Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33185/96

by Olufunke AYOOLA

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 23 October 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

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 13 June 1996 by

Olufunke AYOOLA against the United Kingdom and registered on

25 September 1996 under file No. 33185/96;

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

13 March 1997 and the observations in reply submitted by the

applicant on 9 July 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of Nigeria. She was born in 1961, and

is represented before the Commission by Ms H. Tyrrell, Solicitor, of

North Kensington Law Centre, London. The facts of the application, as

submitted by the parties, may be summarised as follows.

The applicant's mother and two brothers are settled and resident

in the UK. The applicant first arrived in the United Kingdom in August

1977. She was given leave to remain, initially as a visitor and later

as a student. She completed her studies and returned to Nigeria in

September 1983, where she obtained employment.

The applicant returned to the United Kingdom on a visit from

October to December 1983, and on three further short visits between

then and July 1988.

Between 1986 and 1987 she contracted typhoid fever and suffered

in a car crash. Traumatised by these injuries she also suffered long

term psychological difficulties.

In 1988 the applicant's brother invited the applicant for a

holiday. In July 1988 she was granted leave to enter as a visitor for

6 months. Since then she has been trying to remain in the United

Kingdom and was able to do so as a student until 22 October 1991.

An application for indefinite leave to remain was refused on

20 September 1991. The applicant's appeal against this decision was

dismissed by an adjudicator on 2 October 1992.

A further application for indefinite leave to remain on

compassionate grounds was refused on 20 September 1993 as the applicant

had not submitted evidence to support the application for leave. A

notice to deport was served on 21 April 1994. In dismissing an appeal

against the notice on 15 December 1994, the adjudicator noted that the

applicant had recovered physically from the effects of the typhoid

fever, but was still psychologically upset and depressed. She also

noted the applicant's emotional ties with her mother and two brothers,

and that she was well enough to attend Bible College and to undertake

computer studies. She concluded: "Weighing up the evidence, it is only

that the bulk of the family are in the United Kingdom which persuades

me to recommend to the Secretary of State that he should look

sympathetically at the [applicant's] case, and allow her stay."

A deportation order was made against the applicant on 12 July

1995. The applicant applied for judicial review of the deportation

order. In her application she referred, inter alia, to an opinion of

the Department of Health that appropriate medical treatment would be

available in Nigeria. She stated that that opinion was "open to

serious challenge", as in fact the medical facilities in Nigeria are

woefully inadequate, especially for a person with very little means.

The application was refused by the High Court on 16 January 1996. The

judge stated that Parliament had said that it was for the Secretary of

State to decide such matters, and not judges. The judge's task,

notwithstanding that the applicant had a compelling case in many ways,

was to determine whether no reasonable Secretary of State could have

reached the decision. He was unable so to conclude, but added that he

did not "make [his] decision with any great enthusiasm". He concluded

"... it does seem to me that everything has been considered and

everything that could possible be urged upon the Secretary of State has

been put forward. In the end one has to apply the law as it is and I

must accordingly refuse leave."

On 29 May 1996 removal directions to Nigeria were issued. Those

directions have not, to date, been executed.

COMPLAINTS

The applicant claims that if deported, she will lose contact with

close family members. She alleges violation of Article 8 of the

Convention.

The applicant underlines that she is highly qualified (she has

a first class honours degree in chemistry). She occupies her time with

bible and computer studies. She suffers from anxiety and depression,

and requires intermittent surgery for a cleft palate. Her mother and

three older brothers have indefinite leave to remain in the United

Kingdom; the applicant and her mother, who live very near to each

other, see each other at least once a week and speak on the telephone

every other day. The applicant sees her three brothers at least once

a week. She also has eight nieces and nephews in the United Kingdom

to whom she is very close.

The applicant claims that she is especially dependent on her

family because of her history of anxiety and depression, as is

supported by psychiatric evidence. The applicant's connection with

Nigeria is weak - although she has a father and brother there, she is

not close to them. After 14 years in the United Kingdom, she feels

that it is her home. Separation from her mother and brothers in the

United Kingdom would cause enormous distress.

The applicant contends that interference with her privacy and

family life cannot be justified as she did not enter the country

illegally, has no criminal record, and has academic qualifications

which will make it possible for her to support herself. She has not

received state welfare benefits. The applicant considers that her

mother cannot be expected to follow her to Nigeria because of the

health problems for which she was given leave to remain in the United

Kingdom, and her three brothers all have academic careers and families

in the United Kingdom.

The applicant has presented a psychiatric report on her condition

which concludes that she is a vulnerable individual, who can be pushed

into disabling psychiatric illness by adverse experiences. The support

of her family could help her to consolidate the improvements which have

been registered over the years.

During the applicant's stay in the UK she has also undergone four

operations in order to repair cleft lip and palate, and further

surgical intervention may be required. The applicant claims that

adequate medical treatment will not be available in Nigeria if she is

returned.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 June 1996 and registered on

25 September 1996.

On 27 November 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 13 March

1997, after an extension of the time-limit fixed for that purpose. The

applicant's observations in reply were submitted on 9 July 1997, after

the expiry of the time-limit.

On 28 May 1997 the Commission granted the applicant legal aid.

THE LAW

The applicant complains that the deportation order and removal

directions issued to her constitute an unjustified interference with

her private and family life within the meaning of the Article 8

(Art. 8) of the Convention. Article 8 (Art. 8) of the Convention

provides as follows:

"1. Everyone has the right to respect for his private and

family life ...

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 ... the economic well-being of the country, ... for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Government note that the applicant did not renew her

application for leave for judicial review after the refusal of

16 January 1996. They consider that, to the extent that she claims

that there was no evidential basis for the Secretary of State's view

that she could lead an independent life in Nigeria, that claim was in

essence a claim that the Secretary of State's view was irrational.

Such a claim could and should have been pursued before the Court of

Appeal, and to that extent the applicant has not exhausted domestic

remedies.

The Government submit that the return of the applicant to Nigeria

would not interfere with her family life because she does not, in fact,

enjoy family life within the meaning of Article 8 (Art. 8): they point

out that while there is a family relationship between the applicant and

her mother and brothers, the central feature of family life is that

people live together as a family. In the present case, there is no

evidence that the applicant is financially dependent on her mother (or

vice versa), and they do not live together. They refer to the case of

X and Y v. the United Kingdom (No. 52691/71, Dec. 8.2.72, D.R. 39, p.

104).

In any event, even if the applicant does enjoy family life with

her mother, the Government submit that its extent and quality are such

that any interference is slight: the applicant could remain in contact

by telephone and post with her mother, in much the same way as she is

at the moment. There could also be visits. Accordingly, the

Government see any limited interference as justified for the protection

of the economic well-being of the country, in particular the integrity

of its immigration system. In this connection, they point out that

although the members of the applicant's family are settled in the

United Kingdom, with indefinite leave to remain, none of the time spent

by the applicant in the country counted as qualifying time which would

permit her, under the Immigration Rules, to settle, too. As to the

relationship between the applicant and her brothers, the Government

point out that the amount of contact is not very different from the

contact that many friends have with each other, and does not fall

within the concept of family life. Again, the Government consider that

any interference is slight and justified under Article 8 para. 2

(Art. 8-2).

As to the exhaustion of domestic remedies, the applicant notes

that she was unable to secure legal aid for a renewed application to

the Court of Appeal, and she did not have the means to pay for one

privately.

On the merits, the applicant contends that the existence of

"family life" cannot depend on whether the members of the family live

together, and points out that in the case of Gül (Eur. Court HR, Gül

v. Switzerland judgment of 19 February 1996, Reports 1996-I), the young

man concerned had an extensive family network in Turkey. She

underlines that she is financially substantially dependent on her UK

based family, and it would be unrealistic to expect telephone contacts

and visits to continue meaningfully if she were in Nigeria. She also

points out that her contact with her brothers must be looked at in the

context of an extended family in the Nigerian context, which is

necessarily different from the "classic" British family.

The Commission recalls that while the Convention does not

guarantee the right, as such, to enter or remain in a particular

country, the exclusion of a person from a country where his close

relatives reside may raise an issue under Article 8 (Art. 8) (see, for

example, No. 23981/94, Dec. 23.10.95, Sorabjee v. the United Kingdom

and the further case-law referred to there). However, the State's

obligations to admit to its territory aliens who are relatives of

persons resident there will vary according to the circumstances of the

case.

In the present case, the applicant states that she is very close

to her family members - her mother and brothers, who all have

indefinite leave to remain in the United Kingdom. She states that her

mother lives close to her and that they see each other "at least once

a week" and speak on the telephone every other day. She sees her

brothers also at least once a week. Further, she has eight nieces and

nephews in the United Kingdom.

It remains the case, however, that the applicant has not

submitted any details of financial dependency, and indeed she lives

separately from the other members. The Commission considers that on

the basis of her statements, it cannot be said that she is financially

dependent on her family. Moreover, she does not see any of them more

often than once a week.

The Commission notes that the applicant is an adult and educated

person. She was aged 16 when she first went to the United Kingdom, and

was aged 27 when she arrived in the country in 1988. It is thus true

that the applicant has stayed in the United Kingdom for a long period,

altogether 14 years, but she has nevertheless spent the major part of

her life - and all her youth to the age of 16 - in Nigeria. The

Commission considers that she can reasonably be expected to readapt

there, notwithstanding that readaption may not be easy.

As regards the applicant's health problems, and assuming

exhaustion of domestic remedies in this regard, the Commission notes

the opinion of the United Kingdom Department of Health that adequate

medical treatment is available for the applicant in Nigeria. The

applicant has not submitted any evidence which could indicate that this

opinion is inaccurate.

The Commission finds that there are no elements concerning

respect for family or private life which in this case outweigh the

valid considerations relating to the proper enforcement of immigration

control. It concludes that the proposed removal of the applicant does

not disclose a lack of respect for her private or family life as

guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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AYOOLA v. THE UNITED KINGDOM

AYOOLA v. THE UNITED KINGDOM

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