CASE OF KHAN A.W. v. THE UNITED KINGDOM
Violation of Art. 8 (in case of deportation)
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant was born in 1975 in Pakistan. He entered the United Kingdom on 5 October 1978, when he was three years old, as a dependant of his father. He was granted indefinite leave to remain. He was educated in the United Kingdom and spent his formative years there. 6. On an unidentified date in 1993 he was found guilty of the theft of an insurance document. On an unidentified date in 1998 he was fined following a conviction for the use of a forged banker’s draft. 7. On 22 January 2003 he was convicted by a Crown Court of involvement in the importation of a class A controlled drug. The conviction related to the attempted importation of 2.5 kilograms of heroin with an estimated street value of GBP 210,470.00. The applicant pleaded guilty. In his sentencing remarks the judge noted that he was not the principal in the criminal activity but concluded that he was a “knowledgeable, able and willing assistant”. He was sentenced to seven years’ imprisonment but he was released on 3 April 2006 because of his good conduct in prison. 8. On 2 May 2006 the Secretary of State for the Home Department served on the applicant a notice of decision to make a deportation order pursuant to section 3 (5) of the Immigration Act 1971. The Secretary of State regarded as particularly serious those offences involving violence, sex, arson and drugs. Therefore, in view of the nature and severity of the applicant’s offence, the Secretary of State concluded that his removal from the United Kingdom would be necessary in a democratic society for the prevention of disorder and crime and for the protection of health and morals. 9. The applicant appealed to an Immigration Judge. He indicated that he had been in the United Kingdom since he was three years old and was not familiar with the culture in Pakistan. All of his immediate family were in the United Kingdom. His mother and his siblings were all in poor health and he was the main person who kept the house clean. His mother had diabetes and a heart condition. His siblings suffered from asthma and/or eczema. The applicant suffered from ulcerative colitis for which he received treatment in the United Kingdom. He therefore submitted that his removal would be disproportionate in the circumstances and would violate his rights under Article 8 of the Convention. 10. On 9 August 2006 an Immigration Judge dismissed the applicant’s appeal against the deportation order. He agreed that the applicant’s deportation would be conducive to the public good and that the crime he had committed was sufficiently serious to warrant deportation. With regard to the applicant’s family life in the United Kingdom, he found that it did not go beyond the natural ties of affection. In particular, he noted that the family had managed to cope without the applicant while he was in prison. He also found that the applicant would be able to adapt to life in Pakistan. He relied on the fact that he was an unemployed, single man of 28 years of age who, apart from having ulcerative colitis, was in good health. It was accepted that he could speak Punjabi. Moreover, the Immigration Judge observed that the medical evidence suggested that the applicant’s attendance at hospital for treatment of his ulcerative colitis had been inconsistent and he could therefore continue to attend hospital sporadically in Pakistan. 11. On 22 August 2006 the Asylum and Immigration Tribunal made no order on his application for reconsideration. A Senior Immigration Judge noted that the applicant had been sentenced to seven years’ imprisonment for his involvement in the importation of heroin and the Tribunal was entitled to find that this was a very serious matter and sufficiently serious of itself to warrant deportation. 12. On 8 November 2006 the High Court dismissed his application for reconsideration of the Immigration Judge’s decision as it did not disclose any arguable error of law and an appeal would have no real prospect of success. 13. On 4 August 2008 the applicant’s representative wrote to the Home Office, indicating that the applicant had been receiving death threats from one of his co-defendants in the drugs offence. The co-defendant was believed to be living in Pakistan. The applicant therefore submitted that if returned there was a real risk that his life would be in danger. He further submitted that in view of his mother’s ill health, if he were deported then in all likelihood he would not see her again. 14. On 11 September 2008 the Secretary of State for the Home Department advised the applicant that he would not consider the new representations as a fresh claim for asylum. In particular, the Secretary of State noted that the late asylum claim damaged the applicant’s credibility as the first threatening phone call was allegedly received in 2006. 15. In a letter dated 13 November 2008 the applicant advised the Court that his British girlfriend was pregnant and due to give birth to their child on 16 December 2008. He submitted a statement by his girlfriend, in which she confirmed that she was pregnant and stated that she had been in a relationship with the applicant since August 2005. On 16 April 2009 the applicant advised the Court that his girlfriend had given birth to a baby girl. He subsequently submitted a birth certificate, which named him as the father. 16. Section 3(5)(a) of the Immigration Act 1971 (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 for the Home Department deems his deportation to be conducive to the public good. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision on the grounds, inter alia, that the decision is incompatible with the Convention. 17. 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. 18. The Rules relating to the revocation of a deportation order are contained in paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended), supplemented by Chapter 13 of the Immigration Directorates Instructions (“IDIs”). There is no specific period after which revocation will be appropriate although Annex A to 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 3 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 would 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.