Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27949/95

by Aaiza and Azam CHOUDRY

against the United Kingdom

The European Commission of Human Rights sitting in private on

13 May 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 May 1995 by

Aaiza and Azam CHOUDRY against the United Kingdom and registered on

21 July 1995 under file No. 27949/95;

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

26 October 1995 and the observations in reply submitted by the

applicant on 30 October and 31 December 1995;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a British citizen born in India in 1959

and resident in Peterborough. The second applicant, the first

applicant's husband, is a Pakistani citizen born in Pakistan in 1955

and resident in Peterborough.

The applicants are represented before the Commission by Ms. Nuala

Mole of the AIRE Centre, London.

The facts as submitted by the parties may be summarised as

follows.

Particular circumstances of the case

The first applicant, born in India, has been settled in the

United Kingdom for 19 years, having arrived in 1975 aged 16 for an

arranged marriage. In 1985, she became a British citizen. The marriage

broke down after a short period and the first applicant was divorced.

She has a history of psychiatric disorders (depressive and hypomanic

illness) and suicidal tendencies and has had continuous psychiatric

treatment since 1988. This has on seven occasions required periods of

hospital admission on occasion under the compulsory powers of the

mental health legislation.

On 31 March 1994, the first applicant married the second

applicant.

The second applicant has lived in the United Kingdom for about

eight and a half years. He has lost an arm after an accident in 1967

and after another accident in 1982 his left leg was amputated. He since

has been fitted with prostheses in the United Kingdom. All the second

applicant's relatives, save his elderly parents, live in the United

Kingdom. He arrived in the United Kingdom as a visitor to stay with his

brother on or about 29 September 1985. Leave to remain as a visitor was

extended until 30 June 1986 but a further request for an extension

refused on 21 October 1986. His application for leave to remain in the

United Kingdom as a dependant of his brother was refused on 3 November

1987 on the basis of failure to produce the requested evidence of

dependence. He was given a further opportunity to establish his claim

to dependency but in light of findings that he had been living

independently in Pakistan before his arrival the renewed application

was refused on 27 April 1989. On 23 May 1991, he was served with a

notice of intention to deport him for overstaying his leave. His appeal

against this decision was dismissed by an adjudicator on 13 March 1992.

He made further representations and he was re-interviewed about his

circumstances on 17 June 1993. A deportation order was signed on 20

September 1993 and served on him on 26 March 1994.

The second applicant made an application to remain on the basis

of his marriage to the first applicant, a British citizen. This

application was refused on 24 May 1994. Further representations were

made on his behalf but on 19 May 1995, the Secretary of State informed

the applicants that he maintained his decision of refusal of entry. In

that letter, the Secretary of State stated that medical support did

exist for the first applicant in Pakistan and there was no evidence

that she would be denied access to it. He also noted that before

arriving in the United Kingdom the second applicant had lived in Mirpur

and he was not persuaded that the couple would not be able to live in

that city or that they would be obliged to live in rural Pakistan as

suggested.

The applicants applied for judicial review of the Secretary of

State's decision. Leave was refused and the renewed application for

leave was rejected by the Court of Appeal on 17 July 1995. Removal

directions were set for 27 July 1995.

By letter dated 30 October 1995, the applicants' representatives

informed the Commission that the first applicant, exercising the rights

conferred on her by European Community law, took up residence in

Ireland with the second applicant, where she continues to receive the

appropriate psychiatric supervision and her husband has the possibility

to maintain his prostheses. They state that pursuant to the applicable

Community law the second applicant will, after residing for the

relevant qualifying period in Ireland, be able to return to the United

Kingdom with the first applicant.

COMPLAINTS

The applicants invoke Articles 2, 3, 8 and 13 of the Convention.

As regards the first applicant, the applicants submit that the

medical condition of the first applicant shows that her husband's

deportation will cause her already precarious mental health to suffer

serious deterioration. There is a medical report which refers to the

risk of a serious relapse and a prediction that in light of her history

there is "every likelihood" that she will engage in acts of self-

destruction. It is alleged that she will be unable to obtain the

necessary psychiatric and counselling treatment in Pakistan and she is

on medication which requires constant monitoring, which is also

unlikely to be available in Pakistan. She has no family or other links

with Pakistan apart from her connection with her husband.

As regards the second applicant, the applicants submit that he

will be unable to use in Pakistan the efficient and comfortable

prostheses which enable him now to lead an almost normal life. In hot

weather prostheses become highly uncomfortable to wear and cause the

limb stumps to become inflamed. Also in Pakistan, there would not be

the orthopaedic facilities of the quality now available to him with the

servicing, repairing and improvement of his prostheses. Further, it is

submitted that he has cooperated throughout with the immigration

authorities, is in employment and has no criminal record. All his

family, save his elderly parents who have a pending application to

enter the United Kingdom as dependents of his brother, are now resident

in the United Kingdom.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 May 1995. On 20 July 1995,

the applicant's lawyer requested that the Commission indicate interim

measures concerning the removal of the second applicant pursuant to

Rule 36 of the Commission's Rules of Procedure. On 21 July 1995, the

Acting President refused to do so. However, on that date, the

application was registered and notice of it was given to the United

Kingdom under Rule 46 of the Rules of Procedure.

On 11 September 1996, the Commission decided to invite the

Government to make written submissions on the admissibility and merits

of the application. It decided to give the case priority pursuant to

Rule 33 of its Rules of Procedure.

The Government's written observations were submitted on 26

October 1995 after one extension of the time-limit fixed for that

purpose. The applicants supplied further information and comments on

30 October 1995 and in their observations in reply to the Government

on 31 December 1995, also after an extension in the time-limit.

THE LAW

The applicants complain that the proposed deportation of the

second applicant from the United Kingdom disclosed violations of

Articles 2 (Art. 2) (right to life), 3 (Art. 3) (prohibition against

inhuman and degrading treatment) 8 (Art. 8) (right to respect for

family and private life) and 13 (Art. 13) (right to an effective remedy

before national authorities) of the Convention.

As regards the alleged threat to the life of the first applicant,

the Government dispute the extent to which they can be under an

obligation to take positive steps to prevent some-one committing

suicide and that in any case such an obligation cannot extend to not

taking a lawful measure. Further the necessary causal link to the

suicide is absent, the proximate cause being the decision of the

individual. The Government point out that there is no allegation that

the applicants will be subject to any ill-treatment by the Pakistan

authorities. The treatment in question falls far short of the level

of inhuman and degrading which is prohibited under Article 3

(Art. 3); in particular, the first applicant's psychiatric illness can

be treated in Pakistan and it is not accepted that there will be any

worsening of her mental health; it is not accepted that the second

applicant would find it more difficult to use his artificial limbs but,

even if he did, this would not amount to inhuman or degrading

treatment, since in particular he lived and worked for most of his life

in Pakistan before his arrival in the United Kingdom.

In relation to the applicants' complaints under Article 8

(Art. 8) of the Convention, the Government submit that there is nothing

to stop the applicants establishing their family life in Pakistan. They

re-iterate that the second applicant lived and worked there before.

Thus the measure is proportionate to the legitimate aim of maintaining

the integrity of its immigration system in protection of the economic

well-being of the country, in particular since the second applicant had

overstayed his leave and married in the knowledge of the pending

deportation order. They dispute that the first applicant's British

citizenship confers on her in the context of her right to respect for

her private life any rights to social and economic benefits of living

in the United Kingdom.

Under Article 13 (Art. 13), the Government rely on the right of

appeal against the deportation to an adjudicator, which the second

applicant exercised in this case.

For their part, the applicants submit that the United Kingdom

must incur a positive obligation under Article 2 (Art. 2) where there

is real risk that their action will endanger the life of an applicant.

They submit that the medical evidence indicates that the threatened

removal of her husband will exacerbate a long-existing condition to the

point that it will become life-threatening. They state that she will

be unable to receive the necessary treatment for that condition in

Pakistan.

The applicants rely on various decisions of the Convention organs

which indicate that treatment contrary to Article 3 (Art. 3) may arise

from circumstances to which an individual is subjected eg. lack of

medical care, and not restricted to deliberate ill-treatment. They

contend that the exceptional circumstances of their case do meet the

severity test under Article 3 (Art. 3), in light of the effect that the

first applicant's mental health and the second applicant's physical

handicaps will have either on their forced separation from each other

or their removal together to a difficult environment. They submit that

the second applicant will not be able to use his new prostheses in

Pakistan and will be reduced once more from being a whole person to a

one armed one legged man.

The applicants dispute that it is reasonable to expect them to

establish their family and private life in Pakistan. The second

applicant, due to his age and disabilities, will find it difficult to

work and support the family and both would suffer major disruptions to

their private life, to which concept they claim should be attached a

wider significance than that proposed by the Government. Even though

it now appears that they will eventually be able to return to the

United Kingdom from Ireland, they submit that it is quite

disproportionate to the aim pursued by the United Kingdom Government

that these two exceptionally vulnerable people should have been obliged

to uproot themselves to make use of the community law option open to

them.

Finally, as regards Article 13 (Art. 13) of the Convention and

lack of effective remedies, the applicants contend that since the

second applicant falls outside the scope of the applicable immigration

rules on marriage policy the decision as to whether to grant leave to

remain lies solely with the Secretary of State and is not subject to

review by any court.

The Commission notes however that since communication of this

case, to which it attributed priority, the applicants have gone to live

in Ireland where it is said that they are able to receive all necessary

treatment and facilities and to continue their business activities. In

these circumstances, the Commission finds that they can no longer claim

to be victims of any risk to life or of being subjected to inhuman and

degrading treatment contrary to Articles 2 and 3 (Art. 2, 3) of the

Convention. In this context, it notes that the risk incurred by a

deportation must be assessed as at the time the deportation is to take

place (Application No. 22414/93, Chahal v. the United Kingdom, Comm.

Rep. 27.6.95 para. 107, pending before the Court). It follows that

where a proposed deportation does not in fact take place and the threat

no longer exists, as in this case, no issues remain for consideration.

The Commission is not persuaded, on the facts of this case, that the

existence of the deportation order, which placed the second applicant

under threat of removal until the applicants went to live in Ireland,

could by itself be regarded as disclosing any appearance of a breach

of Articles 2 or 3 (Art. of the Convention.

As regards the question whether nonetheless there has been an

interference with family and private life, since the applicants

consider that they were obliged to leave the United Kingdom to live in

Ireland in order to avoid execution of the deportation order, the

Commission recalls that according to established case-law 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 H.R., Abdulaziz,

Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 94,

para. 68). Whether removal or exclusion of a family member from a

Contracting State is incompatible with the requirements of Article 8

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

(Art. 8) effectively ruptured, whether there are insurmountable

obstacles in the way of the family living in the country of origin of

one or more of them, whether there are factors of immigration control

(eg. history of breaches of immigration law) or considerations of

public order (eg. serious or persistent offences) weighing in favour

of exclusion (see eg. Nos. 9285/81, Dec. 6.7.82, D.R. 29 p. 205 and

11970/86, Dec. 13.7.87 unpublished).

In the present case, the applicants have to all appearances

succeeded in continuing with their family life in Ireland, where they

are able to receive all necessary care and facilities and continue

their business activities. The Commission notes that they consider that

after the relevant qualifying period under applicable community law

they will be able to return, if they so wish, to the United Kingdom.

The Commission does not consider that the availability of the

"community law route" embarked upon by the applicants to obtain

residence rights in the United Kingdom is sufficient to render the

decision of the United Kingdom to issue a deportation order against the

second applicant a disproportionate measure for the purposes of Article

8 (Art. 8) of the Convention. In this context, the Commission observes

that the applicants have not drawn its attention to any significant

elements of hardship nor does it find any appearance of arbitrariness

or unreasonableness in the decision-making procedure of the immigration

authorities, the applicants having married in full knowledge of the

existence of the deportation order.

The Commission concludes that the facts of the case fail to

disclose any lack of respect for the applicant's rights to family or

private life as guaranteed by Article 8 para. 1 (Art. 8-1) of the

Convention.

Finally, as regards Article 13 (Art. 13) of the Convention, the

Commission recalls that this provision does not require a remedy under

domestic law in respect of any alleged violation of the Convention.

It only applies if the individual can be said to have an "arguable

claim" of a violation of the Convention (Eur. Court H.R., Boyle and

Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52). The

Commission finds that the applicants cannot be said, in light of its

findings above, to have an "arguable claim" of a violation of their

Convention rights.

It follows that the application must be dismissed 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.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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CHOUDRY v. THE UNITED KINGDOM

CHOUDRY v. THE UNITED KINGDOM

LEXI