Resolution CM/ ResDH (2011)82 [1]

Execution of the judgments of the European Court of Human Rights

Omojudi and A.W. Khan against the United Kingdom

( Omojudi , Application No. 1820/08, judgment of 24 November 2009, final on 24 February 2010;

A.W. Khan, Application No. 47486/06, judgment of 12 January 2010, final on 12 April 2010)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the violation of the right to private and family life as the applicants ’ deportation orders were not proportionate to the legitimate aim pursued (violation of Article 8) (see details in Appendix);

Having invited the government of the United Kingdom to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2011)82

Information on the measures to comply with the judgments in the cases of

Omojudi and A.W. Khan against the United Kingdom

Introductory case summary

In Omojudi , the applicant was a Nigerian citizen granted indefinite leave to remain in the United Kingdom on 18 April 2005. In November 2006 he was convicted of sexual assault and sentenced to 15 months ’ imprisonment and deported to Nigeria in April 2008. The Court held that “having regard to the circumstances of the case, in particular the strength of the applicant ’ s family ties to the United Kingdom, his length of residence, and the difficulty that his youngest children would face if they were to relocate to Nigeria”, the applicant ’ s deportation was not proportionate to the legitimate aim pursued (§48) (violation of Article 8).

In the case of A.W. Khan, the applicant was a Pakistani by birth and granted indefinite leave in the United Kingdom on 5 October 1978. He was convicted of attempted importation of a prohibited narcotic in January 2003 and after pleading guilty was sentenced to 7 years ’ imprisonment. He was released in April 2006 for good conduct. In May 2006 the applicant was issued with a deportation order. Applications for reconsideration in August and November 2006 and August 2008 were all considered inadmissible. The Court noted that the applicant had lived in the United Kingdom most of his life; had no continuous link with Pakistan ; had important family ties in the United Kingdom and had not re-offended since being freed in 2006. It concluded that to expel the applicant would not be proportionate to the legitimate aim pursued (violation of Article 8).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Omojudi (1820/08)

-

3000 EUR

6000 EUR

9000 EUR

Paid on 20/05/2010

A.W. Khan (47486/06)

-

-

1750 EUR plus 3,39 GBP interest

1750 EUR plus 3,39 GBP interest

Paid on 27/07/2010

b) Individual measures

The deportation order against Mr Omojudi was revoked on 30 April 2010. However the applicant had unfortunately died and therefore never re-entered then United Kingdom . On 2 February 2010 the UK Border Agency wrote to Mr Khan informing him that his deportation order had been revoked and that his indefinite leave to remain in the United Kingdom was reinstated. Consequently, no further individual measure was considered necessary by the Committee of Ministers.

II. General measures

The judgments have been sent out to all the relevant authorities, in particular: the legal officer in the Home Office Legal Advisor ’ s Branch with lead responsibility for advising the UK Border Agency on Article 8; the legal officer in the Home Office Legal Advisor ’ s Branch with lead responsibility for advising the UK Border Agency on deportation, the Assistant Director of the Criminal Casework Directorate, the UK Border Agency, Head of Litigation Strategy; and Policy Advisor to the UK Border Agency on Article 8, Complex Advice Team.

Article 8 of the Convention is incorporated into s.6(1) of the Human Rights Act 1998 and as such its scope in domestic law is determined by the domestic courts which must take into account judgments of the European Court (s.2). Moreover, there are guidelines in place, published in August 2010, advising the UK Border Agency on how to address issues arising under Article 8: Article 8 Asylum Policy Information Guidance .

The Omojudi judgment was published in Lawtel , Butterworths / Lexis Nexis , The Times Law Reports (15/12/2009) and the European Human Rights Review (2010) 51 EHRR 10.

The judgment in Kahn was published in European Human Rights Review (2010) 50 EHRR 47; The Times Law Reports (03/02/2010); Lexis General Case Digest (12/01/2010); Halsbury ’ s Laws, Constitutional Law and Human Rights (volume 8(2)), paragraph D149.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies