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AS TO THE ADMISSIBILITY OF

Application No. 29308/95

by Sybil WILLIAMSON

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. J. LIDDY, President

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 3 September 1995

by Sybil WILLIAMSON against the United Kingdom and registered on

17 November 1995 under file No. 29308/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Nigerian national, born in 1958, and resident

in Mitcham.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

Between July 1977 and September 1980, the applicant resided

lawfully in the United Kingdom for study purposes. It appears that the

applicant further spent two months in the United Kingdom in 1985 and

on 6 April 1988 obtained permission to stay in the United Kingdom as

a visitor for a period of six months. Her subsequent application for

a working permit was rejected and, consequently, she left the country

at some unspecified point in time. On 3 May 1989 the applicant sought

leave to enter the United Kingdom for business purposes, which was

refused and she was removed to Nigeria.

In October 1991, the applicant was arrested and detained in the

United Kingdom on charges of fraud and blackmail. In the course of the

investigation it was found that the applicant was carrying a British

passport which had been lawfully issued to another person. As it

appeared that this passport had been used to travel to Nigeria in

October 1991, it was concluded that she was not a British citizen and

had unlawfully entered the United Kingdom. Her true identity was

established in the course of the above criminal proceedings against

her. It was further established that, in 1991, she was employed as a

housekeeper by Mr W., the victim of the facts with which the applicant

has been charged. Mr W. is an Australian national, born in 1936, and

lawfully residing in the United Kingdom.

In the course of her pre-trial detention, the applicant was

referred to two mental hospitals for an examination and treatment of

certain psychological disorders of which she appeared to suffer.

The applicant was found fit to stand trial and, on 29 March 1994

following proceedings on appeal, was convicted of the charges against

her and sentenced to five years' imprisonment. On 19 May 1993, the

Secretary of State of the Home Office had stated that no steps as

regards the applicant's removal from the United Kingdom would be taken

until her appeal against sentence and conviction would have been

resolved. The applicant was released after having served three and a

half years.

On 26 April 1994, after having been served with notice as an

illegal entrant, the applicant applied for asylum. On 5 May 1994 the

applicant married Mr W. in London and subsequently filed an application

to remain in the United Kingdom based upon this marriage. This

application was refused on 15 September 1994 as the applicant was

considered to be an illegal entrant and her marriage not genuine. The

applicant filed an application for judicial review, but withdrew this

application at some later point in time.

On 5 January 1995, the applicant's request for asylum was

rejected and directions were given for her removal to Nigeria. She

filed an appeal with the Adjudicator. On 14 July 1995, she requested

an adjournment of the appeal hearing planned for 10 August 1995. She

made this request on the basis that she was pregnant and expected to

give birth at the end of November 1995, and that her pregnancy entailed

serious medical problems. On 12 January 1996, the applicant gave birth

to twins.

Accepting that the applicant could not attend and give evidence

for reasons of health, the Adjudicator postponed the hearing planned

for 2 August 1996 by one month.

On 4 September 1996, the Adjudicator adjourned the hearing given

the applicant's apparent mental and physical state of health. Finding

that there "is not a reasonable degree of likelihood that a useful

hearing will take place" and that "a repeat of requests for adjournment

and impracticable situations are likely to arise", the Adjudicator

directed the applicant to submit a written statement before

5 November 1996 giving full details of her claim for asylum.

On 5 December 1996, the Immigration Service informed the

Adjudicator that, as the applicant's marriage to Mr W. postdates the

service of notice of illegal entry, neither her marriage or the

subsequent birth of her children avail her.

To date, the proceedings before the Adjudicator are still

pending. The applicant expects to give birth to a third child in

June 1997.

COMPLAINT

The applicant complains that her deportation will constitute an

unjust interference with her right to respect for her family and

private life within the meaning of Article 8 of the Convention. She

submits that her husband needs her constant care, in view of his poor

health. She further submits that she has no relatives or other persons

in Nigeria who could support her emotionally or financially, that both

her husband and herself are unable to take care, as a single parent,

of twin babies.

THE LAW

The applicant complains that her removal from the United Kingdom

will be contrary to her rights under Article 8 (Art. 8) of the

Convention.

This provision reads as follows:

"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."

The question arises whether or not the applicant has exhausted

domestic remedies as required by Article 26 (Art. 26) of the Convention

as the applicant withdrew her application for judicial review against

the decision of 15 September 1994 in which the immigration authorities

refused the applicant leave to remain on grounds of her marriage to

Mr W.

Even assuming that the applicant has exhausted available and

effective domestic remedies, the Commission considers that the

application is in any event inadmissible for the following reasons.

The Commission recalls its established case-law that, although

Article 8 (Art. 8) of the Convention does not in itself guarantee a

right to enter or remain in a particular country, issues may arise

where a person is excluded, or removed from a country where his or her

close relatives reside or have the right to reside (cf. No. 7816/77,

Dec. 19.5.77, D.R. 9, p. 219; No. 9088/80, Dec. 6.3.82, D.R. 28, p. 160

and No. 14852/89, Dec. 7.4.93, D.R. 74, p. 29).

However, the Commission further recalls that the State's

obligation to admit to its territory alien relatives of settled

immigrants will vary according to the particular circumstances of the

persons involved and the general interest. The Court has held that, as

a matter of well-established international law and subject to its

treaty obligations, a State has the right to control the entry of non-

nationals into its territory and that, where immigration is concerned,

Article 8 (Art. 8) does not impose a general obligation on States to

respect the choice of residence of a married couple or to accept the

non-national spouse for settlement in that country (Eur. Court HR,

Abdulaziz, Cabales and Balkandali v. United Kingdom judgment of

28 May 1985, Series A no. 94, p. 94, para. 68 and Ahmut v. the

Netherlands judgment of 28 November 1996, to be published in Reports

1996, para. 67).

The Commission considers that the answer to the question whether

removal or exclusion of a family member from a Contracting State is

incompatible with the requirements of Article 8 (Art. 8) will depend

on a number of factors: the extent to which family life is effectively

ruptured, whether there are significant obstacles preventing the family

living in the country of origin of one or more of them and whether

there are factors of immigration control (eg. history of breaches of

immigration law) or considerations of public order (cf. No. 9285/81,

Dec. 6.7.82, D.R. 29, p. 205; No. 11970/86, Dec. 13.7.87 unpublished;

No. 23938/94, Dec. 23.10.95, unpublished and No. 26985/95, Dec.

15.5.96, unpublished).

The Commission recalls that in previous cases it did not find it

incompatible with Article 8 (Art. 8) of the Convention to expect

children of illegal immigrants to follow their parents even if these

children had acquired theoretical rights of abode in the deporting

country (cf. No. 23938/94, Dec. 23.10.95, unpublished and No. 24865/94,

Dec. 23.10.95, unpublished).

In the present case, the Commission notes that the applicant is

an illegal entrant. The applicant's two children, who are just over one

year old, are likely to follow their mother on removal. The Commission

considers that the applicant's children can be expected to be able to

adapt to the change in environment, in view of their very young age.

The Commission acknowledges that the contacts between the

children and their father would be rendered difficult in the likely

event that the children will accompany the applicant. However, the

Commission considers that this situation flows from a choice exercised

by the children's parents rather than from any direct interference by

the State with these links. In this respect, the Commission notes that

the applicant had already been served with notice as an illegal entrant

before she married the children's father. Unlike the situation in the

Berrehab case (Eur. Court HR, Berrehab v. the Netherlands judgment of

21 June 1988, Series A no. 138), Mr W. must accordingly be taken to

have been aware of the applicant's precarious immigration status and

the probable consequential effects on his relation with any children

resulting from a relationship with her of the enforcement of the

deportation order (cf. No. 26985/95, Dec. 15.5.96, unpublished).

Moreover, the Commission does not find it established that it is

impossible for Mr W. to accompany the applicant to Nigeria or to remain

in contact with his wife and children abroad.

In these circumstances, the Commission finds that there are no

elements concerning family or private life which in this case outweigh

the valid considerations relating to the proper enforcement of

immigration controls. It concludes that the applicant's deportation

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

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

It follows that the application must be rejected as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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WILLIAMSON v. THE UNITED KINGDOM

WILLIAMSON v. THE UNITED KINGDOM

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