Nicknamed “Bruiser” for “roughing up” his minions in the underworld of drug dealing, Ifeanyi Chukwu Ndidi, a Nigerian, entered the UK aged two with his mother and two siblings in 1989. He got badly roughed up in the immigration appeals system for his sins and his 28-year residence in the UK failed to trump the public interest in deporting him. The ECtHR agreed with the UK courts and authorities that his deportation was justified. Ndidi’s mother overstayed as a visitor and claimed asylum, which was refused, but she and her children were granted exceptional leave to remain. He began to offend from age 12. In 1999, he was cautioned for causing ABH and committing robbery. However, his offending intensified and he acquired a significant criminal record. He was convicted of robbery and GBH in 2003. The same year he was granted settlement and later also convicted of disorderly behaviour. He was convicted of burglary, theft and impersonating a police officer in 2004 and again during the same year he was convicted of robbery and was sentenced to three years’ detention in a Young Offenders’ Institution. Expulsion was not pursued but he was warned of his liability as to deportation. Subsequently, Ndidi pleaded guilty to supplying Class A drugs in 2008.
He was sentenced to seven years’ imprisonment in 2009. In 2010, the Home Office notified Ndidi of his liability to automatic deportation under section 32(5) of the United Kingdom Borders Act 2007. The decision-maker did not find that his rights under the Refugee Convention 1951 or the European Convention on Human Rights 1950 would not be breached by his deportation. His mother and siblings became British citizens and his father had acquired settlement. In the decision-maker’s view, Ndidi’s ties to them did not constitute family life and any private life he enjoyed ranked second to the legitimate interest of preventing disorder and crime by virtue of his removal. Equally, his elderly grandmother was in Nigeria and he could readjust to life there. There was no language barrier as English was an official language in Nigeria. The decision-maker cited Ndidi’s serious criminal record, and poor behaviour while in detention, to conclude that his deportation would not breach article 8 of the ECHR.
Relying on expert evidence on the risk he would pose to society upon release, Ndidi appealed the decision. The First-tier Tribunal allowed his appeal on article 8 and held that his deportation would be disproportionate and unnecessary in a democratic society. His circumstances showed a dependency on his family who he needed to make the transformation from “a criminal offender to an employed adult and useful member of society”. He also had an established private life in the UK and no ties to Nigeria. He worked and studied in detention which supported his assurances that he would not re-offend.
The Upper Tribunal
The Upper Tribunal found a material error of law in the First-tier Tribunal’s decision which was set aside in its entirety. In a subsequently promulgated determination, the Upper Tribunal dismissed Ndidi’s appeal against the deportation order. Applying the principles established by authorities such as Boultif v Switzerland, no. 54273/00, ECHR 2001-IX, Üner v the Netherlands [GC], no. 46410/99, ECHR 2006-XII and Maslov v Austria [GC], no. 1638/03, ECHR 2008, the Upper Tribunal acknowledged that Ndidi’s lengthy residence in the UK was significant as were his family ties. Despite finding no additional element of dependency in its evaluation on article 8, it accepted that Ndidi’s parents and siblings were an important part of his private life. Balancing his criminal record against his long residence, the Upper Tribunal observed that Ndidi began offending at an early age, he was fairly warned about the consequences of criminality, he misbehaved in detention with 16 adjudications (mostly for violence and disobedience) and his most recent offending occurred while he was an adult.
With respect to future offending and risk to the public, the Upper Tribunal did not accept Ndidi’s assurances that he had had a genuine change of heart and no longer posed a risk to the public. He had breached his earlier assurances and his distance from his criminal associates in prison was not a weighty factor indicating a lifestyle change. Nothing suggested that either of his parents would be able to exert any positive influence over him because they had been impotent to change his criminality in the past. Despite some probationary employment, his prospects of long-term employment were uncertain.
Thus, despite the difficulties accompanying Ndidi’s removal, the Upper Tribunal found that he had reached an age where he could be expected to “stand on his own two feet and make a life for himself”. He did not have any girlfriend or children in the UK, was in good health and would fit into Nigerian society because English is commonly spoken in Nigeria. His British family members could visit him in Nigeria where he had many other relatives. Overall, in light of Maslov, serious reasons existed to justify Ndidi’s expulsion and that the public interest in his deportation outweighed his article 8 rights. Thereafter, he failed to obtain any further permission to appeal in his case.
Ndidi’s case proceeded further as he sought to have the deportation order revoked and his efforts led to the issues being re-litigated, albeit with the same unsuccessful result. In July 2012 the Immigration Rules were amended to provide that the public interest in deporting foreign criminals was outweighed in “exceptional circumstances”. Ndidi subsequently made further representations to the Home Office on the basis of his fourteen-month relationship with a British national, without any connections to Nigeria, and the birth of their son in October 2012. The application to revoke the deportation order was refused. An in-country right of appeal was only provided under the threat of judicial review proceedings demonstrating evidence that Ndidi’s child was awaiting surgery for umbilical hernia and suffered from respiratory syncytial virus and bronchiolitis.
In 2013, the Home Office issued a fresh decision and refused to revoke the deportation order because there were no “exceptional factors” outweighing the public interest. The decision-maker stated that Ndidi’s partner had entered into a relationship with him knowing full well of his liability as to deportation and both of them should have known of the consequences of conceiving a child in those circumstances. The failure to put the relationship to the tribunal in earlier proceedings was inexplicable. The couple could continue their family life in Nigeria and their child would be able to access medical care there. Since no evidence of any exceptional, compelling or compassionate factors existed deportation was a proportionate response to Ndidi’s serious criminal offending.
Aided by a further psychiatric report where his expert argued that he had rehabilitated himself, Ndidi appealed but his case was dismissed. The First-tier Tribunal applied a two-stage approach. Maslov guided the conclusion that his deportation was justified. Interference with his family life with his partner and child was inevitable but nothing about their relationship qualified as an “exceptional circumstance”. His family and personal circumstances did not amount to the “exceptionality” required by the rules.
The decision on article 8 reiterated that English is widely spoken in Nigeria. Ndidi’s parents could support him in Nigeria and visit him as needed. He never lived with his partner and his child and they lived with his partner’s family with their support which would continue in his absence. The decision was held not to breach section 55 of the Borders, Citizenship and Immigration Act 2009. The legitimate interest in maintaining appropriate immigration control and social order in the UK by deporting Ndidi outweighed his article 8 rights. Subsequently, both tiers of the tribunal refused permission to appeal because it appeared that Ndidi sought to reargue the merits of the appeal without identifying an arguable error of law. Subsequent to permission being refused in the first instance, in seeking further permission to appeal to the Upper Tribunal, Ndidi claimed that an important point of principle was raised by his application, i.e. whether the decision of the tribunal was contrary to the principle of “double jeopardy”, or constituted discriminatory punishment, since a British national could not be excluded from the UK.
By way of judicial review, Ndidi tried to challenge the refusal of permission and stressed that his “double jeopardy” argument raised an important point of principle but the Administrative Court refused permission because in light of Cart  UKSC 28 decisions of the Upper Tribunal could only be reviewed if the “second appeal” test was satisfied, namely that (i) the appeal raised an important point of principle or (ii) there was another compelling reason to allow it to succeed. In the Administrative Court’s view, differnces in opinion over whether Ndidi ought to permitted to stay in the UK did not amount to the test for the grant of permission being satisfied. He did not appeal further to the Court of Appeal because it was plain to those representing him that his application would have offered no realistic possibility of success.
Ndidi’s relationship with his partner broke down and he had court-ordered direct contact with his son. He was not removed because of the absence of a valid travel document and a travel document was sought from the Nigerian authorities. In 2014, he approached the ECtHR alleging that (i) paragraphs 398 and 399 of part 13 of the Immigration Rules, laying down the existence of “exceptional circumstances” before removal would be in breach of article 8, imposed a higher standard than that of “proportionality” and (ii) in all the circumstances of his case, deporting him gave rise to a disproportionate interference with his article 8 rights.
The Strasbourg Court (First Section)
By six votes to one, the ECtHR held that no violation of Ndidi’s right to respect for private and family life had occurred. The court found that the complaint that paragraphs 398 and 399 impose a higher standard than proportionality had to be rejected because Ndidi failed to exhaust domestic remedies because of the fact that no application to the Court of Appeal for permission to appeal had been made in respect of the Administrative Court’s decision.
On the other hand, the ECtHR did not consider that the second article 8 complaint could be rejected for failure to exhaust domestic remedies. The argument that Ndidi’s complaint, that his deportation would breach his article 8 rights, was manifestly ill-founded was not accepted because in the court’s view the legal and factual issues raised were sufficiently complex and rendered the application admissible. Ndidi relied on his residence of twenty-eight years and argued that he acted criminally offences either as a minor or young adult and stopped offending after being released in March 2011. The UK government’s case was based on the principle of the public interest in favour of deporting violent drug dealers. The domestic courts were indeed right and Ndidi would assimilate in Nigerian society.
As seen in Slivenko v Latvia [GC], no. 48321/99, ECHR 2003-X and Boultif, the key issue for the ECtHR to decide was whether Ndidi’s deportation would be “necessary in a democratic society”, or whether the deportation order made against him struck a fair balance between his ECHR rights and the community’s interests. The Contracting States enjoy a margin of appreciation but it is regulated by the ECtHR which has the power to rule on the reconcilability of an expulsion measure with article 8. Yet the “European supervision” requirement does not warrant a fresh consideration of article 8 issues and in two decisions involving settled migrants given earlier this year – Hamesevic v Denmark, no. 25748/15 (May 2017) and Alam v Denmark, no. 33809/15 (June 2017) – the ECtHR declined to supersede the domestic courts’ findings as they were “neither arbitrary nor manifestly unreasonable” and robustly engaged with the rival interests at stake in light of the established criteria.
The ECtHR was of the view that all the decision-makers carefully examined Ndidi’s circumstances and that the Upper Tribunal carefully considered the principles established in Boultif, Üner and Maslov, weighing the length of the applicant’s residence in the UK and the family and private life established there against his long history of offending, continuing after the official warning in 2006, his poor behaviour in prison, and the risk to the public from future offending. The appeal against the decision to refuse to revoke Ndidi’s deportation order was heard prior to the judgment in MF (Nigeria)  EWCA Civ 1192 and the First-tier Tribunal applied the two-stage approach required by both MF (Article 8 – new rules) Nigeria  UKUT 393 (IAC) and Izuazu (Article 8 – new rules) Nigeria  UKUT 45 (IAC), first, examining any “exceptional circumstances” envisaged by the rules and then proceeding to consider article 8 as a “separate issue”.
The ECtHR held that:
81. Therefore, regardless of whether or not paragraphs 398 and 399 of the Immigration Rules could be said to impose a higher standard than that of proportionality, there is no doubt that in the present case the First-tier Tribunal – and, in fact, all the domestic decision-makers – gave thorough and careful consideration to the proportionality test required by article 8 of the Convention, including the relevant criteria set out in this court’s case-law, and, having balanced the applicant’s article 8 rights against the public interest in deportation, concluded that his deportation would not constitute a disproportionate interference with his right to respect for his family and private life.
The court saw no grounds upon which the decision of the UK authorities could be impugned. Since no change in Ndidi’s circumstances since occurred after the most recent domestic decision, the court found no strong reasons to substitute its own assessment of proportionality over that of the domestic authorities and courts. It instead observed that after the most recent domestic decision, Ndidi’s relationship with his partner ended and any contact with his son became restricted to alternate Saturdays. Overall, the court declared Ndidi’s complaint about the proportionality of his deportation admissible and the rest of the application inadmissible. It held that no violation of article 8 had occurred.
As in the UK courts, it seems that opportunistic recidivist foreign criminals can expect a zero-tolerance approach to be applied in Strasbourg these days. However, settled migrants confronted by the threat of deportation can perhaps find limited hope in Judge Ksenija Turković’s dissenting opinion in which she said that in her view Ndidi’s deportation breached his article 8 rights.
In reaching her conclusion, Turković said that the assessment of proportionality is and always will be fact-sensitive and she concurred with Lord Bingham’s reasoning in EB (Kosovo)  UKHL 41 that “no alternative” exists to making a case by case analysis and “the search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires.”
Ultimately, it took six years for Ndidi’s case to get resolved and it reportedly cost £100,000 in legal aid. It symbolises the genre of cases flagged up by the Home Office to eliminate, through the “hostile” mechanics of the Immigration Act 2014 and the Immigration Act 2016, the “snakes and ladders” system plagued by meritless appeals. The difference of course is that judges are not on the “side of foreign criminals” as Theresa May misleadingly claimed in 2013 as home secretary.