Juan Carlos OSORNO ZULUAGA v the United Kingdom - 20443/08 [2011] ECHR 208 (18 January 2011)

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Application no. 20443/08
by Juan Carlos OSORNO ZULUAGA
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 18 January 2011 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi,
Vincent A. de Gaetano, judges,
and Lawrence Early, Registrar,

1. The four applicants are Colombian nationals. The first applicant, Mr Juan Carlos Osorno Zuluaga, was born in Colombia on 12 February 1967. The second applicant, Mrs Maribel Martinez Cordona, is the first applicant’s wife. The third and fourth applicants, Eder Alexis Osorno Martinez and Sabastian Osorno Martinez, are the first and second applicants’ sons, who were born in 1990 and 1994 respectively. The first applicant currently lives in Colombia. The second, third and fourth applicants currently live in London.

2. The applicants are represented before the Court by Ms S. Bajaria of Birnberg Peirce & Partners, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms J. Gladstone of the Foreign and Commonwealth Office.

3. The facts of the case, as submitted by the applicants, may be summarised as follows.

4. The first applicant arrived in the United Kingdom in February 1995 and was granted six months’ leave to enter as a visitor. He returned to Colombia in July 1996. In October 1996 the four applicants travelled to the United Kingdom and the first applicant claimed asylum upon arrival. He submitted that if returned to Colombia he would be at risk of persecution by members of a drug cartel because of his father’s trade union membership and his own membership of the Conservative Party. He said that his father and his sister had been murdered, and that he had been stabbed in 1994 after receiving death threats. The Secretary of State for the Home Department refused the asylum application, finding that the first applicant had not demonstrated that his difficulties had arisen from anything other than indiscriminate violent criminality. On appeal, the first applicant further submitted, inter alia, that his wife had been beaten and raped by four men in July 1996. The Adjudicator found the first applicant’s account credible and allowed the appeal. On 29 March 2001 the first applicant was recognised as a refugee and granted indefinite leave to enter the United Kingdom. As their applications were dependent on that of the first applicant, the second, third and fourth applicants were also granted indefinite leave to enter.

5. On 3 January 2003 the first applicant was sentenced to a period of ten years’ imprisonment after he was convicted of being knowingly concerned in the importation of just under a kilogram of cocaine. He served three years of his sentence in closed conditions. The second, third and fourth applicants were seriously affected by his continued detention. The second applicant found it difficult to cope with household affairs, the third applicant experienced behavioural issues and the fourth applicant began to comfort eat. After three years the first applicant was relocated to an open settlement prison. He was granted permission to visit his family every Sunday and the situation of the third and fourth applicants improved significantly. In April 2007 the first applicant was released on licence after the parole board found that he was considered to present a low risk of reconviction.

6. On 10 October 2006 the Secretary of State for the Home Department had written to the first applicant, advising him that section 72 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) created a rebuttable presumption that he constituted a danger to the community and, pursuant to Article 33(2) of the Refugee Convention, he could no longer claim the protection of that Convention. In reply, the first applicant submitted that his family was settled in the United Kingdom: his wife, the second applicant, was employed in child care and his children, the third and fourth applicants, were attending school. His conviction in 2002 had been the only occasion on which he had been in any kind of trouble, he had been of good behaviour since his conviction and he had made every effort to become rehabilitated. Finally, he submitted that if he were returned to Colombia, his life would still be in danger.

7. On 22 February 2007 the Secretary of State for the Home Department advised the first applicant that he had failed to rebut the presumption that he would constitute a danger to the community if he remained in the United Kingdom. Moreover, the Secretary of State advised the first applicant that he was also excluded from a grant of humanitarian protection (a subsidiary form of protection to refugee status) because of his conviction and subsequent failure to rebut the presumption under section 72 of the 2002 Act. The Secretary of State then considered the current country information on Colombia. In light of that information, he concluded that the first applicant no longer had a well-founded fear of persecution on return to Colombia and would not be in danger of treatment contrary to Articles 2 and 3 of the Convention. Finally, the Secretary of State for the Home Department did not accept that the first applicant’s deportation would be a breach of his rights under Article 8 as there were no barriers to the second, third and fourth applicants returning to Colombia with him. Even if they did not return to Colombia, family life could be maintained from abroad.

8. The Secretary of State for the Home Department again wrote to the first applicant on 28 February 2007. He indicated that he had reviewed the facts and concluded that the first applicant’s deportation would be conducive to the public good. The Secretary of State was satisfied that the first applicant’s deportation would not be in breach of Article 8 of the Convention in light of the seriousness of the offence and the fact that his family could accompany him to Colombia. Finally, the Secretary of State reiterated that he did not believe that the first applicant would be at risk of a breach of his rights under Articles 2 and 3 on return to Colombia.

9. The first applicant appealed against the decision to make a deportation order on the grounds first, that he had been recognised as a refugee; secondly, that if he were returned to Colombia, he would be at real risk of a breach of his rights under Article 3 of the Convention; thirdly, that he and his family were settled in the United Kingdom and removal would breach his rights under Article 8 of the Convention; fourthly, that there was no evidence to show he had been the organiser of the offence, that he was a good family man, and that he had been industrious since his arrival in the United Kingdom. The Asylum and Immigration Tribunal dismissed the appeal. It found that the first applicant had failed to rebut the presumption that he would present a danger to the community and as a consequence he could no longer claim the benefit of the Refugee Convention or humanitarian protection. With regard to the first applicant’s Article 3 rights, the Tribunal found on the basis of the objective material that the first applicant and his family would be at no real risk of ill-treatment on return to Colombia. In relation to Article 8, the Tribunal found that although the first applicant and his family were likely to suffer some hardship in rehabilitating themselves in Colombia if they all returned together, there were no insurmountable obstacles to their doing so.

10. The first applicant applied for reconsideration of this decision on the ground that the Tribunal erred in law in its finding in respect of the statutory presumption and in its assessment of proportionality under Article 8 of the Convention. Reconsideration was ordered on the ground that it was arguable that the Tribunal had erred in law, particularly in applying the presumption under section 72 of the 2002 Act. On reconsideration, however, the Tribunal concluded that there was no material error of law and the decision to dismiss the appeal should stand. The first applicant was refused leave to appeal to the Court of Appeal.

11. The first applicant applied for interim measures under Rule 39 of the Rules of Court in order to stay his deportation to Colombia. The Acting President of the Section decided not to indicate the interim measure sought and in May 2008 the first applicant was deported from the United Kingdom.

12. Under United Kingdom law, the spouse and dependent children of an asylum seeker may either apply for asylum in their own right, or be included in the application of the principal asylum seeker. Paragraph 349 of the Immigration Rules HC 395 (as amended) provides that:

“A spouse, civil partner, unmarried or same-sex partner, or minor child accompanying a principal applicant may be included in his application for asylum as his dependant, provided, in the case of an adult dependant with legal capacity, the dependant consents to being treated as such at the time the application is lodged. A spouse, civil partner, unmarried or same-sex partner or minor child may also claim asylum in his own right. If the principal applicant is granted asylum or humanitarian protection and leave to enter or remain any spouse, civil partner, unmarried or same sex partner or minor child will be granted leave to enter or remain for the same duration. The case of any dependant who claims asylum in his own right will be also considered individually in accordance with paragraph 334 above. An applicant under this paragraph, including an accompanied child, may be interviewed where he makes a claim as a dependant or in his own right.

If the spouse, civil partner, unmarried or same-sex partner, or minor child in question has a claim in his own right, that claim should be made at the earliest opportunity. Any failure to do so will be taken into account and may damage credibility if no reasonable explanation for it is given. Where an asylum or humanitarian protection application is unsuccessful, at the same time that asylum or humanitarian protection is refused the applicant may be notified of removal directions or served with a notice of the Secretary of State’s intention to deport him, as appropriate. In this paragraph and paragraphs 350-352 a child means a person who is under 18 years of age or who, in the absence of documentary evidence establishing age, appears to be under that age. An unmarried or same sex partner, for the purposes of this paragraph, is a person who has been living together with the principal applicant in a subsisting relationship akin to marriage or a civil partnership for two years or more.”

13. The principle applicant may, however, lose the protection of the Refugee Convention in certain circumstances. Article 33 of the Refugee Convention provides that:

“1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”

14. Section 72 of the Nationality, Immigration and Asylum Act 2002 provides that for the purpose of the construction and application of Article 33(2) of the Refugee Convention:

“A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is—

15. Finally, an asylum applicant who does not qualify for refugee status in the United Kingdom may nevertheless be granted humanitarian protection if substantial grounds have been shown for believing that they would face a real risk of serious harm on return. Paragraph 339D of the Immigration Rules, however, provides that:

“A person is excluded from a grant of humanitarian protection under paragraph 339C (iv) where the Secretary of State is satisfied that:

(iii) there are serious reasons for considering that he constitutes a danger to the community or to the security of the United Kingdom.”

16. The applicants complained under Article 8 of the Convention that the first applicant’s removal disproportionately interfered with their right to respect for their family and private life.

17. The applicants submitted that their rights under Article 8 of the Convention were the subject of an interference which was not necessary in a democratic society. In particular, they submitted that they had been living in the United Kingdom for over ten years and the third and fourth applicants had spent most of their childhood there. Consequently, each of the applicants had established a private life in the United Kingdom, which the first applicant’s removal disproportionately interfered with.

18. The Government submitted that the applicants’ claims had no merit and should therefore be rejected as inadmissible or, alternatively, that the first applicant’s deportation was proportionate in the interests of the prevention of crime.

19. First, the Government reiterated that the first applicant had been found guilty of knowing involvement in the importation of a large quantity of cocaine and was sentenced to ten years’ imprisonment.

20. Secondly, the Government submitted that the first applicant had only been in the United Kingdom for five and a half years when he was arrested and, at the date of his deportation, he had only been in the United Kingdom for ten and a half years, five of which had been spent in prison.

21. Thirdly, the Government asserted that the first and second applicants had spent their formative years in Colombia. Although the third and fourth applicants had spent the majority of their childhood in the United Kingdom and developed strong ties there, the evidence suggested that the family had maintained strong social and cultural ties to Colombia. In particular, the third and fourth applicants had told the Asylum and Immigration Tribunal that the family spoke Spanish at home. Moreover, the first and second applicants both had close family members in Colombia who could help them to resettle there. Although they claimed not to be in touch with those family members, the Tribunal did not accept this evidence as credible.

22. Fourthly, the Government accepted that family life existed between the first, second and fourth applicant, but asked the Court to note that family life was restricted during the first applicant’s imprisonment. The Government submitted that the third applicant was eighteen years old when the first applicant was deported and family life did not usually exist between adult children and their parents without the existence of further elements of dependency.

23. Fifthly, the Government accepted that the third and fourth applicants would face a degree of hardship if they were to return to Colombia, but reiterated that they were Colombian nationals who spoke Spanish, had maintained strong cultural links to Colombia and had family members who could help them to settle there, should they decide to join the first applicant.

24. Consequently, the Government submitted that the first applicant’s deportation did not violate the applicants’ rights under Article 8 of the Convention.

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

26. The Government have accepted that the first applicant’s deportation interfered with his rights and the rights of the second and fourth applicants under Article 8 of the Convention. The Court endorses this view. The first applicant’s relationship with his wife and minor child clearly constituted “family life” for the purposes of Article 8 and the first applicant’s deportation interfered with that family life. In view of this finding, the Court does not consider it necessary to determine whether or not his relationship with his eldest son also constituted family life.

27. With regard to the legality of the interference with the applicants’ right to respect for their family life, the Court notes that the impugned measure had a basis in domestic law, namely section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999). It is also not in dispute that the interference served a legitimate aim, namely “the prevention of disorder and crime”.

28. Therefore, the principal issue to be determined is whether the interference was “necessary in a democratic society”. The relevant criteria that the Court uses to assess whether an expulsion measure is necessary in a democratic society have recently been summarised as follows (see Üner v. the Netherlands [GC], no. 46410/99, §§ 57 - 58, ECHR 2006 ...):

“57. Even if Article 8 of the Convention does not therefore contain an absolute right for any category of alien not to be expelled, the Court’s case law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision (see, for example, the judgments in Moustaquim v. Belgium, Beldjoudi v. France and Boultif v. Switzerland, [cited above]; see also Amrollahi v. Denmark, no. 56811/00, 11 July 2002; Yilmaz v. Germany, no. 52853/99, 17 April 2003; and Keles v. Germany, 32231/02, 27 October 2005). In the case of Boultif the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria, as reproduced in paragraph 40 of the Chamber judgment in the present case, are the following:

- the length of the applicant’s stay in the country from which he or she is to be expelled;

- the time elapsed since the offence was committed and the applicant’s conduct during that period;

- the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life;

- whether the spouse knew about the offence at the time when he or she entered into a family relationship;

- the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.

58. The Court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment:

- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and

- the solidity of social, cultural and family ties with the host country and with the country of destination.”

29. With regard to the severity of the offence, the Court reiterates that in view of the devastating effects of drugs on people’s lives, it understands why the authorities show great firmness towards those who actively contribute to the spread of this scourge (Dalia v. France, 19 February 1998, § 48, Reports of Judgments and Decisions 1998 I). It notes that the applicant’s offence was particularly serious as it involved the importation of a significant quantity of cocaine, which resulted in a sentence of ten years’ imprisonment. The severity of this offence must therefore weigh heavily in the balance.

30. Moreover, the Court observes that the first and second applicants were in their late twenties when they left Colombia to come to the United Kingdom. Although they lived together in the United Kingdom for more than ten years, they have not contested the Government’s assertion that they maintained strong cultural ties to Colombia and have close family members there who could help them to resettle. Moreover, while the third and fourth applicants have spent the formative years of their lives in the United Kingdom, they would also appear to have maintained social and cultural ties to Colombia. In particular, the Court notes that the applicants have not challenged the Government’s assertion that the third and fourth applicants speak Spanish fluently.

31. On these facts alone, the Court finds no evidence to suggest that there would be any insurmountable obstacles to prevent the second, third and fourth applicants from relocating to Colombia, should they wish to do so. However, the Court was somewhat concerned by the allegation, made by the first applicant in the course of the asylum proceedings, that the second applicant had been raped by four men in Colombia. Although the first applicant did not mention this fact in the course of his original application for asylum, it formed part of the account given to the Asylum and Immigration Tribunal on reconsideration, an account which the Tribunal found to be “credible”. If the second applicant was indeed the victim of such an attack, it could well impact upon her willingness to return to Colombia with the first applicant.

32. However, the Court observes that the applicants did not, at any stage of the domestic proceedings, seek to challenge the deportation on the ground that the second applicant would be unwilling to return to Colombia following the rape. Likewise, in their submissions to the Court, the applicants’ complaints under Article 8 were founded entirely on the length of time that the family had been in the United Kingdom, the age at which the third and fourth applicants arrived in the United Kingdom, and the strength of the family ties and private life established there. Consequently, there is no evidence before the Court to suggest that the second applicant would be unwilling or unable to return to Colombia on account of her past experiences and the Court is therefore unable to weigh this factor in the balance in assessing the proportionality of the first applicant’s deportation.

33. Therefore, in view of the nature and severity of the offence committed by the first applicant, the relatively short time that the family has been living in the United Kingdom, and the strength of their remaining social, cultural and family ties to Colombia, the Court finds that, if considered against the criteria set down in Boultif v. Switzerland, no. 54273/00, ECHR 2001 IX and Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006 ..., the interference with the applicants’ family life was proportionate to the legitimate aims pursued, namely the maintenance of an effective system of immigration control, the prevention of disorder and crime and the protection of health and morals.

34. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Juan Carlos OSORNO ZULUAGA v the United Kingdom - 20443/08 [2011] ECHR 208 (18 January 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/208.html Cite as: [2011] ECHR 208