ECHR evades question of whether Paragraphs 398 and 399 on deportation are incompatible with Article 8

NDIDI v. THE UNITED KINGDOM – 41215/14 (Judgment : No violation of Article 8 – Right to respect for private and family life (Article 8 – Expulsion) (Conditional) (Nigeria)) [2017] ECHR 781 is a case where the ECHR  had an opportunity to decide upon a  complaint on the compatibility  of  the requirements  of Paragraphs 398 and 399 of the Immigration Rules  with Article  8,  but evaded addressing the issue.

The ground  of challenge  that  the Court did  consider and make a decision  upon  resulted in an outcome which makes it  clear that  despite a deportee coming to the UK as a toddler,  residing here for twenty-eight years, having a British child,  with  little or no ties in the country of origin, deportation  can  still be effected without the UK Government breaching Article 8 of the ECHR.

 

Summary Background

The Applicant, a Nigerian national born in 1987, arrived in the UK  on 13 July 1989. Although he was  granted indefinite  leave to remain in 2003, he embarked  upon what  was described as a  “long history of sustained and serious offending”.  He was  subsequently  convicted  in relation to the supply of Class A drugs following which, on  20 March 2009 he was sentenced to seven years’ imprisonment. He  became subject to deportation proceedings in 2010.

Appeal proceedings were commenced, however the outcome was unsuccessful. Subsequently,  in a decision dated 11 April 2013, the Secretary of State  considered the Applicant’s  further representations  of November 2012 in light of the amended Immigration  Rules  and  refused to revoke the deportation order  that was in place since there were no “exceptional factors” which outweighed the public interest.  The Applicant had submitted further representations to the Secretary of State based on his relationship with a British national, who had no connection to Nigeria, and the birth of their son on 1 October 2012.

The First-tier Tribunal, having heard oral evidence from the applicant, his partner, mother, father, brother and sister, and having considered the evidence before it, dismissed the Applicant’s appeal on 16 September 2013.

Following unsuccessful permission applications to the Upper Tribunal and  a Cart judicial review,   the Applicant made an application to the ECHR on 23 May 2014 against the United Kingdom.

 

What did the Applicant complain about?

The Applicant complained that the requirements of paragraphs 398 and 399 of the Immigration Rules were not compatible with Article 8 of the Convention, and that his deportation from the United Kingdom would constitute a disproportionate interference with his right to respect for his family and private life in breach of Article 8.

It was noted that the Applicant made two distinct complaints under Article 8 of the Convention,: first, that paragraphs 398 and 399 of the Immigration Rules, which required the existence of “exceptional circumstances” before removal would be in breach of Article 8 of the Convention, imposed a higher standard than that of “proportionality”; and secondly, that in all the circumstances of his case, the decision to deport him constituted a disproportionate interference with his Article 8 rights.

Paragraphs 398 to 399A set out the situations in which a foreign criminal’s private and/or family life would be deemed to outweigh the public interest in effecting his or her deportation.

 

How the Court evaded  deciding upon the complaint on compatibility

It was noted that  the UK Government  acknowledged that  the  Applicant’s complaint that the Immigration Rules applied a higher standard than proportionality arguably raised an important point of principle and, as such, he should have applied to the Court of Appeal for permission to appeal against the Administrative Court’s refusal of  the application for permission to apply for judicial review.

The Court was inclined to agree with the UK Government that the Applicant’s first Article 8 complaint arguably raised an important point of principle which could potentially have satisfied the “second appeals” test.   The Court however concluded that it was not necessary for  it to reach any firm conclusion in respect of this point, since the Applicant did not raise it in either the preceding application for permission to appeal or the application for permission to apply for judicial review. On the contrary, it was noted that the only “important point of principle” relied on in these applications was the question of whether the decision of the Tribunal had been contrary to the principle of double jeopardy.

Consequently, the Court considered that the complaint that paragraphs 398 and 399 of the Immigration Rules imposed a higher standard than that of proportionality must be rejected under Article 35 § 1 of the Convention for failure to exhaust domestic remedies.

 

The Court’s statement of the relevant principles

The Court stated that it had  consistently held that in assessing whether an interference with a right protected by Article 8 was necessary in a democratic society and proportionate to the legitimate aim pursued, the Contracting States enjoy a certain margin of appreciation. However, as the State’s margin of appreciation goes hand in hand with European supervision, the Court is empowered to give the final ruling on whether an expulsion measure is reconcilable with Article 8.

The Court further stated that requirement for “European supervision” does not mean that in determining whether an impugned measure struck a fair balance between the relevant interests, it is necessarily the Court’s task to conduct the Article 8 proportionality assessment afresh. On the contrary, in Article 8 cases the Court has generally understood the margin of appreciation to mean that, where the independent and impartial domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the applicant’s personal interests against the more general public interest in the case, it is not for it to substitute its own assessment of the merits (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities. The only exception to this is where there are shown to be strong reasons for doing so. It was noted that consequently, in two recent cases concerning the expulsion of settled migrants, the Court declined to substitute its conclusions for those of the domestic courts, which had thoroughly assessed the applicants’ personal circumstances, carefully balanced the competing interests and took into account the criteria set out in its case law, and reached conclusions which were “neither arbitrary nor manifestly unreasonable” ( Hamesevic v. Denmark (dec.), no. 25748/15, § 43, 16 May 2017 and Alam v. Denmark (dec.), no. 33809/15, § 35, 6 June 2017).

 

How did the Court deal with the second point of argument?

It was noted that the Applicant submitted that there had been a disproportionate interference with his right to respect for his family life (with his son) and his private life, having particular regard to the fact that he had arrived in the United Kingdom just before his second birthday; he had lived there for twenty-eight years; his criminal offences were committed when he was either a minor or young adult; and he had not reoffended since his release in March 2011.

The Court reasoned and concluded as below:

  • The Court noted that the original deportation order and the subsequent appeals, first by the applicant and then by the Secretary of State, predated the amendment to the Immigration Rules on 9 July 2012.  Consequently, there were no Rules restricting the decision-making authorities’ consideration of the applicant’s rights under Article 8 of the Convention, and every decision-making body assessed the proportionality of his deportation with regard to the Court’s relevant principles concerning the expulsion of settled migrants (Boultif, Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006-XII and Maslov).
  • In her original decision to deport the applicant, the Secretary of State had specific regard to her obligations under Article 8 of the Convention, balancing his ties to the United Kingdom and the difficulties he would face readjusting to life in Nigeria against the seriousness of his criminal offending.
  • On appeal, the First-tier Tribunal conducted a similar assessment of proportionality and, having accepted that the applicant’s “unfortunate history” had resulted in a particular dependency on his family, allowed his appeal on Article 8 grounds. However, the Upper Tribunal allowed the Secretary of State’s appeal, finding that, in spite of his long residence and family circumstances, “very weighty reasons” existed to justify the applicant’s deportation. The Upper Tribunal gave careful consideration to the principles established by the Court in Boultif, Üner and Maslov, weighing the length of the applicant’s residence in the United Kingdom and the family and private life established there against his long history of offending, continuing after the Secretary of State’s warning in 2006, his poor behaviour in prison, and the risk to the public from future offending. Whilst accepting that his removal would be difficult, the Upper Tribunal concluded that he was of an age where he could be expected to “stand on his own two feet and make a life for himself”.
  • Although the Applicant’s further representations were made following the amendment to the Immigration Rules, the First-tier Tribunal heard his appeal against the Secretary of State’s refusal to revoke the deportation order before the Court of Appeal gave judgment in (MF (Nigeria) v. Secretary of State for the Home Department [2013] EWCA Civ 1192. It therefore adopted the two-stage approach required by the Upper Tribunal in both MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC) and Izuazu (Nigeria) Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) , asking first, whether there were “exceptional circumstances” as required by the Immigration Rules, before going on to consider Article 8 as a “separate issue” .
  • In its assessment of proportionality under Article 8, the First Tier Tribunal had regard to the Upper Tribunal’s decision of 24 April 2012 which had in turn given careful consideration to the principles established by the Court in Boultif, Üner and Maslov .
  • In addition, the First-tier Tribunal also had regard to the new evidence concerning the applicant’s relationship with his (then) partner and their child. However, it considered it significant that he had failed to disclose his immigration status to his partner until after she had fallen pregnant; that he and his partner had never lived together; that his partner had the support of her family in the United Kingdom; and that his child could visit him in Nigeria and maintain such a relationship as deemed appropriate. Having weighed everything in the balance, including the best interests of the applicant’s child, it reached the same conclusion as the Upper Tribunal; namely, that the interests in effecting the applicant’s deportation were not outweighed by his Article 8 rights.
  • Regardless of whether or not paragraphs 398 and 399 of the Immigration Rules could be said to impose a higher standard than that of proportionality, there is no doubt that in the present case the First-tier Tribunal – and, in fact, all the domestic decision-makers – gave thorough and careful consideration to the proportionality test required by Article 8 of the Convention, including the relevant criteria set out in this Court’s case-law, and, having balanced the applicant’s Article 8 rights against the public interest in deportation, concluded that his deportation would not constitute a disproportionate interference with his right to respect for his family and private life.
  • The facts of the Applicant’s case were noted to undoubtedly require careful scrutiny, given the length of his residence in the United Kingdom, his ongoing relationship with his son and other family members there, and his limited ties to his home country. Nevertheless, having regard to his long and escalating history of offending, continuing after the Secretary of State’s warning in 2006, and beyond his attaining the age of majority, the Court saw no grounds upon which the decision of the domestic authorities could be impugned. Furthermore, there had been no change in the applicant’s circumstances since the date of the last domestic decision which would provide the Court with strong reasons to substitute its own assessment of proportionality for that of the domestic authorities. It was also noted by the Court that, following the last domestic decision, the Applicant’s relationship with his partner had ended, and his contact with his son has been restricted to alternate Saturdays.
  • Accordingly, the Court considered that the Applicant’s deportation would not be in breach of Article 8 of the Convention.

 

Conclusion

As regards the first limb of the Applicant’s claim which  the Court  declined to consider,   it appears Ndidi  was not an appropriate   case  to canvass the argument  as regards the compatibility of  paragraphs 398 and 399 of the  Immigration Rules with Article 8.  An ambitious argument had sought to be advanced, however  there is  the acknowledgment  by the UK government that the Applicant’s complaint that the Immigration Rules applied a higher standard than proportionality arguably raised an important point of principle:  the Court was inclined to agree with the  UK Government that the Applicant’s complaint arguably raised an important point of principle which could potentially have satisfied the “second appeals” test.  The door then is clearly  open for  those willing to take up the mantle and advance an appropriate challenge  within the UK domestic courts.

 

 

 

 

 

 

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s