Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26373/95

by Mohamoud ASKAR

against the United Kingdom

The European Commission of Human Rights sitting in private on

16 October 1995, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

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

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

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 28 November 1994

by Mohamoud ASKAR against the United Kingdom and registered on

1 February 1995 under file No. 26373/95;

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 Somali citizen born in 1965 and currently

resident in Southall. He is represented before the Commission by Ms.

Sonali Ghelani, a solicitor practising in London.

The facts as submitted by the applicant may be summarised as

follows.

The applicant, born in 1965 in Northern Somalia, is a member of

the Issaq tribe.

At the time of the outbreak of civil war in May 1988, the

applicant worked as a civil servant in Hargeisa where he lived with his

second wife, his sister and two half brothers. His first wife and their

children whom he supported and visited on a regular basis lived nearby.

On the outbreak of the war, the applicant, as happened with many

civil servants and soldiers of the Issaq tribe, was arrested and

detained, first in Hageisa and then in a special security detention

centre in Godka. He was released after eight months' detention in

January 1989.

During his detention, his first wife and their children, his

sisters and half-brothers and his second wife fled to Ethiopian refugee

camps. On the applicant's release, he tried to join his family but was

prevented from doing so. His second wife who had contracted malaria and

jaundice travelled to Mogadishu for treatment where she succeeded in

rejoining the applicant.

In December 1989, the applicant and his second wife left Somalia

and on arrival in the United Kingdom on 3 December 1989, applied for

asylum.

On 28 February 1990, the Home Office notified the applicant that

he had been recognised as a refugee pursuant to the 1951 United Nations

Convention relating to the status of refugees and its 1967 protocol.

On 19 June 1990, the applicant's father died in Germany. He had

been a high ranking police officer in Somalia and his flight to Germany

was regarded as a defection by the Somali authorities. This had

repercussions on the family remaining in Somalia. One of the

applicant's brothers was detained and killed in prison.

By letter dated 15 July 1990, the applicant applied to the Home

Office Refugee and Special Case Unit for reunion with the members of

his family living in Ethiopian refugee camps and Mogadishu. These

included his mother, two sisters, seven brothers, his two sons and his

daughter.

In December 1991, a report reached the applicant, now head of his

family, that the members of the family previously in Somalia had

escaped to the Harshin refugee camp in Ethiopia.

On 3 January 1992, the applicant requested the assistance of his

Member of Parliament in his application for family reunion.

On 27 January 1992, in its first response to his request, the

Home Office requested further information. Following a second request

for information from the Home Office, the applicant's request was

refused by letter dated 4 November 1992.

On 1 February 1993, the applicant appealed to the adjudicator on

behalf of his family. His appeal has not yet been heard. It is being

held in abeyance pending the outcome of another case, Abdi, before the

Court of Appeal (see Relevant domestic law and practice below).

The applicant has heard since that his mother, one of his

brothers and two of his children have been seriously ill. He is

extremely worried about the high mortality rate in the Ethiopian

refugee camp. As a result of his own experiences and the worry in

respect of his family, the applicant, according to a psychological

report dated 20 November 1993, suffers from a clinical depressive

disorder and post traumatic stress disorder, with symptoms, inter alia,

of insomnia, guilt, hypervigilance and hyperventilation syndrome.

Meanwhile, in June 1993, four of the applicant's brothers

(sisters) aged 16, 14, 13, 11 who had fled to Germany with their father

rejoined the applicant in the United Kingdom where they were granted

refugee status.

Relevant domestic law and practice

The policy letter of 17 May 1990 from the Home Office set out the

following practice. As a general rule, applications for foreign

nationals to come to the United Kingdom must be made at a United

Kingdom diplomatic post overseas. However as a concession to the fact

that many of those displaced by the war in Northern Somalia were unable

to make such an application, in September 1988 the Ministers agreed to

introduce a concession whereby the United Kingdom sponsor could present

the case to the Home Office so that the visa applications could be

determined before the applicants set out on the difficult and hazardous

journey to the nearest British Embassy. This concession was to be

restricted to relatives living in refugee camps in Ethiopia and

Djibouti.

The policy letter took into account not only the immediate

members of the sponsor's family (ie. spouse and minor children) but

stated that, given the nature of the Somali family, there was the

possibility of flexibility, and exceptionally there would be

recognition of other relatives where he or she was a dependent member

of the refugee's family before the refugee came to the United Kingdom.

A review of this concessionary policy took place and it was

withdrawn with effect from 27 January 1994, a public statement being

made to this effect in the House of Commons on 25 January 1994. It did

not affect cases which had been raised with the Home Office prior to

that date. It was explained that the concession was withdrawn since

Ethiopia where most of the displaced Somalis were to be found had been

at peace for nearly three years and the evidence was that Somali

nationals could move about safely and it was open to applicants to seek

entry clearance at posts in Addis Ababa, Nairobi or Djibouti in the

normal way.

The Home Office has taken the view that decisions refusing to

apply the concessionary facility to an applicant are not appealable to

the Immigration Adjudicator and the Immigration Appeal Tribunal.

Decisions however have been made in cases by Adjudicators and the

Tribunal that such decisions are subject under the relevant legislation

and rules to a right of appeal. The case of Suleiman Abdi which

concerns the issue is pending before the Court of Appeal. It was

anticipated that the case would be heard on 25 June 1995.

COMPLAINTS

The applicant complains of the interference with his right to

respect for his family life. He refers to the gravity of the plight of

Somali refugees in Ethiopia and the grave risks which he would face as

a recognised refugee if he sought re-unification with his family by

travelling to Ethiopia. He emphasises the urgency of the situation and

the unacceptable delay in dealing with his application, which is

disproportionate and is in itself an unjustifiable interference under

Article 8 of the Convention.

The applicant submits that as a matter of English law the case

involves rights under domestic law which, since they concern family

life, are "civil" in character. The delay in determining the dispute

as to his rights discloses a violation of Article 6 para. 1 of the

Convention.

Alternatively, the applicant submits that there is a violation

of Article 13 of the Convention.

THE LAW

1. The applicant complains that the delay in determination of his

application for the re-unification of his family in the United Kingdom

interferes with his right to respect for his family life contrary to

Article 8 (Art. 8) of the Convention.

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

"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 there is no right for an alien to

enter or reside in a particular country as such guaranteed by the

Convention. However exclusion of a person from a country in which his

close relatives live could involve a violation of Article 8 (Art. 8)

of the Convention (see eg. No. 12411/86, Dec. 4.3.87, D.R. 51, p. 245).

The Commission notes that the applicant's pending application

before the United Kingdom authorities concerns his mother, two sisters,

seven brothers and three of his children. Whether "family life" exists

between relatives, particularly those of adult years, for the purposes

of Article 8 (Art. 8) depends on the closeness of ties and the

existence of elements of dependency, whether financial or emotional

(see eg. No. 9492/81, Dec. 14.7.82, D.R. 30, p. 232 and 10375/83, Dec.

10.12.83, D.R. 40, p. 196). The Commission finds it unnecessary to

determine whether the relationships of the applicant with the various

relatives concerned in the application fall in each case within the

protection offered by Article 8 (Art. 8) of the Convention as the

application must in any case be rejected for the reasons set out below.

The applicant complains of the delay in the proceedings

concerning his application to the Home Office for permission for his

relatives to join him in the United Kingdom. He argues that having

regard to the grave situation in which his relatives are living the

matter should be dealt with urgently. The delay, from his first request

of 15 July 1990 to date, is, he submits, excessive and disproportionate

to such a degree as to disclose a violation of his right to respect

for his family life.

The Commission recalls that delay in proceedings concerning

matters of "family life" may raise issues under Article 8 (Art. 8) of

the Convention. In the case of H. v. the United Kingdom, the Court

found a violation of Article 8 (Art. 8) in respect of proceedings

concerning the applicant mother's access to her child which lasted two

years and seven months. However, the Court had regard in reaching that

conclusion to the fact that the proceedings concerned a fundamental

element of family life (whether the mother would be allowed to see her

child again) and that they had a quality of irreversibility, lying

within an area in which delay might lead to a de facto determination

of the matter, whereas an effective respect for the mother's family

life required that the question be determined solely in the light of

all relevant considerations and not by mere effluxion of time (Eur.

Court H.R. H. v. the United Kingdom judgment of 8 July 1987, Series A

no. 120 p. 64, paras. 89-90; W. v. the United Kingdom, judgment of

8 July 1987, Series A no. 121, p. 29, para. 65 and R. v. the United

Kingdom, judgment of 8 July 1987, Series A no. 121, p. 119, para. 70

and p. 121, para. 74).

The Commission finds that the present case is not comparable. The

subject-matter of the proceedings concerns the granting of permission

to enter the United Kingdom for members of the applicant's family, whom

the applicant has not seen for at least six years and with some of whom

the nature of his ties has not been specified beyond the fact that,

pursuant to Somali tradition, the applicant has on the death of his

father become head of the extended family group. Further, it is not

apparent that the delay in the proceedings has any prejudicial effect

on their eventual determination or that the effect of the passage of

time is such as to prevent the proper and fair examination of the

merits of the case.

Consequently, the Commission finds that on the facts of this case

the applicant's complaints fail to disclose a lack of respect for his

family life.

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.

2. The applicant complains that the excessive delay in the

proceedings is in violation of Article 6 para. 1 (Art. 6-1) of the

Convention, which provides in its first sentence:

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair

and public hearing within a reasonable time by an independent and

impartial tribunal established by law."

The Commission recalls its constant case-law that this provision

has no application to asylum, expulsion, deportation proceedings or the

like (cf. No. 8118/77, Omkarananda v. Switzerland, Dec. 19.3.81,

D.R. 25, p. 105, and No. 9990/92, Bozano v. France, Dec. 15.5.84,

D.R. 39, p. 119). It follows that this part of the application must

be rejected as being incompatible ratione materiae with the provisions

of the Convention, pursuant to Article 27 para. 2 (Art. 27-2) of the

Convention.

3. 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

his 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)

Menu

ASKAR v. the UNITED KINGDOM

ASKAR v. the UNITED KINGDOM

LEXI