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23 April 2010
FOURTH
SECTION
Application no.
53573/09
by Mamajang JALLOW
against the United Kingdom
lodged
on 20 September 2009
STATEMENT OF FACTS
THE FACTS
- The
first applicant, Mr Mamajang Jallow, is a Gambian national who was
born in 1980 and lives in Gatwick. He is represented before the Court
by Ms H. Weber of Refugee and Migrant Justice, a lawyer practising in
London.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicants, may be summarised
as follows.
- The
first applicant met the second applicant, a British citizen, while
she was on holiday in Gambia. They married in Banjul on 23 March
2006. On 16 May 2006 the first applicant obtained a settlement visa
permitting him to enter and remain in the United Kingdom as the
spouse of a British citizen until 16 May 2008.
- On
15 October 2007 the second applicant gave birth to a daughter, the
third applicant, who is a British citizen.
- On
17 March 2008 the first applicant was convicted of being in
possession of cannabis. He was fined GBP 75 and was ordered to pay
GBP 60 costs. On 3 April 2008 he was arrested for the possession
of cannabis with the intent to supply. While he was in custody, the
first applicant submitted an application for settlement as the spouse
of a person present and settled in the United Kingdom. On 7 July 2008
the first applicant was convicted at the Portsmouth Crown Court on a
guilty plea of possession of a Class C drug with intent to supply.
Following his conviction, the application for settlement was refused
by the Secretary of State for the Home Department.
- The
pre-sentence report indicated that the first applicant had started
selling drugs in January 2008 and he did so three to four times per
week. The report further indicated that the first applicant presented
a low to medium risk of reconviction and a low risk of causing
serious harm to others. In sentencing the first applicant the judge
noted that he had been dealing on a reasonably substantial commercial
basis as the street value of the drugs was approximately GBP 6,400.
However, the judge took account of the first applicant's guilty plea
and sentenced him to eighteen months' imprisonment.
- The
first applicant did not appeal against conviction or sentence.
- On
30 September 2008 the first applicant made representations to the
Secretary of State for the Home Department. Those representations
were rejected on 17 December 2008.
- On
17 December 2008 the first applicant was served with a deportation
order.
- Following
allegations of the first applicant's infidelity, the second applicant
wrote to the Home Office on 29 December 2008 indicating her intention
to initiate divorce proceedings and asking that the applicant be
deported. However, she subsequently reconciled with the first
applicant and on 13 February 2009 her representatives wrote to the UK
Border Agency to confirm that she wished to continue with the
relationship and that the previous letter has been written as a
result of a misunderstanding. The second applicant also wrote to the
Secretary of State to ask that the first applicant not be deported.
- The
first applicant was due to be deported on 15 February 2009. At the
airport he made representations to the Immigration Officer which
resulted in the deportation being deferred. The fresh representations
were refused in a letter dated 4 March 2009. The Secretary of State
also declined to revoke the deportation order.
- The
first applicant appealed against this decision. In particular, he
submitted that as he and his family in Gambia were members of the
Fula tribe, the third applicant would not be able to live in Gambia
or visit him there as there was a risk that she would be “stolen
away” and circumcised. He further submitted that it would be
difficult for him and the second applicant to obtain work in Gambia
and they had no family members who could support them there. The
Asylum and Immigration Tribunal accepted that the first applicant had
established family life in the United Kingdom, although it noted that
he had lived with the second and third applicants for a relatively
short time. It also found that the third applicant would be at real
risk of being subjected to FGM in Gambia if she lived there
permanently or if she went there on holiday. Although the Tribunal
made this finding based on the lower standard of proof, it noted that
it would have made an identical finding if a balance of probabilities
test had been applied. Consequently, the Tribunal accepted that the
first applicant's deportation would extinguish his family life.
Finally, the Tribunal also found that it was unlikely that the first
and second applicants would find worthwhile employment in Gambia.
Nevertheless, the Tribunal held that the first applicant's
deportation would be proportionate in view of the gravity of the
offence of which he was convicted. Accordingly, it dismissed his
appeal.
- On
1 June 2009 a Senior Immigration Judge refused to grant an order for
reconsideration. On 5 August 2009 the High Court also dismissed the
application for reconsideration, noting that the Tribunal's
consideration of the difficult balancing exercise had been patently
thorough and took account of all relevant factors with particular
care, on the clear basis that the first applicant's deportation would
extinguish his family life with the second and third applicant.
B. Relevant domestic law and practice
- Section
3(5)(a) of the Immigration Act 1971 (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 this
decision on the grounds, inter alia, that the decision is
incompatible with the Convention.
- 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.
- A
person who has been deported may apply to have the deportation order
revoked. Paragraphs 390 to 392 of the Immigration Rules HC 395 (as
amended) provide that:
“390. 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.
391. In the case of an applicant who has
been deported following conviction for a criminal offence
continued exclusion
(i) in the case of a conviction which is
capable of being spent under the Rehabilitation of Offenders Act
1974, unless the conviction is spent within the meaning of that Act
or, if the conviction is spent in less than 10 years, 10 years have
elapsed since the making of the deportation order; or
(ii) in the case of a conviction not
capable of being spent under that Act, at any time, unless refusal to
revoke the deportation order would be contrary to the Human Rights
Convention or the Convention and Protocol Relating to the Status of
Refugees.
will
normally be the proper course. In other cases revocation of the order
will not normally be authorised unless the situation has been
materially altered, either by a change of circumstances since the
order was made, or by fresh information coming to light which was not
before, or the appellate authorities or the Secretary of State. The
passage of time since the person was deported may also in itself
amount to such a change of circumstances as to warrant revocation of
the order.
392. Revocation of a deportation order does
not entitle the person concerned to re-enter the United Kingdom; it
renders him eligible to apply for admission under the Immigration
Rules. Application for revocation of the order may be made to the
Entry Clearance Officer or direct to the Home Office.”
COMPLAINT
- The
applicants complain under Article 8 of the Convention that the
decision to deport the first applicant constituted an unjustified
interference with the right to respect for their family life.
QUESTION
Would the first applicant's deportation violate his right to respect
for his family and private life under Article 8 of the Convention?
