28 April 2010

FOURTH SECTION
Application no. 8000/08
by A.A.
against the United Kingdom
lodged on 15 February 2008

STATEMENT OF FACTS
THE FACTS
The applicant, Mr A.A., is a Nigerian national who was born in 1986 and lives in London. He is represented before the Court by the Aire Centre, a non-governmental organisation based 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 Nigeria where he lived until he was 13 years old. On 5 September 2000 he arrived in the United Kingdom, where he was granted entry clearance together with his two sisters to join their mother, who had resided for four years in the United Kingdom working as a nurse.
On 27 September 2002, at the age of 15, the applicant was convicted of the rape, together with a group of other boys, of a 13 year-old girl. Detention of four years at a Young Offenders' Institution was imposed, together with registration on the sex offenders' register under the Sex Offenders Act 1997 (See “Relevant Domestic Law”, below).
On 7 July 2003, while still in detention, the Home Office granted the applicant indefinite leave to remain in the United Kingdom.
On 8 September 2003, the applicant was served by the Home Office with a notice of liability to a deportation order on account of the rape conviction.
On 17 May 2004 a Parole Assessment Report was prepared on the applicant, concluding that his response to rehabilitation was positive overall and that he posed a low risk of re-offending.
On 27 July 2004 the applicant was served with a deportation order in the following terms:
“It is concluded that in light of the seriousness of your criminal offence your removal from the United Kingdom is necessary in a democratic society for the prevention of disorder and crime and for the protection of health and morals.
...
You have stated that if you are returned to Nigeria Article 8 would be infringed. The Home Office has carefully considered your representations, but we note that you were convicted of rape at Central Criminal Court for which you were sentenced to four years imprisonment. We consider that the concerns that you have raised about your family life are outweighed by the public interest in preventing crime and consider that any interference with your family life is in your case outweighed by the public interest in preventing crime, and your removal is proportionate in pursuit of that aim under Article 8(2).
The applicant appealed against the order.
On an unspecified date apparently after receipt of the deportation order, the applicant was released from prison, having served one year and ten months in detention.
On 12 August 2005, the Immigration Judge of the Asylum and Immigration Tribunal (“the AIT”) allowed the applicant's appeal on the basis that the discretion to make the deportation order had not been exercised fairly and proportionately.
On 22 August 2005, the Secretary of State applied to the AIT for reconsideration of the decision. The Senior Immigration Judge duly ordered reconsideration on 25 August 2005.
In autumn 2005, the applicant commenced an undergraduate degree in economics.
On 17 January 2007, the Tribunal unanimously concluded that there had been clear material error in the approach of the Immigration Judge and quashed his decision. It adjourned the matter for reconsideration on all issues.
On 13 April 2007 a freshly-composed Tribunal conducted a hearing de novo of the applicant's case. It took into account the applicant's age; the length of his residence in the United Kingdom; the strength of his connections to the United Kingdom; his personal history, including the grant of indefinite leave to remain in July 2003; his domestic circumstances; his previous good character; the nature of the offence for which he was convicted; the absence of any reference to deportation in the judge's sentencing remarks at his trial; the applicant's low propensity to re-offend; the likely period before being able to apply for re-entry; compassionate circumstances and the public interest. It concluded (at paragraph 130):
“Having considered all the evidence before us and the representations made on behalf of the [applicant], we find that:
a) the [applicant's] offence was one of the categories of offences regarded by the [Secretary of State] as particularly serious;
b) the circumstances in this case are not particularly exceptional, and they do not outweigh the presumption in favour of deportation in accordance with the current version of Rule 364 [see “Relevant Domestic Law”, below];
c) in any event, even if, contrary to our finding, the provisions of the previous Rule 364 had applied to his case, we would have found that the public interest would have outweighed the other factors in this case;
d) we accordingly dismiss the [applicant's] appeal against the [Secretary of State's] decision to deport him.”
In considering Article 8 of the Convention, the Tribunal was not persuaded that the applicant currently had family life in the United Kingdom, given that he was 20 years old, lived with friends during term-time, and had no dependence on his mother, sisters or uncle going beyond normal emotional ties. However, it did accept that he had established a private life in the United Kingdom given the length of his residence, the presence of family members in the United Kingdom, and his attendance at a church and university. It added:
“134. We also find that the [Secretary of State's] decision interferes with respect for that private life, in that he would be separated from his family and church, and his degree course ... would be cut short.
135. However, we also find that the interference pursues the lawful aim of immigration control, that it is in accordance with the law, and that it is proportionate, and in making the finding about proportionality we have balanced the following factors:
a) all the same factors, including the [applicant's] domestic circumstances, as we have already taken into account when considering the balancing exercise in relation to the deportation of the [applicant];'
b) the fact that the public interest in maintaining an effective immigration control normally outweighs respect for an individual appellant's private life;
c) the fact, as we find, that the public interest in the prevention of crime in this case also outweighs the [applicant's] right to respect for private life;
d) and we find that none of the factors mentioned on behalf of the [applicant], individually or cumulatively, prejudices the private life of the [applicant] in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8 as explained by the Appellate Committee of the House of Lords in Huang.”
Accordingly, the Tribunal dismissed the applicant's appeal.
The applicant sought permission to appeal to the Court of Appeal. Permission was refused by the Court of Appeal on 25 January 2008.
In July 2008, the applicant completed his economics degree. He is currently awaiting the results of a subsequent master's degree. In April 2010 he was offered employment with a local authority in London, which he has accepted. He currently lives with his mother and visits his two sisters, who also reside in England, regularly. The applicant continues to be a member of a church in London.
B.  Relevant domestic law
”.
Section 5(1) further provides that:
“Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him ... and a deportationorder against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.”
Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against such a decision on the grounds, inter alia, that the decision is incompatible with the Convention.
The Immigration Rules, prescribed by the Secretary of State under section 3(2) of the Immigration Act 1971 for the implementation of the Act, provide as follows:
“364. Subject to paragraph 380, while each case will have to be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will 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. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects ...
380. 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.”
COMPLAINTS
The applicant complains under Article 8 of the Convention that Rule 364 of the Immigration Rules does not adequately protect his rights under that Article and that, in any case, his deportation to Nigeria would violate his right to respect for his family and private life.
He further complains under Article 2 of Protocol No. 1 to the Convention that deportation would deprive him of the right to education by terminating his university studies in the United Kingdom.

QUESTION TO THE PARTIES
1.  Would the applicant's deportation constitute a violation of his right to private life under Article 8 of the Convention?