Deportation of Migrant following Criminal Conviction: European Convention on Human Rights, Article 8

AuthorVanessa Bettinson
DOI10.1350/jcla.2010.74.2.623
Published date01 April 2010
Date01 April 2010
Subject MatterEuropean Court of Human Rights
European Court of Human Rights
Deportation of Migrant Following Criminal Conviction:
European Convention on Human Rights, Article 8
Omojudi vUnited Kingdom (Application No. 1820/08, 24 November
2009)
Keywords Deportation following criminal conviction; Long-settled mi-
grant; Right to family life; Virtual national
On 19 November 2006 the applicant was convicted of a sexual assault
that was considered to be particularly serious as the applicant had
committed the offence in a position of trust. He was sentenced to 15
months’ imprisonment, with half to be spent on licence, and was placed
on the sex offender register. The judge did not make a recommendation
for deportation. The applicant was a Nigerian national who came to the
UK in 1982 with leave to enter the UK as a student, which was extended
until 15 January 1986. He married his partner, another Nigerian
national, in the UK in 1987 and they had three children. All the children
were British nationals and being educated in the UK. The applicant had
also become a grandparent and the applicant’s wife played a significant
role in taking care of the child. After the expiry of his initial leave period
the applicant’s application for a further extension was refused and he
was later served with two deportation orders following an incident
where he was caught returning from the Netherlands using a British
visitor’s passport he had obtained by deception. He was not prosecuted
for this offence. The deportation orders were served on 31 July 1987 and
4 December 1990. However, on 7 March 1989 the applicant was con-
victed of theft and conspiracy to defraud and sentenced to four years’
imprisonment. He and his wife then applied for leave to remain under
an overstayer’s regularisation scheme. They were both granted indefin-
ite leave to remain on 18 April 2005.
With this background the Secretary of State for the Home Depart-
ment issued a deportation order on 31 March 2007 following the
applicant’s conviction for the sexual assault offence. The basis for the
order was that it is was necessary for the prevention of disorder and
crime and for the protection of health and morals. On appeal against the
deportation order the judge determined that despite the fact that the
applicant did have an established family life in the UK and deportation
would interfere with that life, the deportation was nonetheless propor-
tionate as the applicant remained a potential offender who posed a
threat to society. His requests for judicial review were denied and he was
deported on 27 April 2008. A risk-assessment report produced by the
Probation Service was finally disclosed to the applicant two days before
his deportation and indicated that he was considered to pose a low risk
of reoffending.
113The Journal of Criminal Law (2010) 74 JCL 113–117
doi:10.1350/jcla.2010.74.2.623

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