OSAGIEDE proti Spojenému království

FOURTH SECTION

DECISION

Application no. 228/20
Osayuwamen OSAGIEDE
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 7 February 2023 as a Committee composed of:

Branko Lubarda, President,
Tim Eicke,
Ana Maria Guerra Martins, judges,
and Valentin Nicolescu, Acting Deputy Section Registrar,

Having regard to:

the application (no. 228/20) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 December 2019 by a Nigerian national, Mr Osayuwamen Osagiede, who was born in 1980 and lives in Leeds (“the applicant”) who had been granted legal aid and was represented by Mr J. Luqmani of Luqmani Thompson & Partners Solicitors and Mr S. Clark of Garden Court Chambers, lawyers practising in London;

the decision to give notice of the complaint concerning Article 8 of the Convention to the Government of the United Kingdom (“the Government”), represented by their Agent, Ms K. Hamilton of the Foreign, Commonwealth and Development Office;

the observations on admissibility submitted by the respondent Government and the observations in reply submitted by the applicant;

the submissions of the AIRE Centre and the Joint Council for the Welfare of Immigrants, who were granted leave the intervene as third parties;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. On 3 May 2017 a deportation order was issued after the applicant was sentenced to fifteen months’ imprisonment for affray. On 5 January 2018 the First Tier Tribunal allowed the applicant’s appeal against the deportation order, but on 21 August 2018 the Upper Tribunal set that decision aside. On 14 January 2019, applying section 117C(3)-(5) of the Nationality, Immigration and Asylum Act 2002 (as amended) and paragraph 399 of the Immigration Rules HC 395 (as amended), the Upper Tribunal substituted a determination dismissing the appeal on the basis that the evidence did not establish either that it would be unduly harsh for the applicant’s wife and children to remain in the United Kingdom without him, or that there existed “very compelling circumstances” capable of outweighing the public interest in deportation (see Unuane v. the United Kingdom, no. 80343/17, 24 November 2020).

2. On 13 November 2019 the applicant was refused permission to appeal to the Court of Appeal.

3. The applicant then complained to the Court under Article 8 of the Convention, and that complaint was communicated to the Government on 29 March 2021.

4. On 12 July 2021 the applicant’s representatives wrote to the Secretary of State for the Home Department requesting fresh consideration of the applicant’s claim under Article 8 of the Convention on the basis of new material. This new material included an assessment of the applicant’s two children by an independent social worker; witness statements by the applicant and his wife which detailed his role in caring for the children, and doctors’ letters confirming that the applicant’s two children were registered in local practices. The Secretary of State treated this correspondence as further submissions for a fresh claim under Article 8 of the Convention and undertook a further review of the applicant’s case in light of the new evidence provided to her. That review concluded on 2 September 2021, with the Secretary of State finding that the applicant’s deportation would not violate the Article 8 rights of the applicant or his family. On 15 September 2021 the applicant appealed that further decision and that appeal is currently pending before the First-Tier Tribunal.

5. In his submissions to the First-Tier Tribunal the applicant indicated that his wife was pregnant with a third child, and that the impact of his deportation on her would therefore be more severe. He also relied on the fact that he had not reoffended following the Upper Tribunal decision as evidence of his rehabilitation.

THE COURT’S ASSESSMENT

6. Invoking Article 8 of the Convention, the applicant complains that his deportation to Nigeria would constitute a disproportionate interference with his right to respect for his family life.

7. The Government underline that if the First-Tier Tribunal upholds the Secretary of State’s decision, the applicant will be able to appeal to the Upper Tribunal. Thereafter, a further right of appeal would lie to the Court of Appeal. On that basis, they contend that the applicant has not exhausted domestic remedies as required by Article 35 § 1 of the Convention. In their submissions, the domestic route of appeal to the First-Tier Tribunal, the Upper Tribunal and the Court of Appeal constitutes an effective remedy as the tribunals and courts will have full powers to quash the decision to deport the applicant, including on the ground that deportation would be incompatible with his Convention rights. While the Government accept that the determination in the prior appeal proceedings would be a “starting point” in the new appeal proceedings, the First-Tier Tribunal, Upper Tribunal and Court of Appeal would not be bound by that prior decision. Furthermore, they could take into account evidence that was not before the Upper Tribunal when it made its earlier decision, and facts that had occurred since.

8. The Government also denied that the domestic appeal proceedings had been beset by any undue delay.

9. The applicant, on the other hand, contends that the ongoing appeal proceedings are incapable of providing adequate redress for his complaint, since the new appeal will be determined by the previous appeal except to the extent that he can show that new, credible evidence relating to his personal circumstances has been secured or that there has been a significant change in objective country circumstances.

10. The applicant also contends that further appeal proceedings cannot be considered an effective remedy given the length of proceedings to date. The original deportation decision was made on 3 May 2017. If he was required to exhaust this new appeal route it is his contention that there would be no likely outcome until 2023 at the earliest.

11. Under Article 35 § 1 of the Convention, the Court may only deal with an application after the exhaustion of those available and sufficient domestic remedies that relate to the breaches alleged. It is incumbent on the Government pleading non-exhaustion to satisfy the Court that a remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see, in particular, Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999‑V; Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II; Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 others, § 74, 25 March 2014, and Gherghina v. Romania [GC] (dec.), no. 42219/07, § 85, 9 July 2015). Once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact used or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996‑IV, and Prencipe v. Monaco, no. 43376/06, § 93, 16 July 2009).

12. In the present case, the remedy in question – a fresh claim under Article 8 of the Convention – was undoubtedly available to the applicant. Moreover, the new evidence submitted by the applicant to both the Secretary of State and the First-Tier Tribunal was relevant to the alleged interference with his right to respect for his family life under Article 8 of the Convention. Even if the domestic courts and tribunals are required to take the Upper Tribunal’s previous determination as a “starting point”, they will nevertheless have to revaluate the proportionality of the applicant’s deportation in light of this new material. In doing so, they will have to have particular regard to the impact of deportation on his wife and children, since it is to this question that the new material pertains. It is not in dispute that the tribunals and courts will have full powers to quash the decision to deport the applicant, including on the ground that deportation would be incompatible with his Convention rights (see paragraph 7 above). The Court is therefore satisfied that the ongoing appeals process offers the applicant an effective remedy that is capable of providing redress in respect of his Convention complaints. Finally, even though the Secretary of State, having reviewed the applicant’s claim in light of the new material, did not consider that his deportation would breach Article 8 of the Convention, there is no reason to believe that an appeal against this decision would not offer a reasonable prospect of success.

13. Therefore, regardless of whether Article 35 of the Convention required the applicant to initiate the new domestic proceedings in order to exhaust domestic remedies, the Court cannot ignore the fact that he is currently pursuing a domestic remedy which is capable of providing redress for his Convention complaints. It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. The Court cannot take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level (see Vučković and Others, cited above, § 69).

14. It is true that the requirement for an applicant to exhaust domestic remedies is normally determined with reference to the date on which the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts)), although the Court has accepted that the last stage of domestic remedies may be reached after the application has been lodged but before its admissibility has been determined (see Molla Sali v. Greece [GC], no. 20452/14, § 90, 19 December 2018 and Karoussiotis v. Portugal, no. 23205/08, § 57, 1 February 2011). However, the applicant in the present case did not lodge the present application shortly before domestic proceedings concluded; rather, he asked the Secretary of State to consider his case afresh after the present application had not only been lodged with the Court but also after it had been communicated to the Government. In such circumstances, the Court cannot be expected to postpone indefinitely its determination of the admissibility of the application to allow the requirements of Article 35 § 1 of the Convention to be satisfied.

15. Finally, the Court takes note of the applicant’s complaint about undue delay. However, there is no evidence of undue delay on the part of the authorities in the proceedings which have taken place to date (see paragraphs 1-2 and 4 above). In any event, even if the Court were to reject the Government’s inadmissibility plea, it could not consider the applicant’s Article 8 complaint while it was being reconsidered at the domestic level. As such, the present decision can have no impact on the overall length of proceedings in question.

16. In light of the foregoing, the Court considers that the applicant’s complaint under Article 8 of the Convention is inadmissible as being premature and/or on the ground that domestic remedies have not yet been exhausted. Accordingly, this complaint must be rejected as inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention. However, should the applicant be dissatisfied with the outcome of the ongoing domestic proceedings, and, in particular, should the domestic tribunals and courts fail to apply the relevant human rights standards consistently with the Convention and its case-law (see Ndidi v. the United Kingdom, no. 41215/14, § 76, 14 September 2017 and Unuane, cited above, § 76), it would be open to him to reintroduce his complaint under Article 8 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 March 2023.

Valentin Nicolescu Branko Lubarda
Acting Deputy Registrar President