The European Court of Human Rights gave judgment in the case of Otite v the United Kingdom (application no. 18339/19) today. The court found that there was no violation of Mr Otite’s Article 8 right to respect for private and family life, despite his family ties and previous granting of Indefinite Leave to Remain in the United Kingdom.

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 subsequent application to naturalise as a British citizen in May 2013, was refused. And in October 2015 Mr Otite was served with a notice of his liability for deportation after another conviction in 2014 led to a four-year-and-eight-month prison sentence.

The First-tier Tribunal considered that deportation would be unduly harsh, but the Upper Tribunal set aside that decision and dismissed Mr Otite’s appeal. The effect on his wife and children seemed to be decided solely on the tests set out in paragraphs 398 and 399D of the Immigration Rules, and section 117C of the Nationality, Immigration and Asylum Act 2002 (as inserted by section 19 of the Immigration Act 2014). And this court commented on the Upper Tribunal’s failure to explicitly consider the relevant case-law in its reasoning:

“…Insofar as it considered those factors identified by the Court in its Boultif and Üner judgments at all (see paragraphs 36 and 37 above), it did so without explicit reference to those judgments and solely within the framework provided by the Immigration Rules, with a view to determining whether the impact of the applicant’s deportation on his wife and children would be “unduly harsh” and whether there existed any additional “very compelling circumstances” required in order for his appeal to succeed. As the Upper Tribunal did not conduct the balancing exercise as required by Article 8 of the Convention, it therefore falls to the Court, in exercise of its supervisory jurisdiction, to give the final ruling on whether the applicant’s expulsion would be reconcilable with that Article 8 (see Unuane, cited above, § 85).”

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With five votes to two, the European Court of Human Rights agreed with the Upper Tribunal’s ultimate decision.

Mr Otite’s deportation would undoubtedly be difficult for his family, but the court heard no evidence that they were in absolute need of his support. The family had already coped with his lengthy absence whilst in prison and immigration detention, and have significant community ties of their own. The court held that the public interest in deporting him, because of his criminal convictions, outweighed his article 8 right to respect for private and family life.