FOURTH SECTION

CASE OF JOSEPH GRANT v. THE UNITED KINGDOM

( Application no. 10606/07 )

JUDGMENT

STRASBOURG

8 January 2009

FINAL

05/0 6 /2009

This judgment may be subject to editorial revision.

In the case of Joseph Grant v. the United Kingdom ,

The European Court of Human Rights ( Fourth Section ), sitting as a Chamber composed of:

Lech Garlicki , President, Nicolas Bratza , Giovanni Bonello , Ljiljana Mijović , Ján Šikuta , Mihai Poalelungi , Nebojša Vučinić , judges, and Fatoş Aracı , Deputy Registrar ,

Having deliberated in private on 2 December 2008 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 10606/07) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Jamaican national, Mr Joseph Nikita Grant (“the applicant”), on 5 March 2007 .

2 . The applicant, who had been granted legal aid, was represented by Mr Simon Purchas of Harrison Bundey , a lawyer practising in L eeds . The United Kingdom Government (“the Government”) were r epresented by their Agent, Mr John Grainger , of the Foreign and Commonwealth Office .

3. On 21 March 2007 the Acting President of the Fourth Section decided to give notice of the application to the Gove rnment. I t was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3) .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in Jamaica on 15 September 1960 and he is currently living there again.

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

6. The applicant and one of his two brothers arrived in the United Kingdom in 1974 to join their mother who was already there. His brother was granted British citizenship in 2004. A third brother was born in the United Kingdom . His mother and two brothers continue to live in the United Kingdom . He has no surviving relatives in Jamaica .

7. In 1983 the applicant had a son , Leon, by a British national. He has a grandchild by this son. In 1984 the applicant had a second son , Ryan, by a second British woman. Also in 1984 he began a relationship with a third British national which lasted tw elve years. They had a daughter, Naomi, who has born in 1996 and is now twelve years of age. During this time the applicant had a third son , Nathan, by another woman. Nathan is now eighteen years of age.

8. Although the applicant has never lived with any of his children, he claims that he is in regular contact with all of them and in particular sees his daughter on average three times a week. Alt hough she i s now married, the applicant remains in contact with the mother of his daughter.

9 . The applicant was first convicted on 17 July 1985, when he was fined GBP 15 for shoplifting. The following year he was fined a further GBP 25 after a second conviction for shoplifting , and in 1988 he was fined GBP 100 following convictions for criminal damage and assaulting a police officer . On 21 September 1989 the applicant was convicted of supplying a controlled drug. He was sentenced to 15 months ’ imprisonment. Following this sentence, the applicant was considered for deportation by the Secretary of State for the Home Department. Following representations by the applicant that the drug in questio n was cannabis with a value of GBP 3 (equivalent to EUR 5 ), on 14 March 1990 the Secretary of State wrote to the applicant advising him that deportation action would not be pursued and warning him that if he came to the adverse notice of the Immigration Service in the future his deportation would again be considered.

1 0 . The applicant subsequently became addicted to heroin. Between 30 December 1991 and 24 May 2006 he was convicted 3 2 times for 5 2 offences , including driving offences, assaulting a police officer , assault occasioning actual bodily harm, criminal damage, possession of an offensive weapon, possession and supply of controlled drugs and theft. The applicant received sentences o f fines, suspended sentences, community service orders and occasionally prison sentences which at no time exceeded twelve months . He maintains that these convictions were connected with his drug abuse and, while they included convictions for the possession of crack cocaine and heroin and theft in order to feed his drug habit, he has never sold drugs.

1 1 . On 29 January 2003 he pleaded guilty to robbery at Leeds Crown Court. In sentencing the applicant, the trial judge noted that the normal sentence for robbery would have been three to four years ’ imprisonment but, given the facts in the case and the applicant ’ s guilty plea, he imposed a sentence of twelve months ’ imprisonment. He made no recommendation regarding the applicant ’ s deportation from the United Kingdom .

1 2 . On 24 April 2006, at Leeds Magistrates ’ Court, the applicant was convicted of three counts of theft and breach of a conditional discharge for possessing a controlled drug.

1 3 . On 30 May 2006 the Secretary of State for the Home Department made a deportation order against the applicant stating that, in view of his conviction for robbery of 29 January 2003, it was conducive to the public good to do so.

1 4 . The applicant appealed to the Asylum and Immigration Tribunal ( “ the AIT ” ), relying , inter alia , on Article 8 of the Convention. He argued that, in light of his extensive private and family life in the United Kingdom and the length of his stay there, the decision to deport him was a violation of Article 8. In its determination of 19 October 2006, the AIT dismissed the applicant ’ s appeal. It accepted that the applicant enjoy ed family life in the United Kingdom but held that the relevant judgments of the European Court of Human Rights finding a violation of Article 8 in deportation cases could be distinguished on the facts. The AIT concluded:

‘ We therefore consider that, although there will be a breach of the Appellant ’ s family life if deported to Jamaica , this will not be disproportionate in terms of being conducive to the public good. ’

1 5 . The applicant applied for reconsideration of the AIT ’ s decision. On 6 November 2006, a Senior Immigration Judge refused the application, holding that the AIT had clearly considered the applicant ’ s contact with all his children and was well aware of the length of time the applicant had been living in the United Kingdom . She found the AIT ’ s reasons to be adequate, proper and intelligible.

1 6 . The applicant ’ s application for statutory review was dismissed by the High Court on 31 January 2007. On 12 November 2007 the applicant was deported to Jamaica .

II. RELEVANT DOMESTIC LAW

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

2 0 . The applicant complained that the decision to deport him constituted an unjustified interference with his right to respect for his private and family life as provided in Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

2 1 . The Government contested that argument.

A . A dmissibility

2 2 . The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B . M erits

2. The Court ’ s assessment

(a) Was there an interference with the applicant ’ s right to respect for his family and private life?

30. It was common ground between the parties that the applicant ’ s deportation constituted an interference with his right to respect for his private life, and the Court endorses this assessment. The Court also considers that the applicant had established a family life in the United Kingdom with his youngest daughter . It is clear from the Court ’ s case - law that children born either to a married couple or to a co-habiting couple are ipso jure part of that family from the moment of birth and that family life exists between the child ren and the ir parents (see L. v. the Netherlands , no. 45582/99, § 35, ECHR 2004 ‑ IV) . Although co-habitation may be a requirement for such a relationship, however, other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto family ties ( Kroon and Others v. the Netherlands , 27 October 1994, § 30 , Series A no. 297 ‑ C) . Such factors include the na ture and duration of the parent s ’ relationship, and in particular whether they had planned to have a child; whether the father subsequently recognised the child as his; contributions made to the child ’ s care and upbringing; and the quality and regularity of contact (see Kroon , cited above, § 30 ; Keegan v. Ireland , 26 May 1994, § 45 , Series A no. 290 ; Haas v. the Netherlands , no. 36983/97, § 42 ECHR 2004 ‑ I and Camp and Bourimi v. the Netherlands , no. 28369/95, § 36, ECHR 2000 ‑ X) .

(b) “In accordance with the law”

(c) Legitimate aim

(d) “Necessary in a democratic society”

37 . The principal issue to be determined is whether the interference was “necessary in a democratic society”. The relevant criteria that the Court uses to assess whether an expulsion measure is necessary in a democratic society have recently been summarised as follows (see Ãœner v. the Netherlands [GC], no. 46410/99 , § § 57 - 58 , ECHR 2006 ‑ ... ):

“ 3 . Even if Article 8 of the Convention does not therefore contain an absolute right for any category of alien not to be expelled, the Court ’ s case ‑ law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision (see, for example, the judgments in Moustaquim v. Belgium, Beldjoudi v. France and Boultif v. Switzerland, [ cited above ] ; see also Amrollahi v. Denmark, no. 56811/00, 11 July 2002; Yılmaz v. Germany, no. 52853/99, 17 April 2003; and Keles v. Germany, 32231/02, 27 October 2005). In the case of Boultif the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria, as reproduced in paragraph 40 of the Chamber judgment in the present case, are the following:

- the nature and seriousness of the offence committed by the applicant;

- the length of the applicant ’ s stay in the country from which he or she is to be expelled;

- the time elapsed since the offence was committed and the applicant ’ s conduct during that period;

- the nationalities of the various persons concerned;

- the applicant ’ s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple ’ s family life;

- whether the spouse knew about the offence at the time when he or she entered into a family relationship;

- whether there are children of the marriage, and if so, their age; and

- the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.

4 . The Court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment:

- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and

- the solidity of social, cultural and family ties with the host country and with the country of destination.”

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible ;

2. Holds that there has been no violation of Article 8 of the Convention;

Done in English, and notified in writing on 8 January 2009 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Lech Garlicki Deputy Registrar President