SEPARATE OPINION OF JUDGE DE GAETANO

1. I have voted , not without some misgivings , with the majority in this case. The reason for my initial hesitation is that the instant case is not easily reconcilable with , and not convincingly distinguishable from , cases like Nunez v. Norway (28 June 2011 , no. 55597/09) and A.A. v. the United Kingdom (20 September 2011 , no. 8000/08) if these cases are viewed solely from the perspective of the doctrine of the margin of appreciation. In Nunez all the facts were before the Norwegian judicial authorities who gave relevant and sufficient reasons for their decision to uphold Mrs Nunez ’ s expulsion. Likewise in A.A. all the facts were before the Immigration Tribunals and the Court of Appeal , and it was not for a moment suggested that these had erred in law or in fact (although in A.A. the UK Border Agency dragged its feet for more than two and a half years after the decision of the Court of Appeal).

2. The reality is , however , that no one case is identical to another. When applying the principle of proportionality , in order to decide whether the impugned (expulsion) measure is “necessary in a democratic society” , the various criteria set out in Üner v. the Netherlands ([GC] 18 October 2006 , no 46410/99 , at §§ 54-58) and Maslov v. Austria ([GC] 23 June 2008 , no 1638/03 , at § 71) all exert a different gravitational pull such that it is often difficult to decide on which side the scales should tip. Factor in also the “best interest s of the child” (as was the case in Nunez ) and the case can spiral out of orbit (see also the joint dissenting opinion in Antwi and Others v. Norway (14 February 2012 , no. 26940/10)).

3. In my view the decisive factor in the instant case is the seriousness of the offences committed after the applicant had become an adult. The applicant knew perfectly well that , although he could be considered as a settled migrant , as an alien he had no “absolute right” to stay in the United Kingdom , and he must have known that in the event of serious brushes with the law , he risked being expelled. As was pointed out in Maslov “ ... Article 8 provides no absolute protection against expulsion for any category of aliens ... including those who were born in the host country or moved there in their early childhood ... ” (§ 74). The applicant simply brought the expulsion upon himself – imputet sibi. Article 8 should not be construed as an automatic safety valve for overriding immigration control on general (as opposed to specific and compelling) compassionate grounds or where there would be some harshness resulting from removal.

JOINT DISSENTING OPINION OF JUDGES GARLICKI AND DAVID THÓR BJÖRGVINSSON

We have voted with the majority as concerns the inadmissibility of the applicant ’ s complaint under Article 3 of the Convention. Moreover , we agree , like the majority , with the findings of the Asylum and Immigration Tribunal that his relationship with his girlfriend and the presence of his relatives in the United Kingdom do not amount to family life within the meaning of Article 8 of the Convention (see § 47). However , we disagree with the majority ’ s finding that there would be no violation of the applicant ’ s right to respect for his private life if he were to be deported to Nigeria .

It is pointed out in §48 of the judgment that the following represent the relevant criteria to be applied to the case: i) the nature and seriousness of the offences committed by the applicant; ii) the length of the applicant ’ s stay in the United Kingdom; iii) the time that has elapsed since the date of the applicant ’ s last offence and his conduct during that period; and iv) the solidity of social , cultural and family ties with the host country and with the country of destination.

As regards the first point it is clear that the applicant has a history of offending. This is an important element justifying his deportation from the United Kingdom . However , according to the case file the applicant ’ s date of birth is 5 April 1986 , which means that he turned 18 on 5 April 2004. Two of the convictions were in 2004 , one - possession of Class A and C drugs - occurred in February 2004 , before he was 18 , and the other - handling stolen goods - two days after he turned 18. However , from the record of his convictions it transpires that both offences were actually committed in 2003 , when he was still a minor. As regards the dates on which the offences were committed and for which he was convicted in 2005 and 2007 , we can only assume they were committed after he had turned 18 , especially the 2007 conviction. Whatever the exact dates , it clearly transpires that all offences were in any event committed when the applicant was still a very young man and three of them when he was still a minor.

As regards the second point we simply emphasise that the applicant entered the United Kingdom at the age of three. We agree with the majority ’ s finding in § 50 that the applicant is a settled migrant who has spent virtually all his childhood and adult life in the United Kingdom . We agree , moreover , with the majority that under these circumstances very serious reasons would be required to justify his expulsion from the United Kingdom .

As regards the third point we simply point out that at least five years have elapsed since the applicant last offended. Moreover , there is nothing in the file to indicate that his conduct has not been good since then , both during the three-year period he spent in prison and the two years that have elapsed after he completed his sentence.

As regards the fourth point we believe that there can be little doubt that the applicant ’ s ties with the United Kingdom are much stronger than with Nigeria . Indeed , we believe that the applicant , having spent virtually all his life in the United Kingdom and with little recollection of time spent in Nigeria , has no meaningful social , cultural or familial ties with that country. In this regard we find the arguments advanced in § 51 as regards the applicant ’ s possibilities to pursue and strengthen “familial ties” with his mother , with whom he has not been in any contact from the age of three , if not longer , to be highly speculative and artificial. Moreover , we would like to add that we find it somewhat contradictory to suggest as relevant possible limited “familial ties” with his mother in Nigeria , since such ties would not be accepted as relevant “familial ties” under Article 8 of the Convention had his mother been living in the United Kingdom . These ties , if they existed , could not be used by the applicant to support his claim to be allowed to stay in that country , unless some additional elements of dependence could be established (see § 43 of the judgment). Therefore , we fully agree with what is said in § 53 of the judgment , namely that there is no doubt that the applicant ’ s deportation to Nigeria will have a very serious impact on his private life.

In sum we believe , having in mind the young age at which the offences were committed , the strong ties the applicant has with the United Kingdom and the corresponding lack of ties with Nigeria , and the overall and very serious impact deportation will have on the applicant , that his right to respect for his private life under Article 8 of the Convention would be breached if he were to be deported to Nigeria.

[1] Rectified on 17 September 2012: the text was “ by a majority ”.