ECtHR: no breach of the European Convention on Human Rights
Beset by a number of drug-related criminal convictions, Moshood Abiola Balogun, a young Nigerian national, could be deported by the Secretary of State to Nigeria, despite being resident in the UK since the age of three.
The European Court of Human Rights (ECtHR) dismissed his case, presented on the basis that deportation would be in breach of Articles 3 and 8 of the European Convention on Human Rights (ECHR), giving a further sign of a possible toughening up of the ECtHR’s stance on article 8 cases of late.
"This will please the UK’s Home Secretary, who in any event has recently announced that the domestic rules on family life exceptions to deportations are shortly to be toughened up (although asylum and immigration judges may not agree)," comments the 1 Crown Office Row Human Rights blog, adding that "Nonetheless, this finding that a young adult, resident in the UK since the age of three, can be deported despite his private life ties to this state and very few ties to the recipient state is striking".
Mr. Balogun, born in 1986 arrived in the United Kingdom at the age of three . There is no official record of his presence until 1994, when he was eight years old. In 2002, when he was thrown out by his aunt and placed in foster care, Southwark Social Services made an application for indefinite leave on his behalf, mentioning that he claimed to have been the victim of beatings by his aunt and her boyfriend since the age of three. Indefinite leave to remain was granted to the applicant, outside the immigration rules, on 1 December 2003.
Mr. Balogunt was convicted on 21 February 2007, at the age of twenty, of two counts of possession of Class A drugs with intent to supply. He pleaded guilty and was sentenced to three years’ imprisonment, and on 18 October 2007 was notified of the Secretary of State’s intention to deport him.
The Immigration Act 1971 section 3 allows the Secretary of State to have people in the UK deported, who are not British citizens, if the Secretary of State deems that to be conducive to the public good. However, this can be appealed under the Nationality, Immigration and Asylum Act 2002 on the basis that deportation would be in breach of the European Convention on Human Rights (ECHR).
Mr. Balogun, appealed against the decision to deport him notified to him in October 2007 on the basis that deportation would be in breach of Articles 3 and 8 of the ECHR: his case was dismissed by the Asylum and Immigration Tribunal.
One year later, in October 2009, he received a deportation order, appealed to the Secretary of State against it, and lost his case again.
The Secretary of State found that there was no evidence that Mr. Balogun had been present in the United Kingdom since the age of three. Even allowing for his long stay in the United Kingdom, only four years had been with valid leave. It was believed that he was in contact with his mother, who remained in Nigeria, and that as he had lived alone since attaining the age of majority, the applicant was evidently independent and capable of adapting to new circumstances. It was not accepted that he had family life in the United Kingdom.
He applied to the High Court for judicial review of his case. The High Court, in refusing the application, stated that the applicant had no family life in the United Kingdom, and that the interference with his private life was proportionate.
Mr. Balogun was taken into immigration detention on 10 November 2009 and directions for his deportation to Nigeria were set on 12 November 2009 for 19 November 2009.
THE EUROPEAN COURT OF HUMAN RIGHTS' DECISION
On 13 November, he applied to the European Court of Human Rights submitting evidence of two suicide attempts and of depression seeking interim measures to prevent his deportation to Nigeria pending the Court’s decision.
In his application, he argued that deportation would breach the ECHR in two ways:
• Article 3 (which prohibits torture, inhuman and degrading treatment) would be violated, given his suicide risk;
• Article 8 (the right to respect for private and family life) would also be breached.
On 10 April 2012, the Court declared unanimously that the Article 3 argument (risk of suicide) was not admissible, as the government had outlined appropriate steps it would take during deportation to protect the appellant from the risk of suicide and could be relied upon to take those steps.
It instead judged the complaint under Article 8 of the Convention admissible, but held by a majority that that there would be no violation of Article 8 of the Convention if Mr. Balogun were to be deported to Nigeria.
It did accept that his private life would be interfered with, but argued that this was justified, given that it was in accordance with the law and in pursuit of legitimate aims: “protecting public safety, the prevention of crime, and the protection of the rights and freedoms of others”.
The deportation would be proportionate, given that the offences he had committed were serious, it argued. It also argued that he could re-establish his private life in Nigeria as his mother lived there.
Read the full judgement: Balogun v UK  ECHR 614
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