The UK government has successfully defended a deportation case at the European Court of Human Rights in Strasbourg. Judges decided that the right of a convicted criminal to a family life in the UK did not outweigh the public interest in deporting him to his native Nigeria.
Junior Otite, 49, was sentenced to four-and-a-half years years’ imprisonment in 2015 and served with a deportation order for his involvement in a fraud-related conspiracy. He had come to the UK in 2003 and was given indefinite leave to remain the following year. His wife and children, born in 2003, 2005 and 2010, are British citizens.
First-tier Tribunal
Otite was originally successful in the First-tier Tribunal immigration and asylum chamber. His appeal against deportation was allowed in 2017 by Peter Herbert OBE, who was sitting as a part-time tribunal judge.
At that time, Herbert chaired the Society of Black Lawyers. Last year, he settled claims that senior judges had discriminated against him on racial grounds. The Guardian reported that he had retired to Kenya.
Upper Tribunal
Overturning Herbert’s decision in 2018, Judge Ockleton, vice president of the Upper Tribunal immigration and asylum chamber, said it contained a number of errors of law.
The “most troubling” of these was that Herbert had said Otite “did not commit any offences between 2007 and 2014” — when in fact Otite had been involved in large-scale offending for four years during that period. He had operated a factory producing false documents that a court found were used by others to defraud victims of “well over £100,000 if not several hundred thousand pounds”.
Herbert also appeared to consider statutory exceptions to deportation that did not apply to a prisoner sentenced to four years or more — as Otite had been. And Herbert’s conclusion that Otite’s children were at risk of being taken into care appeared to be “wholly based on ill-informed speculation”.
After quoting from Herbert’s judgment, Ockleton said:
In making those remarks, the judge wholly exceeded his jurisdiction. Further, he overtly applied a racial factor in reaching his conclusions. Quite apart from that, there was no evidence before him of any sentence, other than that imposed on the claimant, which would have been “fair” in the light of the claimant’s offending.
He cites no material indicating that a sentence of four years and six months, already reduced because of the claimant’s family circumstances, was one of over four years only because of the claimant’s “ethnic or national origin”.
For these reasons, as it appears to me, even if the judge had been entitled to consider these matters, his reasoning is so lacking in evidence that it gives rise to very serious concerns about his approach to the judicial task…
Given that the judge thought that the case was finely balanced, but took into account inadmissible speculation on the claimant’s side of the case and applied a test which did not recognise the difficulty the claimant had to face, the decision cannot stand.
The Upper Tribunal allowed an appeal by the Home Office against Herbert’s decision.
European Court
The Strasbourg court upheld the Upper Tribunal’s ruling yesterday. This is how the court summarised its reasoning:
The [human rights] court recognised that the deportation order had a legal basis and was aimed at preventing disorder and crime. So the principal issue was to determine whether it struck a fair balance between Mr Otite’s convention rights on the one hand and the community’s interests on the other.
The court found that the Upper Tribunal had given detailed consideration to the facts of the case and had balanced the seriousness of the applicant’s offence against the likely impact on his family and private life [under article 8 of the human rights convention]…
However, it had not considered the difficulties his wife and children might face if they returned with him to Nigeria, as it did not think that that was a likely outcome. Also, its balancing exercise had been conducted solely within the framework provided by the immigration rules with a view to determining whether the impact of Mr Otite’s deportation on his family would be “unduly harsh” and whether there were any “very compelling circumstances” capable of outweighing the public interest in his deportation; it had not referred to the case-law of the court.
Therefore, as the Upper Tribunal had not conducted the balancing exercise required by the court’s case-law, the court conducted the balancing exercise itself. In so doing, it considered that the fraud offence committed by Mr Otite was serious and that multiple convictions for fraud outweighed the interests of a long-term resident alien who had only arrived in the country as an adult. Although he did not have multiple convictions, his offence had been conducted over a four-year period and had targeted a large number of victims and involved significant sums of money…
The [human rights] court recognised that in all decisions concerning children their best interests have to be given significant weight. But when an offender is being deported as a consequence of a criminal offence the deportation decision, first and foremost, concerns him. The court accepted that the family’s interests might be outweighed by other factors, including the seriousness of the offence.
While Mr Otite’s deportation would undoubtedly be difficult for his wife and children, there was nothing to suggest that they were in absolute need of his support. His children were now 19, 17 and 12 years old. His eldest daughter had type 1 diabetes, but it had not been shown that his presence in the UK was important for her physical well-being.
According to the evidence before the Upper Tribunal, the children had had no contact with him while he was in prison and, following that, while he had been detained in immigration detention. Mr Otite had not provided the court with any information about his release or about his conduct following his release.
The family, who had already coped with his lengthy absence, had ties in the community and would have a support network in the event of his deportation. In addition, although the Upper Tribunal had proceeded on the basis that Mr Otite’s family would not return to Nigeria with him, there was no evidence to suggest that they could not do so, especially as his wife was of Nigerian origin and his children would also be entitled to Nigerian citizenship.
Furthermore, as he had only left Nigeria at the age of 31, it was likely that he had family, social, cultural and linguistic ties there.
All things considered, the court concluded that the strength of the applicant’s family and private life in the UK was not such as to outweigh the public interest in his expulsion. The court held, by five votes to two, that Mr Otite’s deportation would not violate article 8 of the convention.
The British judge, Tim Eicke, was in the majority. The two dissenting judges were Iulia Antoanella Motoc (Romania) and Ana Maria Guerra Martins (Portugal).