ECtHR releases decision in Balogun v. the United Kingdom (Application no. 60286/09) [Article 3, 8 ECHR]

Friday, October 4, 2013

The applicant, Moshood Abiola Balogun, is a Nigerian national who was born in 1986 and has been living in the United Kingdom since the age of three. Convicted of serious drugs-related offenses, he was sentenced to three years imprisonment in 2007 and informed of the authorities intention to deport him. His appeal against deportation was rejected by the Asylum and Immigration Tribunal in March 2008. The Tribunal found in particular that, although Mr Balogun had been in the UK since a young age and had some familial relationships there, his deportation would not be disproportionate, given his serious criminal record for drugs-related offenses and the public interest in preventing crime. The authorities detained Mr Balogun on 10 November 2009 with a view to deporting him nine days later. Following that, Mr Balogun asked the Court to prevent his deportation by allowing his request for interim measures under Rule 39 of the Rules of Court. The Court granted his request on 18 November 2009, initially for a period of two weeks, and, on 8 December 2009, until further notice. Mr Balogun submitted to the Court a psychiatric report of September 2009 which indicated that he had attempted suicide in August 2009 and had continued to express feelings of despair throughout his in-patient treatment which had lasted until 7 September that year. The Government informed the Court in December 2009 that, while previously unaware of Mr Balogun's attempted suicide, they had duly considered the report and had taken various measures to protect him from any harm he might cause himself. To that end, he was under constant supervision by trained staff at the detention center where he awaited deportation; he would be provided with suitable escorts during his removal; and the Government had established - including through a fact-finding mission - that there were sufficient mental health facilities in Nigeria which would be available to him if needed. Mr Balogun was released from immigration detention on 13 January 2010.

Article 3
The Court recalled that aliens who were subject to expulsion could not, in principle, claim any right to remain on the territory of a State party to the European Convention in order to continue to benefit from medical, social or other forms of assistance, unless their removal would expose them to a serious risk of ill-treatment. In addition, in order to breach Article 3, the treatment an applicant risked had to reach a minimum level of severity. The British Government were now fully aware of the risk posed by Mr Balogun to himself and had taken a number of precautions in that regard. In view of that, and of the existence in Nigeria of adequate psychiatric care should Mr Balogun need it, the Court rejected his complaint under Article 3 as inadmissible.

Interim measure (Rule 39):
In view of the above, the Court discontinued the application of the interim measure it had indicated to the British Government under Rule 39 of the Rules of Court.

Article 8
The Court found, having regard to the conclusions of the Asylum and Immigration Tribunal and to the nature of the relationships which Mr Balogun had with his girlfriend and relatives, that Mr Balogun did not have a family life in the UK. However, it was clear that he enjoyed a private life in the UK in which his various relationships played an important part. The Court further held that, if the British authorities were to deport the applicant, it would be a lawful measure and one pursuing a legitimate aim, namely the prevention of crime. It only remained to be examined whether a possible deportation would also be “necessary in a democratic society”. The Court recognized that, as Mr Balogun had been living in the UK since the age of three and could be considered a settled migrant who had spent virtually the whole of his childhood there, very serious reasons were required to justify his expulsion. The Court attached considerable weight to the fact that Mr Balogun had been convicted several times of serious drugs-related offenses, which could be categorized as particularly grave given the destructive effects such offenses had on society as a whole. Furthermore, he had committed most of his offenses as an adult, hence had been fully responsible for his actions. Although the Court expressed some sympathy for the applicant, it found that he could not use the unfortunate circumstances of his upbringing as an excuse for his criminal conduct. In view of all the circumstances of Mr Balogun's case, and paying specific regard both to his history of drugs-related offending as an adult and to the careful consideration given to his situation by the British authorities, the Court concluded that his deportation would not be disproportionate. There would, therefore, be no violation of Article 8, if Mr Balogun were deported to Nigeria.

Judges De Gaetano expressed a separate opinion and Judges Garlicki and Thór Björgvinsson  expressed a joint dissenting opinion. These opinions are annexed to the judgment.

For the full text of the judgment please visit: ECtHR: Balogun v. the United Kingdom (Application No. 60286/09)

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Assessment of facts and circumstances
Manifestly unfounded application
Real risk
Inhuman or degrading treatment or punishment
Family unity (right to)