1 July 2008

FOURTH SECTION
Application no. 26970/07
by Alhaji Bashiru SANDA 
against the United Kingdom
lodged on 27 June 2007

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Alhaji Bashiru Sanda, is a Nigerian national who was born in Nigeria and lives in Erith.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was resident in the United Kingdom between 1977 and 1981. He then left the UK for 13 years. On 12 April 1994 the applicant entered the UK with entry clearance as a visitor for 6 months. On 23 January 1995 he applied for leave to remain on the basis of marriage. The application was refused on 29 May 1996. The applicant appealed against this decision and on 1 February 1999 his appeal was allowed. On 4 April 1999 the applicant was granted leave to remain until 20 May 2000. On 19 May 2000 the applicant was granted indefinite leave to remain as the spouse of a British citizen.
On 5 December 2002 the applicant was arrested on re-entry into the United Kingdom at London City Airport in possession of 4.5 kilograms of cocaine with a street value of GBP 240,000. On 21 February 2003 the applicant was convicted of fraudulent evasion of the prohibition on the importation of these drugs and was sentenced to 8 years' imprisonment.
On 30 May 2006 the applicant was notified of the Secretary of State's decision to make a deportation order in his case.
The applicant appealed against this decision. One of the grounds of appeal was that if he was returned to Nigeria he would be liable to conviction under Nigerian domestic law.
The relevant provision was said to be contained in section 22 of the National Drug Law Enforcement Agency Act 1991 (“NDLEA”) and states:
“(2) Any Nigerian citizen found guilty in any foreign county of an offence involving narcotic drugs or psychotropic substances and who thereby brings the name of Nigeria into disrepute shall be guilty of an offence under this sub-section.
 (3) Any person convicted of an offence under subsection (1) or (2) of this section shall be liable to imprisonment for a term of five years without an option of a fine and his assets and properties shall be liable to forfeiture as provided under the Act”.
On 9 August 2008 the Tribunal dismissed the applicant's appeal. The Immigration Judge (“IJ”) was not convinced that the applicant “would automatically be found to bring the name of Nigeria into disrepute”. She further considered that even though she was willing to concede that it was possible that the applicant might come within the terms of the section she was not satisfied that the term of five years' imprisonment would automatically be applied. Reference was made to the case of Re MBA where the applicant claimed that a female friend of hers had been detained for two months under this provision and had secured her release by the payment of a bribe. The IJ found that the applicant had not shown that prison conditions in Nigeria would reach the minimum threshold required for Article 3 to be breached and she was “by no means satisfied that he had shown he would be imprisoned, or if so for any substantial period of time”.
The applicant had also claimed that his Article 8 rights would be violated through removal from his three children. The IJ concluded that there was no family life between the applicant and his family and that in any event his ties in the United Kingdom were not strong enough to outweigh the public interest.
On 25 August 2006 a Senior IJ ordered a reconsideration of the IJ's decision on account of: i) his concern regarding the lawfulness of the finding that the applicant's relationship with his minor children was not protected by Article 8 (1) and; ii) concern over whether the IJ had understood the operation of Nigerian criminal law concerning drug offenders or had made proper findings about prison conditions in Nigeria.
On 25 April 2007 another IJ dismissed the appeal. The IJ found that it was “necessary to prove that the defendant has been found guilty of a drugs offence and that he has thereby brought the name of Nigeria into disrepute. If it were intended that being found guilty of a drugs offence would automatically bring the name of Nigeria into disrepute it would hardly be necessary for the extra condition to be referred to in the statute at all”. The IJ also commented that the sentence of five years was not mandatory and commented in regard to prison conditions that: “in an American case it had not been found that a young woman would be more likely than not to receive treatment breaching her rights under Article 3”.
The IJ also found that whilst the Tribunal was “in error in including in its reasons for finding that there was no existing family life between the applicant and his children” the applicant had not seen his children nor tried to see them for many years and therefore this error could not have affected the Tribunal's decision to dismiss the appeal.
The applicant applied for reconsideration of this decision out of time. On 3 October 2007 a Senior IJ held that there was no material error of law and that the original determination should stand.
Throughout the applicant's deportation proceedings there were also care order proceedings in relation to the applicant's children. On 22 June 2006, the applicant's children were removed from the care of their mother following a disclosure to their school and subsequent police involvement that their mother had used physical chastisement and inappropriate punishment to provide boundaries for the children.
On 23 June 2006 an interim care order was granted in respect of the applicant's three children. The matter returned to court on 29 June for a contested interim care order and, on that date, an interim care order was made in relation to the eldest child (who is now with a foster carer) and interim supervision orders granted for the two youngest (they reside with their mother).
In a statement made by a social worker on 20 June 2007 a social worker stated: “the Local Authority does not believe that he (the applicant) is in a position to become a carer for the children until his immigration issues are resolved. Mr Sanda (the applicant) has however stated that he will give his support for Ms Adeniji (his ex-wife) to provide care for his children if he remains detained. He has now established contact with his eldest child since his visit to him on 4 May 2006. The Local Authority is of the view that Mr Sanda has shown his love for the children and therefore it would be in the children's best interest to continue to have some meaningful contact with him”.

COMPLAINTS

The applicant complains that if he is returned to Nigeria he will suffer treatment contrary to Articles 3 and 8 of the Convention.
The applicant's Article 3 complaint relates to the fact that he may face a five year prison term under Nigerian domestic law which would result in his being exposed to treatment contrary to Article 3 of the Convention in a Nigerian prison.
The applicant claims under Article 8 to have been resident in the United Kingdom for over 22 years and his ex-wife and three children aged ten, eight and five are all British citizens.

QUESTIONS TO THE PARTIES

1.  Would there be a violation of the applicant's rights under Article 8 of the Convention if he were returned to Nigeria?