CASE OF NDIDI v. THE UNITED KINGDOM
No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Nigeria)
Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant and his mother entered the United Kingdom on 13 July 1989 and were granted six months’ leave to enter as visitors. Following the expiry of their leave they remained in the United Kingdom as overstayers. 6. The applicant’s father entered the United Kingdom in 1991. 7. The applicant’s siblings were born in the United Kingdom on 20 November 1993 and 11 January 1995. 8. On 5 June 1995 the applicant’s mother claimed asylum on undisclosed grounds. The applicant and his two siblings were named dependents on that claim. The Secretary of State for the Home Department refused the asylum claim on 15 April 1998. Following a reconsideration of the case in August 1999, the Secretary of State again refused the asylum claim but granted the family four years’ exceptional leave to remain in the United Kingdom. 9. In March and November 1999 the applicant, who was then twelve years old, received police cautions for offences of assault occasioning actual bodily harm and robbery. 10. On 7 February 2003 he was convicted of robbery and assault occasioning grievous bodily harm. 11. On 21 August 2003 the applicant, his mother and his siblings were granted indefinite leave to remain in the United Kingdom. His mother and siblings have since become British citizens. 12. On 16 December 2003 the applicant was convicted of disorderly behaviour or using threatening/abusive/insulting words likely to cause harassment, alarm or distress. He was fined GBP 50.00. 13. On 3 March 2004 he was convicted of burglary, theft and impersonating a police officer. He was sentenced to a community punishment order of two hundred hours. 14. On 26 November 2004 the applicant was convicted of robbery and was sentenced to three years’ detention in a Young Offenders’ Institution. 15. In or around this time the Secretary of State considered instigating deportation proceedings against the applicant. On 30 June 2006 he decided not to pursue such proceedings owing to the length of his residence in the United Kingdom. However, he warned him that should he come to the adverse attention of the authorities through criminal offending in the future, he could be liable to deportation. 16. In 2006 the applicant’s father was granted indefinite leave to remain in the United Kingdom. 17. On 11 July 2008 the applicant pleaded guilty to the supply of Class A drugs. On 20 March 2009 he was sentenced to seven years’ imprisonment. The sentencing judge addressed him in the following terms: “this case has been a copy-book example of how people in your position are able to continue to operate outside the law by the use of interchangeable street names, preying upon the most vulnerable addicts and by the indiscriminate use of fear and violence to ensure that no-one informs the police of your criminal activities ... Your evidence to the jury was that you were the main man for drugs in Swindon ... Your nickname of ‘Bruiser’ ensured that when the ‘workers’ as you called those who sold drugs on your behalf, ‘messed up’ it was your policy, to use your own words, of ‘roughing them up a little bit’. You told the jury, with some satisfaction, that this policy was successful ... I regard you as close to the source of supply and wholesaling to retailers in Swindon on a persistent and regular basis.” 18. The applicant’s appeal against conviction and sentence was dismissed on 19 June 2009. However, on 9 February 2010 the Court of Appeal substituted the applicant’s sentence of seven years’ imprisonment with one of seven years’ detention in a Young Offenders’ Institution. While in detention he received sixteen adjudications, which included the use of threats and abusive behaviour, disobeying lawful orders, fighting with other inmates, and attempting to commit/incite another inmate to commit assault on staff. 19. He was released on licence on 3 March 2011. 20. Pursuant to section 32(5) of the United Kingdom Borders Act 2007 (“the 2007 Act”), the Secretary of State was required to make a deportation order in respect of foreign criminals sentenced, inter alia, to a period of imprisonment of at least twelve months, unless one of the exceptions in section 33 – namely that removal would breach their rights under either the Refugee Convention or the European Convention on Human Rights – applied (see paragraphs 52 and 53 below). 21. On 6 April 2010 the Secretary of State notified the applicant of his liability to automatic deportation and asked him to submit reasons why he should not be deported. His representatives responded to that letter; however, on 2 March 2011 he was served with both a deportation order dated 23 February 2011, and a decision that section 32(5) of the 2007 Act applied (that is, he was liable to automatic deportation and removal would not breach his rights under either the Refugee Convention or the European Convention on Human Rights). 22. In a section of the decision headed “Consideration under ECHR”, the Secretary of State had regard to her obligations under Article 8 of the Convention. Although she accepted that the applicant had family ties in the United Kingdom with his mother, father, brother and sister, in the absence of further elements of dependency she found that these ties did not constitute family life. She did accept that he enjoyed private life in the United Kingdom but did not consider that his removal would be disproportionate to the legitimate interest of preventing disorder and crime. In particular, she noted that he had an elderly grandmother in Nigeria and as an adult he could be expected to readjust to life there. Furthermore, as English was one of the official languages of Nigeria, he would not face a language barrier on return. Finally, she had regard to the seriousness of his criminal record, the sixteen adjudications he had received while in detention, and the fact that he had been warned about the risk of reoffending in 2006. She therefore concluded that his deportation would not be in breach of Article 8 of the Convention. 23. The applicant appealed against this decision. In support of his appeal, he submitted a report by Dr B., a consultant forensic psychiatrist. The report indicated that he suffered from dyslexia; that he had developed Adolescent Conduct Disorder which could manifest itself in antisocial behaviour but was not inevitably associated with continued offending in adult life; and that although he presented a medium risk of reoffending, there existed a number of positive factors which would decrease the likelihood of continued criminal involvement, including his family’s abstention from criminal activity, his sustained and supportive parental relationships, his wish to improve himself, and the absence of substance misuse. 24. On 8 June 2011 the First-tier Tribunal (IAC) allowed the applicant’s appeal on Article 8 grounds, having found that his deportation would be neither proportionate nor necessary in a democratic society. It found that the applicant did enjoy family life with his parents and younger siblings, his unfortunate history having resulted in a particular dependency on them, since he required their support to “help him to change from being a criminal offender to an employed adult and useful member of society”. In addition, it found that he had also established a private life in the United Kingdom; that he had no experience of living in Nigeria, save for a short period as a baby and a two week holiday in 2004; that he had no close relatives in, and no ties to, Nigeria; that he had indicated his remorse and given assurances that he would not offend again; and that his working and studying whilst in detention supported those assurances. 25. The Secretary of State was granted permission to appeal on 24 June 2011. 26. On 31 October 2011 the Upper Tribunal (IAC) found there to have been a material error of law in the decision of the First-tier Tribunal. The decision was set aside in its entirety and the case submitted for a full rehearing before the Upper Tribunal. 27. On 24 April 2012 the Upper Tribunal dismissed the applicant’s appeal against the deportation order. 28. The Tribunal considered the principles established by this Court in Boultif v. Switzerland, no. 54273/00, ECHR 2001IX, Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006XII and Maslov v. Austria [GC], no. 1638/03, ECHR 2008. In its view, the single most compelling factor in the applicant’s favour was the length of his residence in the United Kingdom. It also had regard to his family ties. Although it did not accept that there was any additional element of dependency which would enable it to find the existence of family life for the purposes of Article 8 of the Convention, it nevertheless accepted that the applicant’s parents and siblings were an important part of his private life. 29. Balanced against his long residence and established private life, the Tribunal considered the applicant’s criminal record. It noted that he had a long history of offending, beginning at the age of twelve; that he had received fair warning from the Secretary of State in 2006 that any further offending would not be tolerated; that notwithstanding that warning and the subsequent assurances given to the Secretary of State that he was turning his life around, he was already engaged in drug dealing; that his criminal behaviour had not only continued but had also escalated; that whilst serving his most recent sentence, he had received sixteen adjudications, the majority of them for violence and disobedience; that his problems with dyslexia could not be used as an excuse to justify his poor behaviour and repeat offending; and that whilst the majority of his offending had occurred when he was a child, his most recent and most serious had occurred after he had attained his majority. 30. With regard to the issue of future offending and risk to the public, the Tribunal found it difficult to accept his assurances that he had had a genuine change of heart and no longer posed a risk to the public. He had made similar assurances when faced with deportation in 2006, and since his criminal associates were in prison the fact that he did not see them was not a weighty factor indicating a lifestyle change. Furthermore, there was no evidence that either of his parents would be able to exert any positive influence over him, as they had been unable to do so in the past. Although he was in employment on a probationary period, there was no evidence of a contingency plan should he not progress into more secure employment. 31. Therefore, whilst accepting that the applicant’s removal would be difficult, the Tribunal concluded that he was of an age where he could be expected to “stand on his own two feet and make a life for himself”. His family could visit him in Nigeria and there was evidence to suggest that he had a number of relatives living there. The Tribunal further noted that he had no girlfriend or children in the United Kingdom, he was in good health, and he would not face any language difficulties as there was a universal use of English in Nigeria. Consequently, the Tribunal concluded that in spite of his long residence and family circumstances, serious reasons (as required by this Court in Maslov, cited above, § 75) existed to justify the applicant’s expulsion, and that the public interest in effecting deportation outweighed his Article 8 rights. 32. On 21 June 2012 the Upper Tribunal refused to grant the applicant permission to appeal. The Court of Appeal similarly refused permission to appeal on 12 September 2012, and again on 30 October 2012 following an oral hearing. It found that although the case had required a difficult and delicate balancing exercise, the Upper Tribunal had provided a thorough and careful determination, and the conclusion reached was one which had been open to it. 33. On 9 July 2012 the Secretary of State amended the Immigration Rules (see paragraphs 54-57 below). In so far as relevant, the new Rules (which have since been further amended) provided that the deportation of foreign criminals would be conducive to the public good if they were sentenced to four or more years’ imprisonment. In such cases, the public interest would only be outweighed in “exceptional circumstances”. 34. On 9 November 2012 and 14 November 2012 the applicant submitted further representations to the Secretary of State based on his fourteen-month relationship with a British national, who had no connection to Nigeria, and the birth of their son on 1 October 2012. The Secretary of State treated those representations as an application to revoke the deportation order and refused it on 3 January 2013. She also certified the applicant’s claim, which meant that he was not afforded an automatic incountry right of appeal. 35. On 14 January 2013 the applicant sought permission to apply for judicial review of the Secretary of State’s decision to certify his claim. Along with his application, he provided medical evidence that his son required an operation in March 2013 to correct an umbilical hernia, and that he had been diagnosed with respiratory syncytial virus and bronchiolitis. 36. On 19 February 2013 the Secretary of State agreed to withdraw the certification decision and to issue a new decision taking account of the applicant’s further representations of November 2012 and those lodged with the judicial review application in January 2013. 37. The Secretary of State considered the applicant’s further representations in light of the amended Immigration Rules. In a decision dated 11 April 2013, she refused to revoke the deportation order since there were no “exceptional factors” which outweighed the public interest. In particular, she noted that the applicant had entered into a relationship in the full knowledge of the intention to deport him; that both the applicant and his partner should have been fully aware of the implications of conceiving a child in those circumstances; that no valid reason had been given to explain the applicant’s failure to make submissions regarding his relationship at either the Upper Tribunal hearing in April 2012 or the Court of Appeal hearing on 30 October 2012; that if the applicant’s partner wished to continue the family unit in Nigeria, suitable medication would be available in that country to treat their son’s bronchiolitis condition; that there was no evidence of any exceptional, compelling or compassionate factors; and that deportation remained a proportionate response to the applicant’s serious criminal offending. 38. The applicant appealed. He submitted a number of documents in support of his case, including a further psychiatric report by Dr B. dated 17 July 2013. The report indicated that he had continued to make progress in adopting a “pro-social lifestyle”, that he had addressed his tendency to violence, that he no longer had any criminal associates, that he had demonstrated a commitment to his partner and their son, that he had secured employment, and that the risk of re-offending and of harm to the public was very low. 39. The First-tier Tribunal, having heard oral evidence from the applicant, his partner, mother, father, brother and sister, and having considered the evidence before it, dismissed the applicant’s appeal on 16 September 2013. 40. Using a two-stage approach, the Tribunal first considered the applicant’s case under the Immigration Rules. It noted that the applicant’s most recent conviction was for a serious offence which had attracted a sentence of seven years’ detention; that following the amendment of the Immigration Rules, “exceptional circumstances” would be required to prevent deportation; and that those “exceptional circumstances” were inextricably bound up with the applicant’s Article 8 rights. 41. In this regard, the Tribunal recalled that the applicant’s family and personal circumstances had been examined with the most careful and thorough consideration by the Upper Tribunal in 2012. It had considered them in the context of the exceptionality requirements set out in Maslov (the requirement of “very serious reasons” to justify the expulsion of a settled migrant: see Maslov, cited above, § 75) and concluded that his deportation was justified. The Tribunal noted, however, that the applicant’s personal circumstances had since changed. It therefore gave careful consideration to his two-and-a-half-year relationship with his partner and the birth of their child. Nevertheless, it concluded that neither the relationship nor the birth of the child amounted to an “exceptional circumstance” within the context of the Immigration Rules. Although it accepted that there would be an inevitable interference with the family life said to exist between the applicant, his partner and their child, it found there to be nothing “exceptional” about this. Consequently, the Tribunal did not consider that his family and personal circumstances amounted to the “exceptionality” required by the Immigration Rules. 42. The Tribunal moved on to consider Article 8 as a separate issue, having regard to the findings of the Upper Tribunal in 2012. It agreed with the Upper Tribunal that language would not be an obstacle for the applicant since English was widely spoken in Nigeria. It further noted that while the evidence as to the existence of family in Nigeria was somewhat confusing, it was perhaps not of fundamental importance for an adult quite capable of standing on his own two feet; that the applicant would continue to receive support from his parents following his removal to Nigeria; and that his parents could visit him there as often as they wished. 43. In respect of the applicant’s relationship with his partner and their child, it observed that he had failed to disclose his immigration status to his partner until after she had fallen pregnant; that he and his partner had never lived together; that his partner and child had the full support of her family in the United Kingdom, with whom they lived, and that support would continue following the applicant’s deportation; and that his child could visit him in Nigeria and maintain such a relationship as deemed appropriate. Therefore, having carefully considered the issue of proportionality, including “section 55 [of the Borders, Citizenship and Immigration Act 2009 – see paragraph 60 below] and the best interests of the Appellant’s child”, the Tribunal concluded that the Secretary of State had a legitimate interest in maintaining appropriate immigration control and social order within the United Kingdom, and that the interests in effecting the applicant’s deportation were not outweighed by his Article 8 rights. 44. The applicant sought permission to appeal on the ground that the Tribunal had erred in concluding that his circumstances were not “exceptional” for the purposes of the Immigration Rules. The First-tier Tribunal refused permission to appeal on 4 October 2013. The applicant made a further application for permission to appeal to the Upper Tribunal, raising the same grounds as before the First-tier Tribunal. In addition, he also submitted that the application raised an important point of principle: namely, whether the decision of the Tribunal was contrary to the principle of double jeopardy, or constituted discriminatory punishment, since a British national could not be excluded from the United Kingdom. On 23 October 2013 the Upper Tribunal refused the application for permission to appeal. Both Tribunals found that the applicant’s grounds sought, in essence, to reargue the merits of the appeal and that no error of law had been disclosed. 45. The applicant then sought permission to apply for judicial review of the Upper Tribunal’s refusal of the application for permission to appeal. Following the Supreme Court judgment in R (on the application of Cart) v. The Upper Tribunal; R (on the application of MR (Pakistan)) v. The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department [2011] UKSC 28, the Administrative Court could only review decisions of the Upper Tribunal if the “second appeal” test was satisfied; that is, if the appeal raised an important point of principle, or there was another compelling reason to allow it to succeed. In the present case the applicant once again submitted that the “double jeopardy” argument raised an important point of principle. However, on 6 December 2013 the Administrative Court refused the application for permission to apply for judicial review. In refusing permission the judge expressly stated that while it was “apparent that different views might reasonably be taken about whether the Claimant should be permitted to remain in the UK in the light of his family ties and length of residence”, that was “not the test for the grant of permission”. 46. Following the refusal of the application for permission to apply for judicial review, the applicant had no right to renew the application at an oral hearing in the Administrative Court. However, it would have been possible for him to apply to the Court of Appeal for permission to appeal against the Administrative Court’s decision. 47. Removal directions scheduled for 20 January 2015 were cancelled owing to the absence of a valid travel document. 48. On 18 March 2015 the applicant advised the Court that his relationship with his partner had broken down and that he had court-ordered direct contact with his son on alternate Saturdays. 49. On 4 August 2015 the Secretary of State advised the applicant that an application to the Nigerian authorities for a travel document, required to effect his deportation from the United Kingdom, was pending.