FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7347/08 by Ayodeji YESUFA against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 26 January 2010 as a Chamber composed of:

Lech Garlicki , President, Nicolas Bratza , Giovanni Bonello , Ljiljana Mijović , Ján Šikuta , Mihai Poalelungi , Nebojša Vučinić , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 30 January 2008,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

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, M r D. Walton of the Foreign and Commonwealth Office .

A. The circumstances of the case

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 3 0 January 2006 the Secretary of State for the Home Department wrote to the applicant asking him to submit reasons why he shoul d 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 exer cise 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.

B. Relevant domestic law and Practice

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 ar e contained in paragraphs 390 and 39 1 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 w ill 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.

COMPLAINT

The applicant complained under Article 8 of the Convention that his deportation violated his right to respect for his private and family life.

THE LAW

1 . The Government

The Government submitted that the applicant had not exhausted domestic remedies as required by Article 35 of the Convention because he did not renew his application for leave to appeal from the decision of the Asylum and Immigration Tribunal to the Court of Appeal.

Alternatively, the Government submitted that the applicant ’ s complaint under Article 8 of the Convention was manifestly ill-founded as his deportation did not violate his right to respect for his family and private life. The Government accepted that the applicant had lived in the United Kingdom for twenty-two years and that his deportation interfered with his rights under Article 8 of the Convention. Nevertheless, when the order to deport the applicant was made, he had twenty-six convictions which dated from 1998. These included convictions for theft, attempted theft, handling stolen goods, burglary with intent to steal, possession of cannabis, criminal damage, assault and three convictions for robbery. While the majority of these offences were committed by the applicant when he was a juvenile, six of the offences committed by the applicant prior to 2006, including offences of burglary and robbery, were committed after he reached the age of eighteen.

Moreover, the Government submitted that the applicant continued to offend after the order to deport him was made in February 2006. He has been 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. Some of these offences were committed while the applicant was on release from prison on licence.

While the Government accepted that the applicant ’ s mother and siblings lived in the United Kingdom , they argued that his relationship with them did not extend beyond normal emotional ties. The Government further accepted that the applicant did not know any family members in Nigeria , but they submitted that as a healthy young adult male who spoke English, the official language of Nigeria , he would be able to adapt to life there. He could maintain contact with his mother and siblings by telephone and e-mail, and they could visit him from time to time.

With regard to the applicant ’ s partner and child, the Government indicated that the applicant first informed them of the relationship in April 2009. He did not refer to it during the domestic proceedings or in his initial application to the Court. The applicant did not state that he lived with his partner or child and the Government therefore did not accept that the relationship was as strong or as long-standing as the applicant asserted. In any case, the applicant knew that he was liable to deportation long before his daughter was born and it would be open to his partner to return to Nigeria with him. Should she choose to remain in the United Kingdom , she could maintain contact with him by telephone and e-mail, and she could visit him from time to time.

If the applicant ’ s case was admissible, the Government submitted, for the reasons set out above, that there was no violation of Article 8 of the Convention.

2. The applicant

The applicant complained that his deportation to Nigeria violated his rights under Article 8 of the Convention . In particular, he submitted that his deportation constituted an interference with his right to respect for his family and private life which was not in accordance with the law as it was in breach of section 6(1) of the Human Rights Act 1998, which made it unlawful for a public authority to act in a way which was incompatible with a Convention right.

The applicant further submitted that the interference was not necessary for the prevention of disorder and crime. He had arrived in the United Kingdom as a three-year old child and had lived there for twenty-two years. His mother and his siblings all lived in the United Kingdom and he no longer had any social, cultural or family ties to Nigeria .

In his written observations submitted to the Court on 15 September 2009 the applicant indicated for the first time that for ten years he had been in a relationship with a British citizen, who had given birth to their child on 7 June 2009.

The applicant therefore submitted that in view of the age at which he arrived in the United Kingdom , the length of his residence there and the strength of his family ties, his removal violated his rights under Article 8 of the Convention.

The Government have accepted that the applicant ’ s deportation interfered with his right to respect for his rights under Article 8 of the Convention and the Court endorses this view. Having regard to the considerable period of time the applicant has lived in the United Kingdom , his expulsion would clearly constitute an interference with his right to respect for his private life. The applicant has submitted that his relationship with his partner, their child and his immediate family also constitutes “family life”. The Court recalls that i n immigration cases it has held that there will be no family life between parents and adult children unless they can demonstrate additional elements of dependence ( Slivenko v. Latvia [GC], no. 48321/99, § 97, ECHR 2003 X; Kwakye-Nti and Dufie v. the Netherlands (dec.), no. 31519/96, 7 November 2000). In the present case, the applicant has not suggested that any additional elements of dependence exist in his relationship with his mother or siblings and the Court therefore finds that these relationships do not amount to “family life” for the purposes of Article 8. Moreover, the applicant has submitted no evidence to demonstrate that his relationship with his girlfriend has sufficient constancy to create family ties ( Kroon and Others v. the Netherlands , 27 October 1994, § 30 , Series A no. 297 ‑ C) . The Court notes, however, that it is not necessary for the purposes of this judgment to decide whether family life exists between the applicant and his partner or between the applicant and his daughter. For the purposes of this decision the Court will proceed on the assumption that it does.

The Court also finds that the impugned measure had a basis in domestic law, namely section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999). The Human Rights Act 1998 incorporated the Convention into domestic law and the question of whether the applicant ’ s deportation breached section 6(1) of the 1998 Act cannot be separated from the determination of the applicant ’ s complaint under Article 8 of the Convention.

It is not in dispute that the interference with the applicant ’ s rights under Article 8 of the Convention served a legitimate aim, namely “the prevention of disorder and crime”. The principal issue to be determined is therefore 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 ‑ ...):

“57. 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; Yilmaz 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.

58. 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.”

In the present case the applicant arrived in the United Kingdom at a very young age and resided there for twenty-two years. The Court recalls that 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. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile ( Maslov v. Austria [GC], no. 1638/03, § 75 , 23 June 2008 ).

The time span during which the applicant ’ s offences occurred is one factor which distinguishes this case from Maslov v. Austria , where the Court found a violation of Article 8. In Maslov , the applicant had convictions for burglary, extortion and assault, which he had committed during a fifteen-month period in order to finance his drug consumption. The Court found that the decisive feature in that case was the young age at which the applicant committed the offences (he was still a minor) and the non-violent nature of the offences (see Maslov , cited above, § 81). In the present case, while the applicant ’ s early offending could perhaps be described as juvenile delinquency , he continued to be a persistent and serious offender long into adulthood and the offences he committed could not be described “acts of juvenile delinquency”.

A lthough the majority of the applicant ’ s criminal offences were not at the more serious end of the spectrum of criminal activity , the robbery for which he was convicted in December 2004 was a serious offence for which he was sentenced to four years ’ imprisonment . Moreover, t he Court cannot ignore either the sheer number of offences of which the applicant has been convicted, or the time span during which the offences occurred. The Court observes that after 1998 there was no prolonged period during which the applicant was out of prison and did not re-offend. In this respect the present case resembles that of Joseph Grant v. the United Kingdom , no. 10606/07 , 8 January 2009 , in which the Court held that the applicant ’ s removal did not violate his rights under Article 8 of the Convention .

The Court also has particular regard to the fact that the applicant continued to offend after the service of the deportation order and after he was released from prison on licence. Eight convictions post-date the service of the deportation order, and these include convictions for serious offences such as possession of a Class A drug.

The Court has assumed that the applicant enjoyed family life in the United Kingdom with his partner. Nevertheless, even if the applicant and his partner have been in a relationship for ten years, the relationship still began after the applicant ’ s first criminal conviction. The Court therefore finds that the applicant ’ s partner was, at all material times, aware of the precarious nature of his immigration status. Moreover, the Court also notes that the applicant ’ s child was born long after he was served with a deportation order.

The applicant has submitted little information about his partner other than to state that she is a British citizen. In the absence of any information to the contrary, the Court finds that it would not be impossible or exceptionally difficult for her to relocate to Nigeria with the applicant. In this regard the Court observes that the applicant ’ s child is still very young, and therefore of an adaptable age.

In spite of the young age at which the applicant arrived in the United Kingdom and the length of his residence there, and in view of the length and severity of his criminal record the Court finds that, if considered against the criteria set down in Boultif v. Switzerland , no. 54273/00, ECHR 2001 ‑ IX and Ãœner v. the Netherlands [GC], no. 46410/99, ECHR 2006 ‑ ..., the interference with the applicant ’ s private and family life was proportionate to the legitimate aims pursued, namely the maintenance of an effective system of immigration control, the prevention of disorder and crime and the protection of health and morals.

It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Lech Garlicki Registrar President