YESUFA v. THE UNITED KINGDOM
Inadmissible
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
The applicant, Mr Ayodeji Yesufa, is a Nigerian national who was born in 1984. He currently lives in Nigeria. He was represented before the Court by Doves Solicitors, a firm of solicitors practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant and his brother arrived in the United Kingdom in 1987 to join their father, who was resident there, and their sister, who was born in the United Kingdom and was a British citizen. When the applicant’s father died in 1995 his mother came to the United Kingdom to care for him. On 14 August 2000 the applicant was granted Indefinite Leave to Remain as a dependant of his mother. Shortly after the death of his father, the applicant began to mix with older children and he started to commit criminal offences. When he was approximately twelve years old he was expelled from school. Between August 1998 and September 2003 he accumulated twenty-six criminal convictions arising from fifteen sentencing hearings for offences including criminal damage, driving whilst uninsured, receiving stolen goods, possession of a Class B drug (cannabis), common assault and burglary. The maximum sentence that he received was a twelve month detention and training order. On 14 December 2004 the applicant was convicted of robbery. On 19 January 2005 was sentenced to four years’ imprisonment. In two separate incidents the applicant and a number of accomplices had stolen GBP 80 and some alcoholic beverages from an off-licence and four items of jewellery from a pawn brokers. During the second incident the applicant and his accomplices were armed with iron bars. On 30 January 2006 the Secretary of State for the Home Department wrote to the applicant asking him to submit reasons why he should not be deported following his conviction on 14 December 2004. His representations were considered but the Secretary of State concluded that his deportation would be conducive to the public good. That decision was issued to the applicant on 18 February 2006. He appealed to the Asylum and Immigration Tribunal (“AIT”). On 26 April 2006 the Immigration Judge dismissed the appeal, holding, inter alia, that the decision appealed against would not cause the United Kingdom to be in breach of the law or its obligations under the Convention as the applicant did not enjoy family life in the United Kingdom and there were no insurmountable obstacles to his mother and brother returning to Nigeria with him. The AIT found no error of law in the Immigration Judge’s decision and refused to make an order for reconsideration. In an undated decision the Administrative Court ordered the AIT to reconsider the Immigration Judge’s decision on the ground that the judge had erred in law in finding that the applicant’s family could be expected to return to Nigeria with him. On reconsideration, the AIT accepted that the applicant had established both family and private life in the United Kingdom but held that any interference was not a disproportionate exercise of the Secretary of State’s discretion to make a deportation order. On 8 August 2007 the AIT refused to grant the applicant leave to appeal to the Court of Appeal. The applicant was released on licence on 5 January 2007. He subsequently was convicted of a further eight offences, including carrying a lock knife in a public place, breaching bail conditions, possession of a Class A drug and motoring offences. On 22 October 2008 the applicant was deported to Nigeria. On 15 September 2009 the applicant indicated for the first time that he had been in a ten-year relationship with a British citizen, who had given birth to their child on 7 June 2009. Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Section 3(5)(a) of the same Act (as amended 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. Sections 82(1) and 84(1)(a) of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against a decision to deport, inter alia, on the grounds that the decision is incompatible with the Convention and that it was not in accordance with the Immigration Rules. The Rules relating to the revocation of a deportation order are contained in paragraphs 390 and 391 of the Immigration Rules HC 395 (as amended), supplemented by Chapter 13 of the Immigration Directorate’s Instructions (“IDIs”). There is no specific period after which revocation will be appropriate although Chapter 13 of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal. Cases which will normally be appropriate for revocation three years after deportation include those of overstayers and persons who failed to observe a condition attached to their leave, persons who obtained leave by deception, and family members deported under section 3(5)(b) of the Immigration Act 1971. With regard to criminal conviction cases, the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “spent” under section 7(3) of the Rehabilitation of Offenders Act 1974. Paragraph 391 of the Rules, however, indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course. This is expanded on in Annex A to Chapter 13 of the IDIs, which indicates that revocation will not normally be appropriate until at least 10 years after departure for those convicted of serious offences such as violence against the person, sexual offences, burglary, robbery or theft, and other offences such as forgery and drug trafficking.