be conducive to the public good. However, this can be appealed under the Nationality, Immigration and Asylum Act 2002 on the basis that deportation would be in breach of the European Convention on Human Rights.
The applicant pursed his case appealing against deportation in the Asylum and Immigration Tribunal, where he lost, he subsequently appealed to the Secretary of State to revoke his deportation order on human rights grounds, which was refused, and applied to the High Court to review this decision, which again he lost but he did not renew his application. He applied to the ECtHR to hear his case.
The applicant subsequently informed the Secretary of State that he had attempted suicide, prior to the High Court application, although he had not mentioned this in the High Court proceedings. He had medical evidence to support continuing moderate depression.
The applicant argued that deportation would breach the ECHR in two ways:
• Article 3 (which prohibits torture, inhuman and degrading treatment) would be violated, given his suicide risk;
• Article 8 (the right to respect for private and family life) would also be breached.
The Government argued that the applicant had failed to exhaust remedies available domestically, having failed at various points to argue that he was a suicide risk (which would mean he could have raised article 3). He had also failed to renew his judicial review application. Further, measures had been put in place at his detention centre to take into account his suicide risk. Special precautions would be taken if he were deported to ensure his protection during that process. In Nigeria, sufficient psychiatric treatment was available to meet his needs.
The applicant argued that deporting him, when he was at risk of suicide, would breach article 3. He had not raised his suicide risk earlier, because it had only arisen after his application to revoke the deportation order was refused, and that was not an appealable decision. His first suicide attempt was on the same day as his judicial review application was lodged and he had brought the matter to the High Court and Secretary of State’s attention through letters. He had also made a second suicide attempt.
The Court was not persuaded there would be an article 3 breach if the appellant was deported. The government had outlined appropriate steps it would take upon the deportation being actioned, to protect the appellant from the risk of suicide and could be relied upon to take those steps.
More controversial was the Court’s position on article 8. The applicant argued that he enjoyed family life in the UK, having come here aged three, having various relatives living here and being in a relationship with a girlfriend since 2005. He further argued that his history of criminal offending was not so serious that deportation was proportionate and he claimed to have learned his lesson, and to intend to lead a law-abiding life.
On the other hand, the government disputed his claim to enjoy family life. He was not part of a family unit, being an adult. The Tribunal had made findings that his relationship with his girlfriend was “not sufficiently settled, serious or long-term to amount to family life” (paragraph 41). It did accept that his private life would be interfered with, but argued that this was justified, given that it was in accordance with the law and in pursuit of legitimate aims: “protecting public safety, the prevention of crime, and the protection of the rights and freedoms of others” (paragraph 42). The deportation would be proportionate, given that the offences he had committed were serious, it argued. It also argued that he could re-establish his private life in Nigeria as his mother lived there.
The Court noted that,
… it will be a rare case where a settled migrant will be unable to demonstrate that his or her deportation would interfere with his or her private life as guaranteed by Article 8” (paragraph 43).
The Court also noted that the age of a person may be relevant to the question of whether interference with private or family life is necessary in a democratic society:
…when assessing the nature and seriousness of the offences committed by an applicant, it has to be taken into account whether he or she committed them as a juvenile or as an adult. The age at which the person entered the host country is also of relevance, as is the question of whether they spent a large part or even all of their childhood in that country … for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion. (Paragraph 46)
The Court was not persuaded that the applicant enjoyed family life in the UK. It accepted the Tribunal’s findings in relation to his girlfriend and relatives in the jurisdiction as being insufficient to constitute family life.
There was no dispute that his private life was interfered with and in pursuit of the legitimate aim of the prevention of crime, but the Court also found that it would ne necessary in a democratic society. It stressed the seriousness of his latest offence, the fact that he had previous offences and all but one of them were committed over the age of 18.
The Court did accept the applicant’s account of the length of his stay in the UK, namely since he had been three years old. Although he had only lived legally in the UK since late 2003, it needed to find very serious reasons for his expulsion to be justified.
The main tie with Nigeria was that the applicant’s mother lives there:
The applicant claims not to be in contact with his mother or to have any knowledge of her whereabouts, and given that he does not appear to have lived with her since his arrival in the United Kingdom, the Court accepts that this is not a strong familial tie. However, it is one that could be pursued and strengthened by the applicant if he chose. (Paragraph 51)
But given his estrangement from the aunt with whom he lived in the UK as a child and the relative lack of ties he had with other family members in the UK, “The applicant’s family ties in both the United Kingdom and Nigeria can therefore be characterised as limited” (paragraph 51). The Court did recognise that the applicant’s “social and cultural ties to his host country are undoubtedly stronger than those to Nigeria” (paragraph 51).
The Court found that there were very serious reasons making deportation justified and proportionate:
the Court has paid specific regard to the applicant’s history of repeated, drugs-related offending and the fact that the majority of his offending was committed when he was an adult, and also to the careful and appropriate consideration that has been given to the applicant’s case by the domestic authorities. (Paragraph 53)
In a separate but concurring opinion of Judge de Gaetano, he stressed that,
“the decisive factor… is the seriousness of the offences committed after the applicant had become an adult. The applicant knew perfectly well that, although he could be considered as a settled migrant, as an alien he had no “absolute right” to stay in the United Kingdom, and he must have known that in the event of serious brushes with the law, he risked being expelled.” (Paragraph 3)
The dissenting judgment of Judges Garlicki and David Thόr Bjőrgvinsson contains some interesting reasoning. In disagreeing with the majority, these judges stressed the youth of the applicant when he committed his offences, even if some were committed after his eighteenth birthday and the view that he had “no meaningful social, cultural or familial ties with [Nigeria]” (sixth unnumbered paragraph). It was critical of a finding that he could have familial ties with his mother in Nigeria, on the basis that these could be developed, because such an argument for having familial ties in the UK would not be accepted.
Impact of the decision
This case was overlooked in the wake of the coverage of the Abu Hamza decision of the same day, but it is another sign of a possible toughening up of the ECtHR’s stance on article 8 cases of late. This will please the UK’s Home Secretary, who in any event has recently announced that the domestic rules on family life exceptions to deportations are shortly to be toughened up (although asylum and immigration judges may not agree). Nonetheless, this finding that a young adult, resident in the UK since the age of three, can be deported despite his private life ties to this state and very few ties to the recipient state is striking.
The decision might however be appealed, which the applicant will need to apply for in the next three months. If he takes this course, there may be more thought-provoking input from the Grand Chamber on what is a controversial case.
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