Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25297/94

by P.P. & others

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 16 January 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. CONFORTI

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 18 November 1994

by P.P. & others against the United Kingdom and registered on

5 December 1994 under file No. 25297/94;

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

15 August 1995 and the observations in reply submitted by the

applicants on 19 October 1995;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a citizen of Jamaica born in 1964 and

resident in Jamaica. The second to fourth applicants are her children

born in 1984, 1989 and 1993. They are or may claim to be British

citizens and live with the first applicant.

The applicants are represented before the Commission by Ms. Kate

Bell, a solicitor practising in London. The facts as submitted by the

parties may be summarised as follows.

The first applicant was born and grew up in Jamaica. She entered

the United Kingdom in March 1988 as a visitor and stayed with

Mr. Powell whom she had known in Jamaica.

Mr. Powell, a British citizen, is the father of the three

children who were born to the first applicant. S., the second

applicant, was born on 15 August 1984 out of wedlock and may claim to

be a British citizen by virtue of her mother's subsequent marriage to

her father. A., the third applicant, was born on 15 January 1993 and

H, the fourth applicant, on 17 October 1993, both of whom acquired

British citizenship at birth due to their mother's marriage to Mr.

Powell.

In 1988, before her visa expired, the first applicant and

Mr. Powell were arrested for possession of cocaine with intent to

supply. The first applicant was charged also with trying to obtain a

passport fraudulently. She received a three month suspended sentence

for the latter. In respect of the drugs offences, she was found guilty

on 24 February 1989 and sentenced to a two year suspended sentence. The

judge made a recommendation of deportation. Mr Powell was sentenced to

five years.

On 17 January 1990, the first applicant married Mr. Powell. He

was released from prison in 1992 but after being convicted for a

similar offence, he was sentenced to a further five year prison

sentence.

On 7 August 1989, the Secretary of State signed a deportation

order. It was not served on the first applicant.

On 3 January 1991, the first applicant applied through UKIAS

(United Kingdom Immigration Advisory Service) to regularise her stay.

No response was received to these representations until 22 October 1993

when the Home Office wrote to UKIAS to inform them the deportation

order would be served in due course.

The first applicant's Member of Parliament made further

representations to the Home Secretary on her behalf in February 1994

and on 26 February 1994 the order for deportation was served on her.

The first applicant's application for leave to apply for judicial

review was dismissed on 27 May 1994.

Further representations to the Home secretary regarding the

children were rejected by letter of 20 June 1994.

On 4 September 1994, the first applicant left the United Kingdom

with her children, S. A. and H. They live in Jamaica.

COMPLAINTS

The applicants complain of a violation of their right to respect

for their family and private life guaranteed under Article 8 of the

Convention. The children had maintained close links with their father

despite his imprisonment, visiting him twice a month in prison. They

enjoy with him a bond amounting to family life. The deportation

interferes with their family life and private life, since inter alia,

they have been sent to a place with which they have no connections and

no prospects. The deportation of the first applicant constitutes

constructive deportation of the children who are British citizens and

have the right of abode in the United Kingdom, where they born bred and

educated. They have lost as a result the benefits of the health,

education and welfare services of their own country and continuing

their relationship with their father and friends in the United Kingdom.

While the children could have remained, their separation from their

mother, the first applicant, would have had damaging psychological

effects. The measure was accordingly disproportionate and harsh.

Further, the measure discloses a violation of Article 3 of the

Convention as the child applicants are required to adapt to

circumstances which cause them adverse psychological consequences and

even deterioration in their physical well-being.

The applicants also make reference to Article 2 of the First

Protocol in relation to the loss of educational opportunities which

they had enjoyed in the United Kingdom.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 November 1994 and registered

on 5 December 1994.

On 6 April 1995, the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

15 August, following the refusal of the Commission on 4 July 1995 to

postpone the examination of the case pending other similar

applications. The applicant replied on 19 October 1995.

On 24 October 1995, the Commission granted the applicants legal

aid.

THE LAW

1. The applicants complain that the children have suffered adverse

psychological consequences and even a deterioration in their physical

well-being since their deportation. They invoke Article 3 (Art. 3) of

the Convention which provides:

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

treatment or punishment."

The case-law of the Convention organs establishes that ill-

treatment must attain a minimum level of severity if it is to fall

within the scope of Article 3 (Art. 3) of the Convention. Further, the

Court has held that the suffering occasioned must attain a certain

level before treatment can be classified as a inhuman. The assessment

of that minimum is relative and depends on all the circumstances of the

case, such as the duration of the treatment and its physical or mental

effects (see eg. Eur. Court H.R., Ireland v. the United Kingdom,

judgment of 18 January 1978, Series A no. 25, p. 65, para. 162).

The Commission has examined the material submitted by the

applicants but beyond a reference to rashes suffered by one of the

children does not find any substantiation of the alleged physical

repercussions of the move to Jamaica. There is also no explanation of

the nature or degree of the alleged psychological effects. The

Commission accordingly finds that the complaint does not disclose that

the second, third or fourth applicants have been exposed to treatment

attaining the severity of inhuman or degrading treatment as prohibited

by the above provision.

It follows that these complaints must be rejected as manifestly

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

Convention.

2. The applicants complain that the deportation of the first

applicant constitutes a violation of their right to respect for their

family and private life. As a result the second, third and fourth

applicants were required to leave the country of which they are

citizens and in which they have the right to reside.

Article 8 (Art. 8) of the Convention provides as relevant:

"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 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 Government refer to previous case-law to the effect that

there is no breach of Article 8 (Art. 8) if it is reasonable for the

family unit to be maintained abroad. This applies to cases where

children are involved. They submit that it is not unreasonable to

expect the applicants to continue their family life in Jamaica, since,

inter alia, the first applicant is a Jamaican citizen familiar with

Jamaican culture and all the children are still young and could adapt

to Jamaican life. It is submitted that the applicants' family life with

Mr. Powell has been of a limited character, in view of his various

prison sentences and that the first applicant married him in

circumstances when deportation was a realistic prospect. There are, it

is pointed out, no apparent obstacles to Mr. Powell joining the family

in Jamaica on his release from prison and reference is made to the

serious crime committed by the first applicant and the fact that the

applicants were dependent on public funds before they went to Jamaica.

The Government further contend that the concept of "private life"

does not extend to social and economic benefits which may be derived

from residence in a particular country and that the applicants' British

citizenship cannot be interpreted as bestowing on them a private life

right to grow up in the United Kingdom.

The applicants seek to distinguish the earlier Commission case-

law. It is pointed out that these often involved alleged violations of

the rights of the parent who was an illegal immigrant and that no

detailed consideration was given to the child's rights. Also, previous

cases concerned children who had acquired British citizenship by being

born on British soil while their parents were both there illegally: in

this case, pursuant to a change in legislation, the second to fourth

applicants obtained their citizenship, or claim to citizenship, by

virtue of their mother's marriage to their father who is a British

citizen - ius sanguinis rather than ius soli.

In answer to the claim that it is reasonable to expect the

applicants to live in Jamaica, they point out that Mr. Powell, the

husband and father of the family, remains in the United Kingdom serving

a prison sentence and is unable to join them. The departure of the

applicants means that they are totally separated from him and unable

to enjoy such restricted family life as is consonant with detention.

There is no justification for severing all direct contact between the

father and his children, which measure is in fact contrary to the

principles of family re-unification and protection of the welfare of

the children. It is claimed that on his release the Jamaican

authorities are not willing to allow him to enter due to his serious

criminal record and their expectation that the family, most of whom are

British citizens, should make their home in the United Kingdom.

In addition, the applicants dispute that they are of an

"adaptable age", since the move has involved serious interruption to

their settled lives and, for example, the removal of the second

applicant from her schooling at the crucial age of moving from primary

to secondary school. It has also in its effects infringed their

physical and moral integrity. The applicants further argue that it is

unreasonable and disproportionate to expect child British citizens to

tolerate being exiled from the United Kingdom for the duration of their

childhood, in effect, because they are of Jamaican ethnic origin. They

refer to the general principle of international law prohibiting the

expulsion of one's own nationals and that the United Kingdom cannot

justify an interference with Article 8 (Art. 8) which breaches such a

general principle.

Insofar as the applicants claim that the second, third and fourth

applicants are being constructively deported from the United Kingdom

of which they are citizens, the Commission notes that the United

Kingdom has not ratified Protocol No. 4 (P4), which in Article 3

(Art. 3) provides that no-one shall be expelled from the territory of

a State in which he is a national. The Commission may therefore only

examine the extent to which the removal of the first applicant affects

the applicants' right to respect for their family or private life.

The Commission recalls according to its established case-law

that, while 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 close relatives reside or have the right to reside (see eg. 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. 9285/81, Dec. 8.7.82, D.R. 29, p. 205).

However, the Commission recalls that 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. The Court

has held that 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). The Commission considers that this

also applies to situations where members of a family, other than

spouses, are non-nationals. 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

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 applicant children are ten, five and one

respectively and the latter two particularly will be young enough to

adapt to the change in environment. The Commission finds that the

material provided by the applicants does not disclose that their

physical and moral integrity has been significantly interfered with by

the move. The Commission is of the opinion that there are no

insurmountable obstacles which prevent them from residing with the

first applicant in Jamaica. It recalls that the first applicant, who

had been brought up in Jamaica, entered as a visitor and did not obtain

the necessary permission to settle in the United Kingdom on a longterm

basis. It notes also the criminal offences of which the applicant was

convicted and which led to the recommendation for deportation.

While Mr. Powell, husband of the first applicant and father of

the second, third and fourth applicants, remains in the United Kingdom,

the Commission recalls that he is serving a relatively short prison

sentence and his contacts with the applicants were necessarily

restricted even before they left for Jamaica. The applicants have not

substantiated their claim that there would be obstacles to him

rejoining the applicants in Jamaica on his release. If it was the case

that, due to decisions issued by competent authorities in both the

United Kingdom and Jamaica, it was not possible for the family to live

together, the Commission would find this to constitute a significant

element to be taken into account in the assessment of the compatibility

of a measure of exclusion of part of a family with the requirements of

Article 8 (Art. 8) of the Convention.

In short, 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 controls. The removal accordingly does not exhibit a

lack of respect for the applicants' right to respect for family or

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

Convention.

It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. The applicants submit that the applicant children have been

deprived of their right to a British education.

Article 2 of Protocol No. 1 (P1-2) of the Convention provides as

relevant:

"No person shall be denied the right to education ....".

The Commission notes its findings above. In the circumstances of

this case, it considers that the applicants' departure from the United

Kingdom to accompany their mother, the first applicant, cannot be

construed as a deprivation of the right to education.

It follows that this complaint 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.

Secretary to the First Chamber President of the First Chamber

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

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P.P. AND OTHERS v. THE UNITED KINGDOM

P.P. AND OTHERS v. THE UNITED KINGDOM

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