Lexploria

Application No. 27559/95

by T.O. A.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 8 July 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 March 1995 by

T.O. A. against the United Kingdom and registered on 9 June 1995 under

file No. 27599/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

14 January 1997 and the observations in reply submitted by the

applicant on 9 April 1997;

- the agreement between the parties;

Having deliberated;

Decides as follows:

THE FACTS

The applicant was born in 1985. When he applied to the Commission

he was a Ghanaian citizen with pending registration as a British

citizen. On 3 October 1996 he was registered as a British citizen. He

resides in London. Before the Commission he is represented by Bindman

and Partners, solicitors practising in London.

The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

The applicant's mother B., a Ghanaian citizen, entered the United

Kingdom in October 1982 as a visitor with leave to remain for one month

with a prohibition against taking employment. She remained after her

leave had expired and entered employment as a machinist. B.'s husband,

the applicant's father, also a Ghanaian citizen, was killed in a road

accident in Ghana shortly after the applicant's birth.

B. has seven children, one who was born and lives in Ghana with

her deceased husband's elderly mother, and six others, including the

applicant, who were all born in the United Kingdom and who live with

and are supported by B. in London. The applicant is her second child.

In 1991, the father of her third and fourth children was deported back

to Ghana. He has never provided any support for his children. B. has

had no contact with the father of her fifth child, a Canadian citizen.

Her sixth and seventh children were born in October 1995 and June 1996

after the present application to the Commission. B. has a brother who

lives in London who provides her with some financial support, and a

sister who lives in the USA. Both of B.'s parents are dead.

On 6 May 1990, more than seven years after having entered the

United Kingdom, B., who had come to the attention of the immigration

authorities, was interviewed under caution and served a notice of

intention to deport her.

An appeal against this decision before the Adjudicator was

dismissed on 10 September 1991. The Adjudicator found that she had

remained in the United Kingdom without authority since 1982. As

regarded her personal circumstances, he considered that she was of an

age when she could easily readjust in Ghana; that she would be able to

return to the town of Kumasi where she had lived previously and where

she had family connections, including the father of her third and

fourth children and her mother-in-law; and that she had an occupation

as seamstress. As regarded the children, he noted that they were fit,

save one child who had a minor problem of a squint currently undergoing

treatment. He found the younger ones would have no difficulty in

adjusting to life in Ghana and that in Kumasi, a town where most people

spoke English, there would be no language problem. He concluded, having

balanced the personal circumstances against the need to maintain

effective immigration control, that the applicant had not established

that an exception should be made. No application for leave to appeal

was submitted to the Immigration Appeal Tribunal. On 5 March 1992, a

deportation order was signed against her.

On 16 June 1992, representations were submitted to the Secretary

of State for the Home Office through B.'s Member of Parliament raising,

inter alia, the fact her children in the United Kingdom had never been

served with a deportation order. In a letter dated 14 August 1994 the

Secretary of State replied:

"... we prefer not to serve the dependent children of deportees

with deportation notices in order to avoid children leaving under

the stigma of having themselves deported... we expect (B.) to

take the children with her rather than to subject them to

deportation procedures which could otherwise be avoided."

Removal directions were set on a number of occasions but were

deferred for a number of reasons: B.'s pregnancy and birth of her sixth

child, medical treatment being undergone by another of her children,

B. moving house with her children in breach of a restriction order, and

for judicial review proceedings to be heard in 1995.

In response to further removal directions set for B. and four

children on 15 August 1994, B.'s solicitors wrote again to the

Secretary of State submitting that the children could not be deported

since they were entitled to remain and that their mother, their sole

carer, should not be removed. By a letter dated 5 September 1994 the

Secretary of State replied:

"The rights of the children were fully investigated. However,

they are not British Citizens and do not have the right of abode

here and they will be expected to accompany their mother, if

necessary at public expense."

On 8 February 1995, B. made an application in the High Court for

leave to apply for judicial review challenging the decisions made by

the Secretary of State on 15 August 1994 and on 5 September 1994. It

was alleged that there had been a failure by the Secretary of State to

take account of, inter alia, the fact that the applicant would be

eligible to apply for British citizenship on 15 February 1995 when

deciding to uphold the deportation order against B. The application was

refused and was renewed in the Court of Appeal on 15 March 1995. The

application was again refused.

On 3 October 1996, the applicant was registered as a British

citizen pursuant to section 1 (4) of the British Nationality Act 1981.

On 14 January 1997 the Home Office took a decision to make

deportation orders against the four oldest siblings of the applicant

residing in the UK, all of whom are minors (respectively aged 9, 7, 4

and 1.5 years). Notice of appeal has been lodged in all four cases.

COMPLAINTS

The applicant claims that the decision to remove his mother from

the United Kingdom constitutes a violation of his rights under

Articles 3, 8, Article 2 of Protocol No. 1 and Article 13 of the

Convention.

1. The applicant complains that the proposed removal of his mother

to Ghana violates Article 3 of the Convention. The applicant claims

that if he was to follow his mother to Ghana he would be required to

adapt to an entirely new environment and that in light of his age and,

in effect his exile from the country of his birth, to be so forced to

adapt would constitute ill-treatment and punishment. If he remains in

the United Kingdom, the enforced separation from his mother, he

submits, would also constitute a violation of Article 3.

2. The applicant complains under Article 8 of the Convention that

the said removal will interfere with his right to a family life and a

private life. He claims that the proposed deportation of his mother

constitutes the constructive deportation of himself, and asserts that

he has British citizenship and has the right of abode in the United

Kingdom, where he was born, bred and is being educated. He will lose

as a result the benefits of the health, education and welfare services

of his own country, his friends and the culture he has grown up in. The

applicant has never been to Ghana and has no knowledge of any other

language than English. While the applicant could theoretically remain,

the separation from his mother, his only surviving parent, would have

damaging psychological effects. It is likely that he would have to be

taken into local authority care and it is presently unforeseeable, in

light of his mother's immigration history, that she would be granted

entry clearance to travel and visit him. The applicant submits that the

measure by the Secretary of State to uphold his mother's deportation

order was accordingly disproportionate and harsh.

3. The applicant also complains under Article 2 of Protocol No. 1

that, should he be removed to Ghana, he will be deprived of education

in British schools and will be unable to afford education at a similar

standard. He complains that he has been educated in English all his

life and that his inability to speak any Ghanaian languages will

disadvantage him further. If, when he is of an age to return, he does

so it is doubtful that he will qualify to attend university.

4. Further, the applicant complains under Article 13 of the

Convention that there is no effective remedy in respect of the removal.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 March 1995 and registered

on 9 June 1995.

On 16 October 1996, the Commission decided to communicate the

application to the respondent Government.

The observations of the respondent Government were submitted on

14 January 1997. The applicant replied on 9 April 1997, after an

extension of time-limit.

The Commission decided on 21 January 1997 to grant the applicant

legal aid.

On 4 March 1998 the Commission decided to hold a hearing on the

admissibility and merits of the case.

Following an exchange of correspondence between the parties, an

agreement was reached whereby the deportation order against the

applicant's mother was removed, the mother was granted indefinite leave

to remain, and the deportation proceedings against the applicant's

siblings were discontinued. The Government agreed to pay the

applicant's reasonable costs, and the applicant agreed to settlement

of the case.

REASONS FOR THE DECISION

In view of the agreement between the parties, the Commission

notes that the matter has been resolved within the meaning of

Article 30 para. 1 (b) of the Convention.

The Commission finds no special circumstances regarding respect

for human rights as defined in the Convention which require examination

of the application to be continued, in accordance with Article 30

para. 1 in fine of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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T.O.A. v. THE UNITED KINGDOM

T.O.A. v. THE UNITED KINGDOM