Lexploria

Application No. 24521/94

by Sammy Martin DAVIS and others

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 4 September 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 8 March 1994 by

Sammy Martin DAVIS and others against the United Kingdom and registered

on 4 July 1994 under file No. 24521/94;

Having regard to:

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

the Commission;

- the further information submitted by the applicants on 3 May 1996

and the further information provided by the respondent Government

by letter dated 18 June 1996.

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a Ghanaian citizen born in 1946 and

resident in Ghana. The second applicant, also a Ghanaian citizen, is

his wife and resides in London. The third to fifth applicants are their

sons, born in 1979, 1981 and 1991 respectively. They reside with their

mother. The third and fourth applicants have United Kingdom citizenship

whereas the fifth applicant, due to the fact that he was born after the

British Nationality Act 1981 came into force, has not.

On 21 April 1994 the second applicant was granted indefinite leave

to remain in the United Kingdom in accordance with the stated policy

of the United Kingdom Government not to deport people who have been in

that country for more than fourteen years in the absence of any strong

countervailing factors. The fifth applicant was also, as is usual,

granted leave in line with the mother.

Before the Commission the applicants are represented by

Ms. Nuala Mole of the AIRE Centre in London.

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

summarised as follows.

The first applicant entered the United Kingdom in the early

seventies. His wife joined him in 1977. For twelve years the first

applicant worked as a storekeeper and for two years as a minicab driver

without, however, regularising his stay.

On 24 July 1987 the first applicant was convicted by the Central

Criminal Court of two charges of rape and of possession of a false

passport and sentenced to six years' imprisonment. He was not

recommended for deportation. An appeal against the conviction and

sentence was refused on 18 May 1988.

On 18 September 1989 the Secretary of State made a decision to

deport the first applicant. The Immigration Appeal Tribunal adjourned

its hearing of the first applicant's appeal against the decision to

deport several times, pending the determination by the Secretary of

State of several petitions to use his powers pursuant to Section 17 of

the Criminal Appeal Act 1968 to refer the first applicant's conviction

for rape back to the Court of Appeal following the discovery of fresh

evidence. The Secretary of State refused these petitions on

22 February 1991 and 14 October 1991.

On 29 October 1991 the Immigration Appeal Tribunal dismissed the

first applicant's appeal against the decision to deport. Two subsequent

applications for leave to move for judicial review were refused.

On 14 February 1994, pursuant to the re-opening of the case at

the instigation of "Justice", the United Kingdom branch of the

International Commission of Jurists, the Secretary of State refused to

disclose the findings of the Metropolitan Police in their investigation

and again refused a petition to refer the first applicant's conviction

for rape back to the Court of Appeal. On 23 February 1994 lawyers

acting for the first applicant lodged an application with the Court of

Appeal in order to compel the Secretary of State to make this new

evidence, which apparently shed considerable light on several hitherto

unexplained matters, available to them.

On the same date, prior to the listing of the aforesaid

application before the Court of Appeal, the deportation order was

served on the first applicant. Removal directions were set for

8 March 1994 on which date the first applicant was deported to Ghana.

On 31 October 1994 the Secretary of State refused the first

applicant's application of 31 August 1994 for the revocation of the

deportation order.

On 28 November 1994 the Court of Appeal quashed the Secretary of

State's decision not to refer the first applicant's conviction back to

the Court of Appeal and not to disclose the new evidence. On

20 January 1995 the first applicant's counsel were informed that the

Secretary of State had decided to refer the case back to the Court of

Appeal. Consequently a further application was made to the Secretary

of State requesting him to revoke the first applicant's deportation

order.

On 4 September 1995 the Secretary of State granted the first

applicant temporary admission to the United Kingdom in order that he

could be present at the reconsideration of his case by the Court of

Appeal. The applicant arrived in the United Kingdom on 3 October 1995

and was granted leave to remain until 3 January 1996.

On 5 December 1995 the Court of Appeal upheld the applicant's

conviction on the basis that the evidence before the court was

insufficient to warrant the quashing of the original conviction as

unsafe and unsatisfactory.

On 25 January 1996, further to the hearing of 13 December 1995,

the adjudicator allowed the applicant's appeal against the refusal of

the Secretary of State to revoke the deportation order. The

adjudicator stated that having considered the totality of the evidence,

exceptional circumstances existed that made the refusal of the

Secretary of State to revoke the deportation order not the right course

on the merits.

On 10 April 1996 the Secretary of State granted the applicant

temporary leave to remain as a spouse for one year, with the option to

apply thereafter for indefinite leave to remain.

COMPLAINTS

The applicants complained that the deportation of the first

applicant, at a time when the safety of the latter's conviction for

rape was still the subject of litigation, constituted a violation of

their right to respect for their family and private life which cannot

be justified under any of the grounds of para. 2 of Article 8 of the

Convention. The removal of the first applicant disrupted the stable

family unit which the applicants had formed again after the first

applicant had served his prison sentence. The third to fifth applicants

submit that it would have been unreasonable to expect them to join

their father in Ghana, a country with which their only link is that of

descent. Furthermore, the third and fourth applicants, who have held

British nationality from birth, were well integrated into their

community and were doing well at school. It is submitted that they were

not of an adaptable age.

The first applicant further complained of discriminatory

treatment contrary to Article 14 of the Convention, in that his

deportation following his prison sentence constituted an additional

punishment which could not have been imposed on United Kingdom

nationals.

The third and fourth applicants also invoked Article 14 of the

Convention. They submitted that in order to have enjoyed family life

with their deported father they would, unlike other children with

United Kingdom citizenship, have had to forego their private life right

to reside in the country of their birth and nationality.

The applicants finally complained that they did not have an

effective remedy before a national authority within the meaning of

Article 13 of the Convention in respect of the alleged violations

outlined above. While referring to the Court's Berrehab judgment (Eur.

Court H.R., judgment of 21 June 1988, Series A no. 138) they contended

that British immigration rules do not contain a provision to permit a

parent to remain in the United Kingdom on the basis of his or her

relationship to a minor child who is a United Kingdom citizen.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 March 1994 and registered on

4 July 1994.

On 24 October 1995 the Commission decided to give notice of the

application to the respondent Government pursuant to Rule 48 para. 2(b)

of its Rules of Procedure without, at that stage, inviting the

respondent Government to submit written observations on the

admissibility and merits of the application.

By letter dated 26 April 1996 the applicants' representative

informed the Commission that the first applicant had been granted leave

to remain in the United Kingdom as a foreign spouse for a period of one

year, with the option to apply thereafter for indefinite leave to

remain.

By letter dated 18 June 1996 the Agent of the respondent

Government also informed the Commission that the first applicant had

been granted leave to remain in the United Kingdom as a foreign spouse

on 20 March 1996 for a period of 12 months.

By fax dated 28 June 1996 the applicants' representative informed

the Commission of the applicants' intention to withdraw their

application.

REASONS FOR THE DECISION

In view of the declaration by the applicants' lawyer that the

applicants wish to withdraw their application registered under file

No. 24521/94, the Commission finds that the applicants no longer intend

to pursue their petition within the meaning of Article 30 para. 1(a)

of the Convention.

The Commission further considers that respect for Human Rights

as defined in the Convention does not require it to continue with the

examination of the application. The Commission therefore accepts the

applicants' request to withdraw the application.

It follows that the application may be struck off the list of

cases pursuant to Article 30 para. 1 of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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DAVIS AND OTHERS v. THE UNITED KINGDOM

DAVIS AND OTHERS v. THE UNITED KINGDOM

LEXI