Sex offender’s deportation was disproportionate

Sex offender’s deportation was disproportionate

European Court of Human Rights

Published December 15, 2009

Omojudi v United Kingdom

(Application No 1820/08)

Before L. Garlicki, President, and Judges Sir Nicolas Bratza, G. Bonello, L. Mijovic, P. Hirvelä, L. Bianku and N. Vucinic

Deputy Section Registrar F. Araci

Judgment November 24, 2008

Deporting a sex offender who had indefinite leave to remain and had lived in the United Kingdom for 26 years was disproportionate and a breach of his right to a family life.

The European Court of Human Rights held, unanimously, that the applicant’s deportation to Nigeria was in violation of article 8 of the European Convention on Human Rights, and was not proportionate to the legitimate aim pursued, namely, the prevention of disorder and crime.

The applicant, Steven O. Omojudi, a Nigerian national born in 1960, was currently living in Nigeria. A former settled immigrant in the United Kingdom, Mr Omojudi complained that, following his conviction for a sexual offence, he was deported to Nigeria. Before his deportation he had lived in the UK for 26 consecutive years.

In its judgdment, the Court held that the measures complained of interfered with both the applicant’s private life and his family life.

Such interference would be in breach of article 8 unless it was justified under article 8.2 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.

It was not in dispute that the impugned measures had a basis in domestic law and that the interference served a legitimate aim, namely, the prevention of disorder and crime.

The relevant criteria that the Court used was whether an expulsion measure was necessary in a democratic society, on the basis of its well established case law: see Üner v The Netherlands (Application No 46410/99) ([2006] ECHR paragraphs 57-58; [2006) EHRR 14).

The Court observed that the applicant’s most serious offences had been committed in 1989 and 2005. It attached considerable weight to the fact that the Secretary of State for the Home Department, who was fully aware of the applicant’s offending history, granted him indefinite leave to remain in the UK in 2005.

It followed that in assessing whether the interference with the applicant’s family and private life was necessary in a democratic society, the only relevant offences were those committed after the applicant was granted indefinite leave to remain.

The Court attached considerable weight to the solidity of the applicant’s family ties in the UK and the difficulties that his family would face were they to return to Nigeria.

The Court accepted that the applicant’s wife was also an adult when she left Nigeria and it was therefore likely that she would be able to re-adjust to life there if she were to return to live with the applicant. She had, however, lived in the UK for 26 years and her ties to the UK were strong.

Her two youngest children, born in the UK in 1991 and 1992, had lived there their whole lives. They were not of an adaptable age and would likely encounter significant difficulties if they were to relocate to Nigeria.

It would be virtually impossible for the oldest child, born in 1986, to relocate to Nigeria as he had a daughter, aged two, born in the UK. Consequently, the applicant’s wife has chosen to remain in the UK with her children and granddaughter.

The applicant’s family could, of course, continue to contact him by letter or telephone, and they could also visit him in Nigeria from time to time, but the disruption to their family life should not be underestimated.

Having regard to the circumstances, the Court found, unanimously, that the applicant’s deportation was not proportionate to the legitimate aim pursued. There had accordingly been a violation of article 8.

The Court awarded the applicant €3,000 for non-pecuniary damage and €6,000 for costs and expenses.