Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25073/94

by Hammond Kwaku LARBIE

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 28 February 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 17 June 1994 by

Hammond Kwaku LARBIE against the United Kingdom and registered on

2 September 1994 under file No. 25073/94;

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 Ghanaian citizen born in 1954. He entered the

United Kingdom in 1984, and now runs a freight shipping business. He

has had indefinite leave to remain in the United Kingdom since

11 December 1990. He is represented before the Commission by

Ms. H. Amoo-Gottfried, a solicitor, and by Ms. J. Asher, a barrister.

The facts of the application, as submitted by the applicant's

representative, may be summarised as follows.

The applicant met his wife, F, on 6 June 1991. A child was born

on 20 November 1992, and the couple married on 16 April 1993.

F had entered the United Kingdom in 1985, with leave to enter for

six months as a visitor. She did not seek to extend her leave until

1988, when she applied for leave to remain on the basis of her marriage

to a British citizen, a Mr. Taylor. The Immigration Service

established that F and Mr. Taylor did not live together, and F's

application was refused on 6 September 1990. She was warned of her

liability to deportation. In January 1991, F was unable to say where

her husband was, and could not give any addresses where they had

previously lived. The Immigration Service suspected that the marriage

had always been a sham, and F was served with a notice of intention to

deport her for failing to comply with previous instructions to leave

the United Kingdom. F appealed, and an application for asylum was

made. The asylum application was refused on 10 June 1992 on the ground

that the Provisional National Defence Council - with which F's former

boyfriend had been involved - had become supportive of the government,

and because F herself was not a member of any organisation or in any

danger in Ghana. The appeal against the notice of intention to deport

was dismissed on 20 April 1993. In his decision of 20 April 1993, the

adjudicator said that the "appeal ... has seemed to amount to an abuse

of these procedures".

On 21 April 1993 F applied for leave to remain in the United

Kingdom as the wife of the applicant, and as a result of this

application, a deportation order made on 29 July 1993 pursuant to the

decision of 20 April was not served.

On 27 October 1993 F's (and the applicant's) MP wrote to the

Secretary of State about the case. Amongst other things, he wrote "I

understand Mr Larbie runs a successful shipping company employing seven

staff".

On 26 November 1993 the Secretary of State wrote to the MP. He

wrote:

" [F's] case was fully reviewed as a consequence of her marriage

on 16 April to a person settled here and the presence in the

United Kingdom of a child of the relationship. However, in

reviewing the case, account was taken of the fact that Mrs Larbie

has on her own admission lived in the United Kingdom for eight

years of which only six months has been with extant leave.

Furthermore, her latest marriage only took place after she had

been served with a notice of intention to deport her. Her

husband is a Ghanian, who has lived in the United Kingdom for

five years and having lived the majority of his life in Ghana,

he can reasonably be expected to readapt to living there, as can

their young child.

I have had Mrs Larbie's case considered fully and carefully in

the light of all these circumstances, including the fact that Mrs

Larbie is now expecting a second child, but I am not prepared to

revoke the deportation order against her. Her removal from the

United Kingdom will be enforced as soon as the necessary

arrangements are made. If her husband wishes to do so, he may

accompany her on her deportation, if necessary at public expense.

Her child's fare will also be met at public expense if

necessary."

An official of the Immigration Service wrote to the F's

solicitors on 7 April 1994. He repeated the substance of the Under

Secretary's letter of 26 November 1993, and declined to defer the

removal directions which had been set for 8 April 1994.

In July 1994 F applied, out of time, for judicial review of the

letters of 26 November 1993 and 7 April 1994. The application for

leave was refused on 27 July 1994, Mr Justice Ognall holding that the

Secretary of State had not failed to take into account all relevant

considerations. In particular, he noted that the Secretary of State

had borne in mind the difficulties the applicant would face if he had

to choose between returning to Ghana with F or continuing to run his

business in London.

F's renewed application for leave was refused by the Court of

Appeal on 8 September 1994. The Court of Appeal took note of the

letter of 27 October 1993 from F's MP to the Secretary of State in

which reference was made to the applicant's business.

F's removal, which had been suspended pending the judicial review

proceedings, was set for 11 September 1994, and she and the baby (born

on 31 December 1993) returned to Ghana on 10 September 1994. The

applicant paid for her ticket. The elder child stayed in the United

Kingdom with the applicant.

On 15 September 1994 the applicant's representative requested the

Secretary of State to revoke the deportation order and to allow F to

re-enter the United Kingdom. The applicant's representative states

that the Secretary of State refused to revoke the deportation order on

14 November 1994, and that an appeal has been entered. No copy of the

decision of 14 November 1994 or any subsequent appeal has been

submitted.

COMPLAINTS

The applicant alleges violation of Articles 3 and 8 of the

Convention.

Under Article 3 of the Convention, the applicant complains that

the Secretary of State might have misunderstood the position of F's

former boyfriend: he had in fact been accused of involvement in a plot

to kill the chairman of the Provisional National Defence Council,

rather than being on the same side as the Council. The applicant

requested the application of Rule 36 of the Commission's Rules of

Procedure.

Under Article 8 of the Convention, the applicant considers that

the removal of F interferes disproportionately with his family life.

He underlines that he has indefinite leave to remain in the United

Kingdom, and that both children hold British passports. He accepts

that he was aware of F's immigration status when they met and married,

but considers that the immigration authorities nevertheless failed to

give sufficient weight to the existence of his business interests in

the United Kingdom. In particular, he points to the fact that he runs

the business with a partner, and that they employ a number of permanent

and temporary staff, whose interests should also have been taken into

account in determining whether to grant F permission to remain.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 June 1994 and registered on

2 September 1994.

On 9 September 1994 the President of the Commission refused the

applicant's request for Rule 36 of the Commission's Rules of Procedure

to be applied.

THE LAW

1. The applicant alleges F's deportation to Ghana to be in violation

of Article 3 (Art. 3) of the Convention. Article 3 (Art. 3) provides

as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission notes that the present application has been

brought by the applicant, rather than by F. Whilst the applicant is

undoubtedly affected by F's having to leave the country, that is a

matter for the Commission to consider under Article 8 (Art. 8) of the

Convention.

No risk of the applicant being subjected to torture or inhuman

or degrading treatment in Ghana has been alleged or made out.

It follows that this part of the application is manifestly ill-

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

Convention.

2. The applicant also alleges a violation of Article 8 (Art. 8) of

the Convention. He considers that the interference with his family

life was not necessary in a democratic society. He does not accept

that the domestic authorities properly weighed the various factors

involved, in particular the difficulties which would be caused if he

was in effect required to follow his wife and their children to Ghana.

Article 8 (Art. 8) of the Convention provides, so far as relevant, as

follows:

"1. Everyone has the right to respect for his ... 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 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 Commission recalls that Article 8 (Art. 8) of the Convention

does not in itself guarantee a right to enter or remain in a particular

country, although issues may arise where a person is excluded, or

removed from a country where his close relatives reside or have the

right to reside. The State's obligation to admit to its territory

aliens who are relatives of persons resident there will vary according

to the circumstances of the case: whether removal or exclusion of a

family member from a Contracting State is compatible 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 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 or considerations of public order weighing in

favour of exclusion (see Sorabjee v. the United Kingdom, No. 23938/94,

Dec. 23.10.95, with further references).

The Commission notes the applicant was aware of F's immigration

history and the pending deportation order when they married, and he

must have been aware that her continued stay in the United Kingdom was

precarious. As to the children, who hold British passports, the

Commission notes that the elder child remained in the United Kingdom

when F left. If the applicant chooses to stay in the United Kingdom,

the younger child will be able to join him if and when her parents

decide.

The Commission does not under-estimate the problems for the

applicant - and for his business and its employees in particular - if

he wishes to join F and their younger child in Ghana, but in the view

of the Commission those problems cannot be regarded as the direct

responsibility of the United Kingdom under the Convention. The

applicant was able to raise this matter before the domestic

authorities: the matter was raised on judicial review, and the

Divisional Court found that the Secretary of State had considered it.

The Commission is unable to accept that the applicant's business

interests, and those of his employees, should have prevailed over the

interests of immigration control or that the authorities failed to give

adequete weight to this aspect. Moreover, it remains the case that the

applicant is a Ghanaian national, and has not submitted that - apart

from the business aspects - life would be particularly difficult for

him there.

The Commission concludes that F's having to leave the United

Kingdom does not disclose a lack of respect for the applicant's right

to respect for his family life as guaranteed by Article 8 para. 1 of

the Convention.

It follows that this part of the application is also 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 First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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LARBIE v. THE UNITED KINGDOM

LARBIE v. THE UNITED KINGDOM

LEXI