By Jessie Yang
On 27 September 2022, the European Court of Human Rights (ECtHR) gave a judgment on Otite v. The United Kingdom, concerning the deportation of a Nigerian national. The Court held that there was no violation of Mr. Otite’s rights to respect for private and family life under Article 8 of the European Convention on Human Rights. This is despite his previous granting of Indefinite Leave to Remain and family ties in the United Kingdom.
Case background
The Applicant, Mr. Otite is a Nigerian national who first entered the United Kingdom in 2003 as the spouse of a settled person. His wife, also of Nigerian origin, is a British citizen, as are his three children (aged 19, 17 and 12). In September 2004, Mr. Otite was granted Indefinite Leave to Remain. In 2007 he was found guilty of a criminal offence and received a suspended sentence. His application to naturalise as a British citizen was subsequently refused in May 2013. In October 2015, Mr. Otite was served with a notice of his liability for deportation after another conviction in 2014 which led to a four-year and eight months prison sentence.
The Applicant’s argument
1. His deportation would breach his rights to respect for his private and family life under Art. 8 of the European Convention on Human Rights.
2. The decision of the Upper Tribunal fell short of the balancing exercise required by the case-law of the Court.
The decision of the European Court of Human Rights
The First-tier Tribunal held that the effect of the deportation that would have on the Applicant’s wife and children, who are all British citizens, would be ‘unduly harsh.’ The Upper Tribunal set aside that decision and dismissed Mr. Otite’s appeal. The ECtHR agreed with the ruling of the Upper Tribunal
In assessing Mr. Otite’s appeal, the ECtHR carried out a ‘balancing exercise’ to determine whether the deportation order struck a fair balance between Mr. Otite’s Art. 8 Convention rights on the one hand and the interests of the UK community on the other.
It ultimately held that there would be no violation of Article 8 in the deportation of the Applicant and that the deportation order was in accordance with the law and in pursuit of a legitimate aim (namely, the prevention of crime) for the purposes of Art. 8(2) of the ECHR.
In reaching the decision, the ECtHR considered and concluded the following:
1. The fraud committed by the Applicant was serious and that 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.
2. There was a risk that the Applicant might reoffend and engage in further crimes in the foreseeable future. Hence, the deportation order was in pursuit of a legitimate aim.
3. Mr. Otite had left his home country, Nigeria at the age of 31. It was likely that he had family, social, and linguistic ties there.
4. In all decisions concerning children, their best interests have to be given significant weight.
5. There is a lack of evidence to show that Mr. Otite’s wife and children were in absolute need of his support. In fact, the family had coped with his lengthy absence and had developed community ties of their own whilst he was serving his sentence in prison and immigration detention.
For the above reasons, the ECtHR held that the strength of the applicant’s family and private life in the UK does not outweigh the public interest in his deportation. Accordingly, Mr. Otite’s deportation would not violate his rights under Art. 8 of the Convention.
Our comments
The holding in Otite v United Kingdom means that there would be no violation of Art. 8 rights in the deportation of a person who has family and the status of Indefinite Leave to Remain in the UK should the Court find that the effect the deportation would have on the person’s family who are all British citizens would not be ‘unduly harsh.’
Further, in the future, the Court will be more likely or continue to give more weight to the protection of public interest when carrying out the ‘balancing exercise’ to determine whether the deportation order struck a fair balance between the applicant’s Convention rights and the public interests. Lastly, the decision also means that an applicant would not be able to rely on their or their family’s settled status to resist being deported from the UK, nor could they claim that their deportation would breach their Art. 8 rights, provided that the ‘unduly harsh’ test has not been met.
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