Deportation of Non-Nationals and the Right to Respect for Family Life

Omojudi v United Kingdom [2009] ECHR 1820/08 (24 November 2009) The European Court of Human Rights has held that the deportation of Steven Omojudi from the United Kingdom to Nigeria was an unjustifiable interference with Omojudi’s right to respect for private and family life under art 8 of the European Convention on Human Rights.  Omojudi had lived in the UK for 26 years.  During this time, he had been convicted of two serious criminal offences.  In reaching its decision, the Court emphasised the long period during which Omojudi had not committed any offences and the significant disruption to his family life in the UK.

Facts

Omojudi is a Nigerian national who moved to the UK in 1982 when he was 22 years old.  He was joined by his partner in 1983.  Prior to his deportation, Omojudi lived with his wife, three children and one grandchild.

In 1989, Omojudi was convicted of theft and conspiracy for using a stolen passport, and sentenced to five years imprisonment.  In full knowledge of these previous offences, the Secretary of State for Home Department granted Omojudi and his wife Indefinite Leave to Remain in the UK from 2005.  In 2006, Omojudi was convicted of sexual assault, and sentenced to 15 months imprisonment.  In March 2007, the Secretary of State for the Home Department ordered that Omojudi be deported.  He was deported to Nigeria on 27 April 2008.

Decision

The Court held that the deportation unjustifiably interfered with Omojudi’s right to respect for family and private life under art 8 of the Convention.  It was common ground in the case that:

  • the deportation had a basis in domestic law and served a legitimate aim, being the prevention of disorder and crime; and
  • the deportation interfered with Omojudi’s right to private and family life under the Convention.

The key issue was whether the interference with Omojudi’s rights was ‘necessary in a democratic society’.  The Court gave examples of the factors relevant in determining whether deportation was ‘necessary’.  They include:

  • the nature and seriousness of the offence;
  • the length of the applicant’s stay in the country;
  • the age of the applicant’s children;
  • the seriousness of the difficulties which the spouse and the children are likely to encounter in the country to which the applicant is to be expelled; and
  • the solidity of ties with the host country and with the country of destination.

The Court attached great weight to the length of Omojudi’s residence in the UK.  The Court held that while Omojudi and his wife had spent ‘the formative years of their lives in Nigeria’, they now had ‘much stronger ties to the United Kingdom’.  The Court also noted that Omojudi’s teenage children were ‘not of an adaptable age’ and would encounter ‘significant difficulties’ if they relocated to Nigeria.  This justified the decision of Omojudi’s wife to remain in the UK despite her husband’s deportation to Nigeria, and ensured the disruption of family life.

The Court emphasised that Omojudi’s two serious criminal offences occurred 16 years apart.  In the intervening period, Omojudi had ‘largely stayed out of trouble’.  This indicated that there was no ‘history and pattern of reoffending’.  The Court also considered it relevant that the Secretary of State had granted Omojudi Indefinite Leave to Remain in 2005, fully aware of his first serious criminal offence.

The remedy awarded to Omojudi was damages of EUR 9000 (EUR 3000 for non-pecuniary damage, and EUR 6000 for legal costs and expenses).

Relevance to the Victorian Charter and to Australian Law and Policy

Omojudi primarily concerns the human rights implications of the power to deport non-nationals.  In Australia, the power of deportation is a Commonwealth power.  The Victorian Charter of Human Rights and Responsibilities Act 2006 does not govern the exercise of Commonwealth power.  A case regarding deportation from Australia would, therefore, not engage the Charter.

However, under s 32 of the Charter, judgments of international courts may be considered in interpreting a statutory provision.  This case may provide guidance to the interpretation of the right to protection from arbitrary interference with family under s 13 of the Charter.

Omojudi indicates that the existence of ‘family life’ can be easily established where there is co-habitation of parents and children under the age of 18.  These factors are likely to be similarly relevant to the existence of ‘family’ under the Charter. The Court held that ‘family life’ existed between Omodjui and his wife and two younger children, aged 17 and 18.  Co-habitation was the primary evidence of ‘family life’ that the Court relied upon.  The Court held that it was not necessary to determine whether ‘family life’ existed between Omojudi and his eldest child, aged 23, who had his own child, and still lived in the family home.

The Court’s consideration of whether the interference with Omojudi’s rights was ‘necessary in a democratic society’ may be relevant to the interpretation of s 7 of the Charter.  Section 7 states that a human right may be subject to limits that are ‘demonstrably justified in a free and democratic society’.  Omojudi indicates that a high threshold will be required before a limitation on a right will be considered ‘necessary’.  In this case, the Court held that the deportation of an individual who had committed nine criminal offences and served two jail sentences was not ‘necessary’ for the prevention of crime.

Considered more broadly, the case may also have future application to the Federal Government’s exercise of the power of deportation or removal.  There is currently no legislative human rights instrument at the federal level that restrains the power of deportation.  If a federal human rights instrument were introduced — and it protected the right to family life — the decision to deport a person could potentially be challenged on the basis that it interferes with the individual’s right to family life.

In the absence of a federal human rights instrument, the decision may still have current relevance to the power of deportation.  The right to protection from arbitrary interference with family is protected by art 17 of the International Covenant on Civil and Political Rights.  Australia is a signatory to the ICCPR and the First Optional Protocol to the Covenant.  An individual could make a communication to the Human Rights Committee under the Optional Protocol that their rights under art 17, among others, have been contravened by the deportation.  The case of Omojudi may be relevant to the Committee’s determination of the matter.

The decision is available at http://www.bailii.org/eu/cases/ECHR/2009/1942.html.

Lucy Maxwell and Liam Hickey, Summer Clerks, Mallesons Stephen Jaques Human Rights Law Group

MichelleBennettHuman Rights Law & Institutions