13 January 2011

FOURTH SECTION
Application no. 29930/10
by Eric Efeosaosere OKUONGHAE
against the United Kingdom
lodged on 1 June 2010
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Eric Okuonghae, is an American national who was born in 1981 and now lives in the United States of America. He is represented before the Court by Alpha Rocks Solicitors, lawyers practising in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was born in the United States of America. In 1982, when the applicant was still a baby, his family returned to their country of origin Nigeria.
 On 20 August 1986, when the applicant was 5 years of age, he arrived in the United Kingdom with his sister to join his mother, brother and another sister who were already living in the United Kingdom.
On 10 June 1998, the applicant and his family were granted indefinite leave to remain in the United Kingdom. The applicant’s parents, brother and two sisters are all now British citizens.
In 2001, the applicant met and commenced a relationship with his partner, a British citizen.
Between 1999 and 2003, the applicant received various convictions for the possession or use of cannabis for which he received fines. In October 2003, he was convicted of dangerous driving and sentenced to six and a half weeks’ imprisonment.
On 19 February 2006, the applicant’s daughter was born.
On 1 September 2006, at Croydon Crown Court, the applicant was convicted of possession of criminal property (bank cards) and a false instrument (a false passport) and was sentenced to 12 months’ imprisonment. The sentencing judge did not make any recommendation for the applicant’s deportation from the United Kingdom.
On 24 November 2006, the applicant was served with a notice of the decision to deport him due to his conviction for the possession of a false passport.
On 5 November 2007, the then Asylum and Immigration Tribunal (“the AIT”) dismissed his appeal against deportation. The AIT accepted that the applicant had a British girlfriend who he had met in 2001 and that he had a young daughter in the United Kingdom. It further accepted that he had the support of a loving family in the United Kingdom who had given evidence at his appeal. Furthermore, it accepted the evidence of an offender manager at the Probation Service to the effect that the applicant had shown remorse for his offending behaviour and wanted to become a role model for his family. Nevertheless it noted that the applicant’s latest conviction was his seventeenth since 1999 and was for a dishonesty offence.
In relation to Article 8 of the Convention, the AIT found that the applicant had a private life in the United Kingdom, but did not accept that he had a family life there, noting that he was now an adult who lived independently and that any emotional ties with his mother and siblings were not over and above those between adult siblings and their parents. Further, it did not accept that he had a family life with his partner because, whilst he was a caring, helpful and devoted father and partner, he lived separately from his partner as a condition of his prison licence. No separate consideration of the applicant’s relationship with his daughter was undertaken.
The AIT considered that any interference in the applicant’s private life was necessary and proportionate for the prevention of disorder and crime and the protection of health and morals given the applicant’s criminal record in the United Kingdom and the fact that his family, partner and child could visit him in the United States of America.
On 22 November 2007, a Senior Immigration Judge refused his application for reconsideration. The Judge accepted that there was merit in the criticism of the AIT’s finding that the appellant had no family life in the United Kingdom given that he had a partner and an infant daughter with whom he had frequent contact. However this arguable error was not considered to be material to the outcome of the appeal given that the AIT had accepted that the applicant had private life in the United Kingdom and had clearly understood the nature of the relationships that comprised that private life. The Judge considered that the AIT had carried out a balancing exercise and had reached a reasoned conclusion that the applicant simply did not like.
On 25 June 2008, a further application for reconsideration was dismissed by the High Court. It stated that, on a close reading of the determination, it could not be said that the decision was one that was not open to the AIT for the reasons it had given.
On 7 March 2008, a signed deportation order was served upon the applicant. On 13 August 2008, the applicant was deported to the United States of America.
On 15 August 2008, the applicant re-entered the United Kingdom on his own passport which had not been marked with his deportation and was granted two months’ leave to enter. He moved back into the home of his British partner and their daughter.
On 6 July 2009, the applicant was arrested during an immigration spot check and removal directions to United States of America were set. The applicant lodged an invalid appeal which was struck out by the AIT on 14 July 2009.
In September and October 2009, the applicant submitted further representations on the basis of Article 8 of the Convention relying on his private and family life in the United Kingdom but also claiming to suffer from various medical problems including tuberculosis.
On 5 November 2009, the Secretary of State refused those representations and refused to revoke the deportation order. Relying substantially on the AIT’s findings in 2007, it was considered that the applicant’s deportation would not breach Article 8. Furthermore, given the lack of evidence submitted and the existence of treatment in the United States of America, it was not accepted that any health condition that the applicant suffered from approached the threshold required to engage Article 3 as set out in N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008. Finally, the applicant’s claims were certified as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002 (see domestic law and practice below).
The applicant lodged an application for judicial review of the decision to refuse to revoke the deportation order and certify his claim as clearly unfounded relying on Articles 3 and 8 of the Convention.
On 14 January 2010, the High Court refused permission to apply for judicial review stating that the applicant’s claim was totally without merit and that there was no bar to his removal without further order. It further stated that, with the exception of the issue of his ill-health, the applicant effectively only repeated issues which had already been raised in his earlier appeal in respect of Article 8. It therefore considered that the suggestion that his removal would be disproportionate was unarguable. In relation to his medical condition, it considered that the evidence did not cross the threshold of severity such as to engage Article 3 because his condition would, in any event, be treatable with medication readily available in the United States of America.
On 9 February 2010 and 25 March 2010, further representations relating to the applicant’s health condition of sarcoidosis (an inflammatory disease in which abnormal collections of inflammatory cells form as nodules in organs of the body) and Article 8 were refused by the Secretary of State as not amounting to a fresh human rights claim (see domestic law and practice below). It was not accepted that the applicant’s medical condition was exceptional or reached the threshold required to engage Article 3, particularly given that it was not accepted that the applicant would be unable to access treatment in the United States of America; that there was no indication that his condition had any bearing on his life expectancy; and that there was nothing to suggest that the applicant would be deemed unfit to fly.
On 14 May 2010, the High Court refused his renewed application for permission to apply for judicial review and stated that his claims under Articles 3 and 8 were unarguable without giving full reasons.
On 1 June 2010, the Court of Appeal granted a stay upon the applicant’s removal to the United States of America pending the outcome of his application for permission to appeal against the High Court’s decision. Whilst the Court of Appeal was not persuaded that Article 3 of the Convention was in issue, it stated that Article 8 might be given that:
“the quality of the decision of the AIT is, to put it gently, dubious, and that the upshot of it and of the subsequent refusal to order reconsideration appears to go contrary to the jurisprudence of the European Court of Human Rights, which in more than one case has recognised, or asserted, that the hurdle to be surmounted by a state seeking to deport an individual whose only home the state has been since early childhood is a very high one. For my part I have found it difficult to see how the AIT could have found that hurdle surmounted, and certainly the reasons for which they did so strike me as open to question.”
On 17 August 2010, the Court of Appeal reluctantly refused the application for permission to appeal and lifted the stay on the applicant’s removal, noting that the applicant’s appeal against deportation had already been determined and was res judicata and that subsequent challenges had failed. In the circumstances, Sedley LJ considered that there was not a sufficient ground upon which he could legitimately give permission to appeal.
Nevertheless, he commented that:
	“The proposed deportation is a bleak prospect for him. There can be no doubt about that. His family, which is Nigerian by origin, is apparently not represented there. He has neither relatives nor friends to turn to, and he is a fairly sick man, having a hydrocele condition and sarcoidosis which, although [Counsel for the applicant] has honourably and candidly disavowed any Article 3 claim on the basis of them, are distressing conditions requiring medication which a poor man in the United States is not going to find it easy to obtain. That is the background.”
Further, he stated that the AIT determination was:	
	“...disturbing not only in the casualness of some of its composition but in particular in its apparent failure to given any, never mind due, weight to the fact that this was an undoubtedly persistent though not a grave offender who had, however, been in this country since the age of four. Much recent Strasbourg jurisprudence makes it clear that where deportation is going to be more in the nature of exile than simply the removal of somebody who has come here and become a public nuisance, it takes very weighty factors indeed to make deportation proportionate. No regard appears to have been paid to this element of the case at all.”
On 13 September 2010, the applicant lodged an application with this Court and requested an interim measure, under Rule 39 of the Rules of Court, to prevent his removal to the United States of America. On 17 September 2010, the President of the Chamber to which the application was allocated decided to refuse that request	
B.  Relevant domestic law and practice
1. Domestic legislation
a. Primary legislation
Section 5(3)(a) of the Immigration 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 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against such a decision, inter alia, on the grounds that the decision is incompatible with the Convention. Appeals in asylum, immigration and nationality matters were, at the relevant time, heard by the AIT.
Section 94(2) of the Nationality, Immigration and Asylum Act 2002 (as amended by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004) provides that a person may not bring an appeal from within the United Kingdom if the Secretary of State certifies that an asylum or human rights claim is clearly unfounded.
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
b. Secondary legislation concerning deportation
Section 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 364 of the Immigration Rules provides that, subject to paragraph 380, where a person is liable to deportation the presumption will be that the public interest requires deportation, and that it would only be in exceptional circumstances that the public interest in deportation would be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport.
Paragraph 380 of the Immigration Rules provides that:
“A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom’s obligations under the Convention and Protocol relating to the Status of Refugees or the Human Rights Convention [the European Convention on Human Rights].”
Paragraph 390 of the Immigration Rules provides that:
“An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:
(i) the grounds on which the order was made;
(ii) any representations made in support of revocation;
(iii) the interests of the community, including the maintenance of an effective immigration control;
(iv) the interests of the applicant, including any compassionate circumstances.”
c. Fresh asylum and human rights claims
Paragraph 353 of the Immigration Rules provides as follows:
“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v. Secretary of State for the Home Department [2006] EWCA Civ 1495 (paragraphs 10-11) has held:
“Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.”
Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Home Office, will nonetheless generate a fresh right of appeal to be considered on the merits.
2. Relevant Instrument of the Council of Europe
Council of Europe Recommendation Rec (2000) 15 Concerning the Security of Long-Term Migrants, 13 September 2000, provides as follows:
“4. As regards the protection against expulsion
a. Any decision on expulsion of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights’ constant case-law, of the following criteria:
- the personal behaviour of the immigrant;
- the duration of residence;
- existing links of the immigrant and his or her family to his or her country of origin.
b. In application of the principle of proportionality as stated in paragraph 4a, member States should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long-term immigrant. More particularly, member states may provide that a long-term immigrant should not be expelled:
- after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years’ imprisonment without suspension;
- after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years of imprisonment without suspension;
After twenty years of residence, a long-term immigrant should no longer be expellable.
c. Long-term immigrants born on the territory of the member state or admitted to the member state before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of eighteen.
Long-term immigrants who are minors may in principle not be expelled.
d. In any case, each member state should have the option to provide in its internal law that a long-term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety.”
COMPLAINTS
The applicant complains under Article 8 of the Convention that his deportation for the offence of the possession of a false passport after having spent 24 years, and almost all of his childhood in the United Kingdom, was a disproportionate inference with his right to respect for his private and family life in the United Kingdom. Further, he complains that his deportation breached Article 3 of the Convention given his inability to fund treatment in the United States of America for his medical condition of sarciodosis.
QUESTION TO THE PARTIES
Did the applicant’s deportation violate his right to respect for his private and/or his family life contrary to Article 8 of the Convention (Maslov v. Austria [GC], no. 1638/03, 23 June 2008)?