AS TO THE ADMISSIBILITY OF
Application no. 53080/07
by Jahed Tofur MIAH
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 27 April 2010 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 4 December 2007,
Having deliberated, decides as follows:
1. The applicant, Mr Jahed Tofur Miah, is a Bangladeshi national who was born in 1979 and now lives in Bangladesh.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was born in Bangladesh. Soon after his birth, his parents divorced and his father moved to the United Kingdom and remarried. His mother remained in Bangladesh. The applicant moved to the United Kingdom in 1991, when he was eleven years of age, to join his father, stepmother and two brothers. His father died there in 1994.
3. When he was sixteen years of age, the applicant began abusing drugs. In 1999, he was convicted of burglary and theft and sentenced to two years' detention in a Young Offender Institution. Between 2001 and 2003 he was convicted of two counts of theft, failing to surrender to custody, another count of theft, a further two counts of failing to surrender to custody, failing to surrender to bail and possession of a controlled class A drug. He was given a fine on each occasion. On 23 December 2005 he was convicted of burglary and theft and failing to surrender to custody and sentenced to a community order of twelve months. On 24 June 2006, he was convicted of theft and sentenced to twelve months' imprisonment. The trial judge described him as a “persistent thief and burglar”.
4. On 16 October 2006, the Secretary of State gave the applicant notice of intention to make a deportation order. On 28 November 2006, after considering representations from the applicant, the Secretary of State decided to make a deportation order. In the Secretary of State's opinion the applicant had not provided any details of legitimate employment he had held in the United Kingdom. He had spent his youth and formative years in Bangladesh and so it would not be unreasonable to expect him to readjust to life there. The deportation would therefore be compatible with Article 8 of the Convention.
5. The applicant appealed to the then Asylum and Immigration Tribunal. His appeal was dismissed on 22 May 2007. The Tribunal accepted that the applicant had indefinite leave to remain in the United Kingdom and that he had lived for a substantial period of time in the country and had family there. However, these factors were outweighed by other factors. The applicant had no employment record. He had a substantial number of convictions and had already been given a number of opportunities to mend his ways. He had stolen to fund a substantial drug habit (he had been using GBP 50 worth of heroin and crack cocaine per day) but was now in good health. He had given evidence in Bengali and therefore, as a relatively young man, in good health and speaking the language, there was no reason why he could not return to Bangladesh and take up work there. His mother had remained there and it was likely that there were other members of his extended family to whom he could turn for support. The Tribunal doubted that the applicant, as an adult, could be said enjoy family life in the United Kingdom with his stepmother or his brother, with whom he intended to live upon release from prison. It had no doubt that he had established private life in the United Kingdom but did not consider that, given that the applicant had been in and out of prison and abusing drugs for eleven years, the deportation would have consequences of such gravity as to engage Article 8. The Tribunal concluded that, even if it were wrong in respect of a lack of an interference with the applicant's private or family life, any interference would be proportionate to the legitimate aim of the prevention of disorder or crime.
6. The applicant sought reconsideration of the Tribunal's determination. This application was refused by a Senior Immigration Judge on 11 June 2007. A further such application was refused by the High Court on 8 October 2007. In each case, it was found that the application amounted to no more than a disagreement with the Tribunal's findings.
7. On 10 December 2007, the applicant lodged an application with this Court and sought interim measures under Rule 39 of the Rules of Court to prevent his removal to Bangladesh. The following day, he was informed that this request fell outside the scope of Rule 39. He was duly deported to Bangladesh on 12 December 2007. He has since indicated that he wishes to continue his application from Bangladesh.
B. Relevant domestic law and practice
1. Primary legislation
8. Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Section 3(5)(b) of the same 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(1)(a) of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against a decision to deport, inter alia, on the grounds that the decision is incompatible with the Convention and that it was not in accordance with the Immigration Rules.
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.
2. The Immigration Rules
9. The version of paragraph 364 of the Immigration Rules, which was in force prior to 20 July 2006, provided as follows:
“Subject to paragraph 380, in considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, 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. [In the cases detailed in paragraph 363A, deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority]. Before a decision to deport is reached the Secretary of State will take into account all relevant factors known to him including:
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person's behalf.”
The amended version of paragraph 364, in force since 20 July 2006, provides as follows:
“Subject to paragraph 380, while each case will 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...”
Paragraph 380 of the Immigration Rules, referred to in both versions of paragraph 364, provides as follows:
“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].”
10. The Rules relating to the revocation of a deportation order are contained in paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended), supplemented by Chapter 13 of the Immigration Directorate's Instructions (“IDIs”). There is no specific period after which revocation will be appropriate although Annex A to Chapter 13 of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal. Cases which will normally be appropriate for revocation three years after deportation include those of overstayers and persons who failed to observe a condition attached to their leave, persons who obtained leave by deception, and family members deported under section 3(5)(b) of the Immigration Act 1971. With regard to criminal conviction cases, the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “spent” under section 7(3) of the Rehabilitation of Offenders Act 1974. Paragraph 391 of the Rules, however, indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course. This is expanded on in Annex A to Chapter 13 of the IDIs, which indicates that revocation would not normally be appropriate until at least 10 years after departure for those convicted of serious offences such as violence against the person, sexual offences, burglary, robbery or theft, and other offences such as forgery and drug trafficking.
11. The applicant made three complaints. First, he complained that his deportation violated Article 3 of the Convention. Second, he complained that the Immigration Rules were changed to impose a presumption in favour of deportation after he had been sentenced and this amounted to a violation of Article 7 of the Convention. Finally, under Article 8 of the Convention, he complained that his deportation was a disproportionate interference with his private and family life in the United Kingdom.
12. Article 3 provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 7, where relevant, provides:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed...”
And Article 8 provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Articles 3 and 7 of the Convention
1. The applicant's submissions
13. In respect of Article 3, in his initial application the applicant argued that if returned to Bangladesh, there was a real risk that he would be subjected to exploitation or physical abuse and violence. Since he would be returned without any money or contacts, he would be particularly vulnerable. He would be among the most destitute in Bangladeshi society, where there had already been considerable unrest.
In respect of Article 7, he maintained that the change in the Immigration Rules was in violation of that provision.
2. The Court's assessment
14. In the Court's view, neither of these complaints are made out on the facts of the case. For Article 3, the mere fact of return to a country where one's economic position will be worse than in a Contracting State is not sufficient to meet the threshold of ill-treatment proscribed by Article 3 (see, mutatis mutandis, N. v. the United Kingdom [GC], no. 26565/05, § 42, 27 May 2008) and the Court is unable to find that the applicant, a young man in good health, would have been particularly vulnerable at the time of his deportation. This complaint must be rejected as manifestly ill-founded. For Article 7, it is well-established in the Court's case-law that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention (see Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X). By extension, it cannot be argued that a deportation order amounts to the determination of a criminal offence within the meaning of Article 7 of the Convention. This complaint must therefore be dismissed as being incompatible ratione materiae with the provisions of the Convention.
C. Article 8 of the Convention
1. The applicant's submissions
15. The applicant considered the Tribunal's conclusions in respect of his lack of private and family life in the United Kingdom to be unreasonable. Before going to prison, he had lived with his stepmother. His older brother and his brother's wife and daughter lived in the same house. His stepbrother lived close by. The family were close knit and maintained regular contact. It was unreasonable to suggest that, after the length of time he had spent in the United Kingdom, he was likely to readjust to life in Bangladesh; the fact that all his close family were not in the United Kingdom meant he was no more likely to readjust to life there than someone who had never been there. While there was a presumption that foreign nationals who had been given sentences of twelve months or more should be deported, his sentence was at the lower end of that scale. There was no history of violence in any of his offences and the pre-sentence report which had been prepared on him indicated that he did not pose a serious risk of harm to the public.
2. The Court's assessment
(a) Was there an interference with the applicant's right to respect for his family and private life?
16. The Court notes that the Asylum and Immigration Tribunal found that the applicant's deportation would not interfere with either his private or family life in the United Kingdom. It also recalls that in immigration cases it has held that there will be no family life between parents and adult children unless they can demonstrate additional elements of dependence (Iyisan v. the United Kingdom (dec.), no. 7673/08, 9 February 2010; Kwakye-Ntl and Dufie v. the Netherlands (dec.), no. 31519/96, 7 November 2000). The same considerations must also apply to adult siblings (see, for example, Onur v. the United Kingdom, no. 27319/07, § 45, 17 February 2009). Consequently, the Court accepts the Tribunal's conclusion in respect of a lack of interference with the applicant's right to respect for his family life. However, in respect of the applicant's private life, the Court recalls the Grand Chamber's finding in Maslov v. Austria [GC], no. 1638/03, § 63, 23 June 2008, that:
“[A]s Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual's social identity, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of 'private life' within the meaning of Article 8. Regardless of the existence or otherwise of a 'family life', the expulsion of a settled migrant therefore constitutes an interference with his or her right to respect for private life.”
17. On the basis of that finding, the Court is unable to accept the Tribunal's finding that, because the applicant had spent eleven years either in prison or abusing drugs, his deportation would not engage Article 8. There is nothing in the case file to indicate that all the applicant's ties with his family and others were severed when he was in prison or abusing drugs. Moreover, the Court considers that, in the sixteen years that he was in the United Kingdom as a settled migrant, the applicant must have accumulated social ties to the community in which he lived. It is clear, therefore, that he enjoyed private life in the United Kingdom. It is equally clear that the applicant's deportation has an impact on his ability to develop the family relationships, friendships and other social ties he had in the United Kingdom; indeed it will be a rare case where a settled migrant will be unable to demonstrate that his or her deportation has interfered with his or her private life as guaranteed by Article 8. Not all settled migrants will have equally strong family or social ties in the Contracting State where they reside but the comparative strength or weakness of those ties is, in the majority of cases, more appropriately considered in assessing the proportionality of the applicant's deportation under Article 8 § 2.
18. In the present case, therefore, the Court finds that the applicant's deportation was an interference with his right to respect for his private life in the United Kingdom. Such an interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, as pursuing one or more of the legitimate aims listed therein, and as being “necessary in a democratic society” in order to achieve the aim or aims concerned.
b. Was the deportation in accordance with the law and did it pursue a legitimate aim?
19. The expression “in accordance with the law” requires first, that the impugned measure should have a basis in domestic law, but also refers to the quality of the law in question, requiring that it be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, §§ 47-49, Series A no. 30).
20. In the applicant's case, the Court notes that he has relied, albeit under Article 7, on the change to paragraph 364 of the Immigration Rules in July 2006, which created a presumption that the public interest required deportation. However, it also notes that, while the applicant was sentenced in June 2006 (that is, prior to the change to paragraph 364), his deportation was not ordered until November 2006. The deportation order was made by the Secretary of State in accordance with the amended version of paragraph 364.
21. In any event, as the Court noted in Onur, cited above, § 49, paragraph 364 of the Immigration Rules did not contain the power to deport, but rather set out the factors that immigration officials were to consider in deciding whether deportation would be conducive to the public good and clarified how those factors should be weighed against the public interest. The power to deport was contained in section 3(5)(b) of the Immigration Act 1971 (“the 1971 Act”), which provided that a person who was not a British citizen would be liable to deportation if the Secretary of State deemed his deportation to be conducive to the public good. The legal basis for the impugned measure, for the purposes of Article 8 of the Convention, was therefore section 3(5)(b) of the 1971 Act read together with paragraph 364 of the Immigration Rules.
22. In the present case, as in Onur, regardless of which version of paragraph 364 applied to his case, the applicant could reasonably have been expected to foresee that the theft for which he was sentenced in June 2006 was serious enough to make him liable to deportation to Bangladesh. His deportation was therefore in accordance with the law. The Court also finds that the deportation served the legitimate aims of “the interest of public safety” and “the prevention of disorder and crime”.
c. Was the deportation “necessary in democratic society”?
23. In a case like the present one, where the person who has been deported is a young adult who has not yet founded a family of his own, the relevant criteria in assessing whether the deportation of a young adult is necessary in a democracy society (in the sense of being proportionate to the legitimate aim pursued) were restated by the Grand Chamber in Maslov, cited above, §§ 71-76. They include:
– the nature and seriousness of the offence committed by the applicant;
– the length of the applicant's stay in the country from which he or she is to be expelled;
– the time elapsed since the offence was committed and the applicant's conduct during that period;
– the solidity of social, cultural and family ties with the host country and with the country of destination.
24. The Grand Chamber also stated that:
“72. The Court would also clarify that the age of the person concerned can play a role when applying some of the above criteria. For instance, when assessing the nature and seriousness of the offences committed by an applicant, it has to be taken into account whether he or she committed them as a juvenile or as an adult (see, for instance, Moustaquim v. Belgium, judgment of 18 February 1991, Series A no. 193, p. 19, § 44, and Radovanovic v. Austria, no. 42703/98, § 35, 22 April 2004).
73. In turn, when assessing the length of the applicant's stay in the country from which he or she is to be expelled and the solidity of the social, cultural and family ties with the host country, it evidently makes a difference whether the person concerned had already come to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult. This tendency is also reflected in various Council of Europe instruments, in particular in Committee of Ministers Recommendations Rec (2001)15 and Rec (2002)4 (see paragraphs 34-35 above).
74. Although Article 8 provides no absolute protection against expulsion for any category of aliens (see Üner, cited above, § 55), including those who were born in the host country or moved there in their early childhood, the Court has already found that regard is to be had to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there (see Üner, § 58 in fine).
75. In short, the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile.
76. Finally, the Court reiterates that national authorities enjoy a certain margin of appreciation when assessing whether an interference with a right protected by Article 8 was necessary in a democratic society and proportionate to the legitimate aim pursued ...”
In Maslov's case, he had arrived in Austria from Bulgaria aged six and committed a series of non-violent offences, the majority of which involved burglary. All the offences were committed while he was under eighteen. He had no relatives or contacts in Bulgaria and did not speak Bulgarian. The Grand Chamber found there had been a violation of Article 8. It regarded the young age of the applicant and, with one exception, the non-violent nature of his offences as the decisive features of the case (§ 81 of the judgment). Where juvenile offenders were concerned, the State's obligation to take the best interests of the child into account included an obligation to facilitate his or her reintegration (ibid., § 83). It was also of some relevance that the applicant had committed no further offences while the deportation proceedings were pending and that he had no close ties with Bulgaria. By contrast, the ten-year exclusion order imposed on the applicant was not decisive as it banned him from living in Austria for almost as much time as he had spent there and did so for “a decisive period of his life” (§ 99 of the judgment).
25. Turning to the present case, the Court accepts that the applicant has spent a significant period of time in the United Kingdom and that the majority of his social, cultural and family ties are there rather than in Bangladesh. However, despite the relatively young age at which he arrived in the United Kingdom, the Court is not persuaded that he has severed all links to Bangladesh. His mother still lives Bangladesh and, as the Tribunal found, he would be able to rely on her and any extended family for support. In contrast to Mr Maslov, the present applicant speaks the language of his country of origin. Although both Mr Maslov and the applicant were convicted of mostly non-violent offences, the applicant's offences are of a quite different character. With the exception of the first burglary offence, they were all committed when the applicant was an adult and there cannot be the same duty to facilitate the reintegration of an adult offender rather than deport him as there would be for a juvenile offender who is convicted of the same offences. The applicant's offences appear to have been committed in order to fund a drug addiction, a factor which must go some way to mitigating if not the seriousness of the offences then at least the sentences imposed. Indeed, the domestic courts have made efforts to rehabilitate the applicant by imposing a series of non-custodial sentences. Nonetheless, by the time of the final offence, they were entitled to take the view that further such efforts would be inappropriate. Therefore, while the applicant is correct to observe that his final sentence of twelve months' imprisonment was at the lower end of the scale to which a presumption in favour of deportation would apply, the domestic authorities were entitled to take into account that this was the last in a series of offences and that the applicant had failed to respond to other, less severe sentences. Finally, while the duration of the deportation imposed on the applicant is of the same duration as that imposed in Maslov, it does not exclude him from the United Kingdom for as much time as he spent there and does not do so for a decisive period in his life. The Court therefore finds that the domestic authorities have not exceeded the margin of appreciation afforded to them in such cases. A fair balance has been struck in this case and the Court therefore agrees with the Tribunal that the applicant's deportation was proportionate to the legitimate aim pursued. Accordingly, this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Lech
MIAH v. THE UNITED KINGDOM DECISION
MIAH v. THE UNITED KINGDOM DECISION