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European Court of Human Rights |
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You are here: BAILII >> Databases >> European Court of Human Rights >> Mohammed Abdul AWAL v the United Kingdom - 43790/06 [2007] ECHR 695 (18 July 2007) URL: http://www.bailii.org/eu/cases/ECHR/2007/695.html Cite as: [2007] ECHR 695 |
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18 July 2007
FOURTH SECTION
Application no.
43790/06
by Mohammed Abdul AWAL
against the United
Kingdom
lodged on 26 October 2006
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Mohammed Abdul Awal, is a Bangladeshi national who was born in 1971 and lives in London. He is represented before the Court by Ms. Shakira Rajkumar, a lawyer practising at Oxford House Immigration in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows,
The applicant arrived in the United Kingdom on 11 November 2003 using a false passport. He remained illegally and took employment without permission. He has never been convicted of a criminal offence.
In May 2004 the applicant began a relationship with a British citizen, Miss N. The couple subsequently moved in together.
On 15 June 2005 Miss N. gave birth to a daughter, Y. The applicant is Y.’s father. Miss N. has three other children, not fathered by the applicant. All three have been adopted.
On 8 July 2005 the applicant applied to the Secretary of State for leave to remain in the United Kingdom on the basis of his relationship with Miss N. and their daughter.
On 30 January 2006 the Secretary of State refused to grant the applicant leave to remain in the United Kingdom and made a decision to remove him to Bangladesh. The Secretary of State considered that: (i) as an illegal entrant the applicant failed to meet the criteria for leave to remain in the United Kingdom as the unmarried partner of a person present and settled in the United Kingdom as required in paragraph 295D of the Immigration Rules; and (ii) he also failed to qualify for leave to remain on this basis as he only met Miss N. in May 2004 and they had therefore not been living together in a relationship akin to marriage for 2 years or more. Neither did the Secretary of State find any exceptional reasons why the applicant should be granted indefinite leave to remain as it was considered that there were no insurmountable obstacles preventing Miss N. and Y. from joining him in Bangladesh as: (i) Miss N could receive treatment for her epilepsy in Bangladesh; (ii) even if Miss N. could not accompany the applicant to Bangladesh, this would not amount to a disproportionate interference with their family life as both parties knew from the outset of their relationship that the applicant’s presence in the United Kingdom was unlawful and that he might be required to leave; (iii) although they had a child who was a British citizen, she was less than a year old and could consequently be considered young enough to adapt to life abroad; (iv) the applicant had family to return to including three children of his own in Bangladesh (from his ex-wife) - a son born in 1998 and two daughters born in 2002 and 2003; and (v) he could make an application from abroad for the correct entry clearance to return with a view to settlement as the unmarried partner of a person present and settled in the United Kingdom.
Miss N. subsequently developed serious drug problems to the extent that she was deemed unsuitable by the authorities to care for Y., who was taken into temporary foster care. The applicant’s relationship with Miss N. broke down and they separated. The applicant maintained extended supervised contact with Y. four times per week. Miss N. chose not to have any contact with Y.
The applicant appealed against the Secretary of State’s decision of 30 January 2006 to the Asylum and Immigration Tribunal (AIT), relying on Article 8 (1) of the Convention and, in particular, the family life that existed between himself and his daughter.
On 27 January 2006 the Broom Hill Family Centre produced an assessment report on the applicant’s case and circumstances. It states that Y. has no contact with her birth mother, Miss N., and that the latter has a history of drug misuse and a chaotic lifestyle that often accompanies problem drug use.
On 9 February 2006 the Leeds City Council, Social Services Department (SSD) devised a care plan for Y., providing that she be placed in the applicant’s care in a community tenancy. This was subject to the applicant being granted legal immigration status in the United Kingdom.
On 20 February 2006 the SSD produced an addendum care plan which stated that adoption would be in Y.’s best interests should the applicant be unsuccessful in his immigration appeal. The report went on to say that if the applicant was successful in being granted indefinite leave to remain in the United Kingdom at his immigration appeal, the local authority would “revert to the original plan to attempt rehabilitation” of Y. to the applicant’s care. However, according to this plan, Y. would be placed for adoption in the event that the applicant was not granted leave to remain and in this case the local authority would “look to gradually reduce the contact frequency over time” and when an adoptive placement was identified “a final contact” would be arranged.
On 14 March 2006 an Immigration Judge at the AIT dismissed the applicant’s appeal. The applicant’s submissions under Article 3 that money lenders would persecute him in Bangladesh due to his inability to pay off a debt were dismissed and it was concluded that these allegations were invented and introduced at a late date in order to achieve his purpose of staying in the United Kingdom. The Immigration Judge found that the applicant did have family life with Y. in the United Kingdom, as although they were not formally living together they saw each other on a regular basis and several professionals had testified to the positive relationship between them. The Judge also opined that the applicant’s proposed removal would constitute an interference with the latter’s right to respect for his private and family life. As to whether the interference would be proportionate, the Judge agreed that this was “a very sad case” as the applicant had taken a considerable interest in his daughter, many professionals (predominantly social-workers) had spoken highly of him and, if he were to be returned to Bangladesh, his daughter would remain in the United Kingdom and be put up for adoption. However, the Judge noted that the applicant’s time in the United Kingdom had been “tainted with illegality” and that he had intentionally and dishonestly flouted immigration law in remaining and working in the country without permission. Ultimately, the applicant’s case was not considered to be so exceptional as to render any decision to remove him disproportionate.
On 30 March 2006 a Senior Immigration Judge at the AIT rejected the applicant’s application for reconsideration of the Immigration Judge’s decision, on the grounds that there was no material error of law in the Immigration Judge’s decision and that the application was nothing more than a disagreement with the decision that the applicant’s removal would be a proportionate interference.
On 4 May 2006 the High Court dismissed the applicant’s application for reconsideration of the Immigration Judge’s decision on the basis that it was open to the latter to conclude that the case was not so exceptional that the applicant’s wish to look after his daughter would outweigh the need to maintain effective immigration control.
On 10 July 2006 a report was released, following an independent assessment of the applicant’s family circumstances (which involved the social worker visiting Bangladesh and interviewing the applicant’s family members). Her conclusion was that:
“the family’s current living condition... would be very unhealthy for Y...it is not in Y.’s interest to be placed in Bangladesh...as her family will not be able to meet her needs.”
On 23 August 2006 a Care Order was granted under section 31 of the Children Act 1989 ordering that Y. be placed in the care of Leeds County Council. Y. currently remains in foster care.
COMPLAINTS
The applicant complains under Article 8 § 1 of the Convention that the Secretary of State’s decision to expel him from the United Kingdom constitutes a disproportionate interference with his right to respect for his family life. He asserts that if he is removed to Bangladesh, his daughter will be put up for adoption thereby severing his relationship with her until she reaches the age of majority. The applicant contends in this regard that the terms of the adoptive placement would, save in the most unusual case, rule out the possibility of any direct contact between himself and his daughter, Y. as he would have no legal right to visit his daughter from Bangladesh and would be unable to obtain a court order allowing for access.
QUESTION TO THE PARTIES
Would the applicant’s removal from the United Kingdom to Bangladesh constitute a disproportionate interference with his right to respect for his private and family life as protected under Article 8 of the Convention, having regard in particular to the addendum care plan of 20 February 2006, (in which the Social Services Department noted their intention to place Y. for adoption in the event that the applicant was not granted leave to remain in the United Kingdom)?