AFFAIRE OTITE c. ROYAUME-UNI

CourtFourth Section (European Court of Human Rights)
Judgment Date27 September 2022
ECLIECLI:CE:ECHR:2022:0927JUD001833919
CounselMARIAMPILLAI D.
Date27 September 2022
Application Number18339/19
Respondent StateUnited Kingdom
Applied Rules8;8-1;8-2

FOURTH SECTION

CASE OF OTITE v. THE UNITED KINGDOM

(Application no. 18339/19)

JUDGMENT

Art 8 • Expulsion • Private and family life • Deportation order against settled migrant after criminal conviction for serious fraud offence • Balancing exercise carried out only within Immigration Rules’ framework and not with reference to Court’s case-law • Impact on applicant’s family life not outweighing public interest in his deportation

STRASBOURG

27 September 2022

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.


In the case of Otite v. the United Kingdom,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Gabriele Kucsko-Stadlmayer, President,
Tim Eicke,
Faris Vehabović,
Iulia Antoanella Motoc,
Armen Harutyunyan,
Pere Pastor Vilanova,
Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 18339/19) 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”) by a Nigerian national, Mr Junior Otite (“the applicant”), on 1 April 2019;

the decision to give notice to the United Kingdom Government (“the Government”) of the complaint concerning Article 8 of the Convention;

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

the comments submitted by The Joint Council for the Welfare of Immigrants and The Aire Centre, who were granted leave to intervene by the President of the Section;

Having deliberated in private on 5 July 2022,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The applicant complained that his expulsion would breach his right to respect for his private and family life as provided for by Article 8 of the Convention, and that the final domestic decision fell short of the Article 8 balancing exercised require by the case-law of the Court.

THE FACTS

2. The applicant, Mr Junior Otite, is a Nigerian national, who was born in 1972 and lives in Orpington. He is represented before the Court by Mr D. Mariampillai, a lawyer practising in London with David Benson Solicitors.

3. The United Kingdom Government (“the Government”) are represented by their Agent, Ms K. Hamilton of the Foreign, Commonwealth and Development Office.

4. The facts of the case may be summarised as follows.

  1. BACKGROUND

5. The applicant, who was born in Nigeria, entered the United Kingdom in 2003, at the age of thirty-one, as the spouse of a settled person. His wife, who is also of Nigerian origin, was born in the United Kingdom and is a British citizen.

6. The applicant and his wife have three children, who were born in 2003, 2005 and 2010. They are all British citizens. In 2016 his eldest daughter was diagnosed with type 1 insulin-dependent diabetes.

7. On 28 September 2004 the applicant was granted Indefinite Leave to Remain. On 16 July 2010 he was granted Indefinite Leave to Remain with no time limit (an administrative process which confirmed his existing Indefinite Leave to Remain status on a Biometric Residence Permit).

8. In addition to a number of driving convictions, in 2007 the applicant was convicted for tendering a false statement. He received a suspended sentence. On 21 May 2013 an application for naturalisation as a British citizen was refused on account of his criminal record.

9. On 24 November 2014 the applicant was convicted on two counts of conspiracy to make or supply articles for use in fraud. He was subsequently sentenced to a period of four years and eight months imprisonment. According to the judge’s sentencing remarks, between January 2010 and January 2014 the applicant operated a document factory, producing extensively documents for use in fraud. An examination of his emails and computers had revealed lists of thousands of names and addresses of people considered to be potential victims of advanced fee frauds. While it was not easy to determine the full extent of the losses suffered by others as a result of the fraudulent documents, the judge was satisfied that it would be “well over £100,000 if not several hundred thousand pounds”. One identified victim of an advanced fee fraud appeared to have lost EUR 140,000. As the applicant had performed a leading role in an activity conducted over a sustained period of time which had the potential to facilitate fraudulent acts involving large numbers of victims and involving significant sums, the judge considered that the offence fell into the categories of “high culpability” and “greater harm”.

  1. DEPORTATION PROCEEDINGS

10. Pursuant to section 32(5) of the United Kingdom Borders Act 2007 the Secretary of State for...

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