Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23938/94

by Jasmine SORABJEE

against the United Kingdom

The European Commission of Human Rights sitting in private on

23 October 1995, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

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

B. MARXER

G.B. REFFI

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 11 February 1994

by Jasmine SORABJEE against the United Kingdom and registered on

21 April 1994 under file No. 23938/94;

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

8 March 1995 and the observations in reply submitted by the

applicant on 15 May 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1992 and resident in

Leicester. She is represented before the Commission by Ms. Nuala Mole,

a lawyer working for the AIRE Centre in London.

The facts as submitted by the parties may be summarised as

follows.

In June 1989, the applicant's mother S., a Kenyan, married in

Kenya D., a British citizen. A Hindu by birth and upbringing, her

marriage to D who was a Parsi was regarded by her family as outside her

caste and socio-religious group. S. entered the United Kingdom in

April 1990 as a visitor without revealing to the Immigration Officer

that her reason for coming to the United Kingdom was to join her

husband. She had entered the United Kingdom on two previous occasions:

in 1985 as a student and in 1989, also as visitor. She was convicted

on two occasions of theft and fined £500 and given a two month

suspended prison sentence.

On 2 March 1991, the decision was taken by the Secretary of State

to remove S. as an illegal entrant.

On 26 March 1992, the applicant was born in the United Kingdom.

She acquired the status of a British citizen by virtue of her birth in

wedlock to her father, D., who was a British citizen.

In August 1992, S. and D. were divorced. D. originally denied

paternity but finally accepted that DNA evidence proved otherwise.

On 21 December 1993, the High Court rejected the applicant's

application for judicial review of the Secretary of State's decision.

On 14 February 1994, directions were issued for the removal of S.

Removal was deferred, pending further representations to the

Secretary of State.

The applicant was diagnosed in or about June 1994 as suffering

from a condition known as bilateral trigger thumb which means that she

does not have the full use of her thumbs. She was placed under the

care of a consultant who was monitoring whether in the absence of

improvement surgery would be required.

In a letter dated 30 June 1994, the Home Office informed the

Member of Parliament enquiring into the case that they were satisfied

that if the applicant required an operation the necessary expertise

would be available in Kenya. While this would entail cost there being

no free health care, it was considered that it was not unreasonable to

expect S. to be subject to the same social and economic conditions

which affect other Kenyan nationals. It is estimated that the cost in

Kenya of the necessary treatment would be 100,000 Kenya shillings

(approx. £ 1000).

On 1 July 1994, arrangements were made for S. accompanied by the

applicant to be removed from the United Kingdom to Kenya.

A further unsuccessful application for judicial review of her

removal was made by S. in July 1994. S. had also claimed asylum, which

was refused on 19 October 1994 and her appeal against that refusal is

pending before the an adjudicator. S. has not yet been removed from the

United Kingdom.

The surname carried by the applicant and her mother is a Parsi

name, but not the name of the applicant's Parsi father. It appears that

the applicant's mother has changed her original Hindu name without

adopting that of her ex-husband.

COMPLAINTS

The applicant complains that the decision to remove her mother

constitutes inhuman and degrading treatment contrary to Article 3 of

the Convention. She alleges that this has the consequence of forcing

her into exile from the United Kingdom of which she is a citizen and

in which she had a right of abode. Neither she nor her mother are

ethnic Kenyans and as East African Asians will be marginalised in

Kenyan society. They will also be excluded from the Hindu Asian socio-

religious group because of the circumstances of S.'s marriage. They

have no members of their immediate family in Kenya, most of S.'s family

now resident in the United Kingdom. Further the applicant's mother

suffers serious medical and psychiatric problems: a medical report

indicates that S. suffers from epilepsy and had been undergoing

treatment for that and psychotherapy in relation to serious personality

difficulties. S. has no means of support in Kenya and will no longer

benefit from the health care in the United Kingdom. The applicant, it

is submitted, is put at risk by the difficulties to which her mother

is now exposed. In addition, the applicant suffers from a condition

which may require surgery which her mother cannot afford: the effect

of denying her this treatment could lead to irreparable damage to the

development of her manual and co-ordination skills.

The applicant invokes Article 8 of the Convention in respect of

the removal. She submits that she has lived with her mother in the

United Kingdom since her birth. Her British citizenship derives from

her birth to a British national father who had acquired his nationality

by birth and is not dependent on the fact that she happened to be born

on British soil. Her mother would have qualified as resident as spouse

of a British citizen but she did not complete the necessary formalities

while the marriage subsisted. The removal will exclude her from

enjoying the health education and welfare benefits to which she has a

right as a British citizen and also from forming any contact with her

father at a later stage. The decision faced her with the option of

remaining in the United Kingdom probably in local authority care, to

avail of her rights as a British citizen or the option of accompanying

her mother to Kenya, where she will be unable to enter mainstream

society, and sacrificing her private life right to grow up in the

United Kingdom.

The applicant invokes Article 2 of Protocol No. 1 to the

Convention. She submits that she will be deprived of education in

British schools and will be unable to afford equivalent education in

Kenya. It will therefore be unlikely that she could later qualify to

attend university in the United Kingdom when she is of an age to

return.

The applicant finally invokes Article 13 of the Convention in

that there is no effective remedy in respect of the removal and

Article 14 of the Convention in that the applicant is discriminated

against as a result of her status as a child of a divorced foreign

mother.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 February 1994. On the same

date, the President refused to indicate interim measures pursuant to

Rule 36 of the Commission's Rules of Procedure concerning the removal

of the applicant's mother.

The application was registered on 12 April 1994.

On 30 June 1994, the applicant's lawyer requested that the

Commission indicate interim measures concerning the removal pursuant

to Rule 36 of the Commission's Rules of Procedure. On 1 July 1994, the

Commission declined to do so.

On 12 October 1994, 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

8 March 1995, after three extensions of the time-limit fixed for that

purpose. The applicant replied on 15 May 1995.

On 24 May 1995, the Commission granted the applicant legal aid.

THE LAW

1. The applicant complains that the removal of her mother to Kenya,

obliging her to leave also, is in violation of 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 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 applicant refers to the hardship which she is likely to face

due to her mother's isolation in Kenyan society and also to the risk

of a lack of necessary medical treatment.

The Commission recalls that the applicant's mother is a Kenyan

citizen who had lived in Kenya before her arrival in the United

Kingdom. The Commission notes the circumstances surrounding her

marriage and its possible effect, inter alia, on relations with family

members but does not consider that this exposes the applicant or her

mother to risk of treatment within the scope of Article 3 (Art. 3). It

does not find that the applicant has established that circumstances as

such in Kenya with regard to East African Asians discloses treatment

attaining the severity of inhuman or degrading treatment.

As regards the possible lack of medical treatment, the Commission

does not find it established that such treatment is necessary or that

lack of such treatment would be likely to have a life-threatening or

incapacitating effect as might to raise an issue under Article 3

(Art. 3). Further it appears that treatment would be available in

Kenya, although this would require payment to be made.

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 applicant complains that she is being required to leave the

country of which she is a citizen and in which she has the right to

reside as the result of the removal of her mother. This infringes, she

submits, her right to respect for her family and private life.

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."

Article 26 (Art. 26) of the Convention: exhaustion of domestic

remedies

The Government submit that there is a pending asylum appeal

which, if successful, will prevent the removal of the applicant's

mother and that, accordingly, the application is premature.

The applicant argues that an asylum application is different

legally and substantively from an application under the Convention.

Accordingly, it cannot be regarded as a remedy for her complaints under

the provisions of the Convention.

The Commission recalls that Article 26 (Art. 26) of the

Convention only requires the exhaustion of such remedies which relate

to the breaches of the Convention alleged and at the same time can

provide effective and sufficient redress. An applicant does not need

to exercise remedies which, although theoretically of a nature to

constitute remedies, do not in reality offer any chance of redressing

the alleged breach. It is furthermore established that the burden of

proving the existence of available and sufficient domestic remedies

lies upon the State invoking the rule (cf. Eur. Court H.R., De Jong,

Baljet and Van den Brink judgment of 22 May 1984, Series A no. 77,

p. 18, para. 36).

The Commission finds that an application by the applicant's

mother for asylum on the basis of a fear of persecution cannot be

considered as a remedy for the applicant's complaints of interference,

inter alia, with her family and private life or of discrimination.

The Commission concludes that this complaint cannot be rejected

for non-exhaustion of domestic remedies under Articles 26 (Art. 26) and

27 para. 3 (Art. 27-3) of the Convention.

Substantive complaints

Insofar as the applicant complains that she has been effectively

expelled from the United Kingdom, the Commission notes that the United

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

provides that no-one shall be expelled from the territory of a State

of which he is a national. The Commission may therefore only examine

the extent to which the removal of the applicant's mother has effected

the applicant's right to family or private life.

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 must also be the position

where children are involved. The Government submit it would be

reasonable to expect the applicant to follow her mother for the

following reasons: she is young and can adapt, her mother is a Kenyan

national and has professional qualifications from Kenya and can work

there, and her maternal grandmother is a Kenyan national. As regards

the claimed hostility and risk of isolation in Kenya, the Government

submit that there is a community of 29 000 Asians, some of whom are

second generation and have renounced British citizenship in favour of

Kenyan. Many own property and enjoy economic prosperity and, while

there have been occasional attacks on Asians, the Kenyan government

have condemned them and there is no reason to suppose that the law does

not operate to protect them.

Even supposing there was any interference, the Government submit

that the expulsion would be justified under the second paragraph having

regard, inter alia, to her mother's bad immigration record, her

criminal record, her dependence on public funds and State provided

accommodation.

The applicant seeks to distinguish the earlier Commission case-

law. It is pointed out that the earlier cases 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

applicant obtained her citizenship by virtue of her mother's marriage

to her father who was a British citizen - ius sanguinis rather than ius

soli.

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

applicant to follow her mother and that she is of an "adaptable age",

the applicant argues that the question is rather whether it is

reasonable for a Contracting State to expect its own citizen children,

who have acquired that citizenship otherwise than by an accident of

geography, to live in prolonged exile from the country of citizenship

because of the irregular immigration position of the one parent who

happens to have custody of them. As to justification and

proportionality, the applicant states that her mother's criminal record

is minor and that her mother by her marriage had gained a prima facie

entitlement to remain but failed to fulfil the necessary formalities.

A report from an expert in South Asian laws has been submitted which,

inter alia, supports the probable prolonged isolation of the applicant

and her mother on return to Kenya and their difficulties as members of

a minority in face of a policy of "africanisation" which places Asians

at a distinct disadvantage in business and professional life and in

obtaining access to education.

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. 6.7.82, D.R. 29, p. 205).

However, the Commission notes 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

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, three years old, is likely

to follow her mother on removal. As a result she may have to leave the

society where she was born and face the hardship of living in a society

where, due to family, socio-religious factors her mother risks having

difficulties in integrating into any community there. The Commission

recalls however that the mother was an illegal immigrant who had lived

previously in Kenya. It finds that the applicant is of an age at which

it can be expected that she can adapt to the change in environment.

With reference to the applicant's links with her father, it does not

appear from the material before the Commission that the removal would

disrupt the relationship, there being no apparent established bond

between them.

While the applicant has argued that weight should be given to her

British citizenship, the Commission notes that in previous cases the

factor of the citizenship has not been considered of particular

significance (eg. No. 11970/86, dec. 13.7.87, unpublished, where the

Commission found it compatible with Article 8 (Art. 8) to expect

children of unlawful overstayers to follow their parents even if they

had acquired theoretical rights of abode in the deporting country).

While, as the applicant points out, the children in that case had

obtained British citizenship by ius soli whereas she derived her

citizenship by ius sanguinis through her British father, the Commission

does not find that to be a material distinction where the child

nonetheless is of an adaptable age and there are no effective obstacles

to her accompanying her mother.

As regards the problems with respect to possible shortcomings in

health care in Kenya, these are not, in the Commission's view, of such

a nature or degree as to impinge on respect for family or private life.

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. It concludes that the removal does not disclose a 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.

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 applicant submits that she has, by the circumstances of her

mother's removal to Kenya, been deprived of her right to education.

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

relevant:

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

The Commission notes its findings above and finds that the

applicant's departure from the United Kingdom to accompany her mother

who is being deported pursuant to a legitimate measure of immigration

control cannot be construed as a deprivation of the right to education

within the meaning of the provision above.

It follows that this complaint is manifestly ill-founded within

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

4. The applicant complains that she has been discriminated against

contrary to Article 14 (Art. 14) of the Convention which provides:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

As regards alleged discrimination, the Government consider that

a legitimate distinction is made between British citizens, who have

parents with the right to remain in the United Kingdom and others who

do not, a distinction justified by the need to maintain the integrity

of the State's immigration policy.

The applicant submits that she is the subject of discrimination

in that as a minor British citizen with a non-national custodial parent

and whose father has broken off contact she is deprived of her right

to remain in the United Kingdom. This is a difference in treatment

applied to children whose British fathers remain in contact and those

whose British fathers have rejected them: in the latter case,

additional requirements are imposed on the children in respect of

whether they should be allowed to stay. This is not objectively

justifiable and is in fact a punishment for a child already the victim

of paternal rejection.

However, even assuming that the applicant can be said to be in

a comparable position as regards other British minors who are in a

different situation in respect of their parents, the Commission recalls

that whether a difference in treatment constitutes discrimination in

the sense of Article 14 (Art. 14) of the Convention depends on whether

or not there exists an objective and reasonable justification. This

requires that the difference pursues a legitimate aim and that there

is a reasonable relationship of proportionality between the means

employed and the aim sought to be realised. In this assessment of

whether and to what extent differences in otherwise similar situations

justify a different treatment, Contracting States enjoy a margin of

appreciation which will vary according to the circumstances, subject-

matter and background (see eg. Eur. Court H.R., Lithgow and Others

judgment of 8 July 1986, Series A no. 102, pp. 66-67, para. 177).

Having regard to the above, the Commission recalls that it has

found the proposed measure to be compatible with the requirements of

Article 8 (Art. 8) of the Convention in respect of the implementation

by the United Kingdom of its immigration policy. It recalls the fact

that the applicant's mother was in breach of immigration regulations

and that there are no obstacles preventing the applicant, who is of an

adaptable age, from continuing her family and private life with her

mother in Kenya. The Commission consequently finds that the proposed

measure of deportation of the applicant's mother, which will probably

require the applicant to accompany her, falls within the margin of

appreciation enjoyed by the domestic authorities.

It follows that this complaint must also be rejected as

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

(Art. 27-2) of the Convention.

5. Finally, the applicant also invokes Article 13 (Art. 13) of the

Convention, which provides that :

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission recalls however that Article 13 (Art. 13) 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 applicant cannot be said, in light

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

her Convention rights.

It follows that this complaint 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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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SORABJEE v. the UNITED KINGDOM

SORABJEE v. the UNITED KINGDOM

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