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AS TO THE ADMISSIBILITY OF

Application No. 22471/93

by Kailash Kaur SINGH

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 10 March 1993 by

Kailash Kaur SINGH against the United Kingdom and registered on

18 August 1994 under file No. 22471/93;

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 an Indian citizen born in 1955 and resident in

Ambala, India. The applicant is represented before the Commission by

Ms. Nuala Mole of the AIRE Centre, London.

The applicant entered the United Kingdom in April 1984 with leave

to stay as a visitor for 3 months. Her five minor children accompanied

her. The applicant's husband arrived in May 1984 with temporary

permission to stay. An application for political asylum was made on

behalf of the family after Mrs. Gandhi's assassination on the ground

that as Sikhs the family would face persecution. It was alleged that

the family's property in India, including their house and business had

been destroyed in disturbances and that the applicant's brother-in-law

had been killed.

On 8 January 1986, the applicant gave birth to a sixth child.

In March 1986, the asylum application was refused and the appeal

to the Chief Adjudicator turned down in November 1986 on the basis that

the family had no well-founded fear of persecution if returned to

India.

On 21 January 1988, two separate notices of intention to deport

were served in respect of the applicant's husband and of the applicant

with her children.

On 19 June 1989, the family's appeals against deportation were

dismissed by an Adjudicator.

On 9 August 1989, the applicant's seventh child was born.

On 8 September 1989, the application to the Immigration Appeal

Tribunal for leave to appeal was refused.

On 2 January 1990, deportation orders were signed in respect of

the applicant, her husband and children.

The family moved to Nottingham and though the Secretary of State

was informed by the applicant's husband employer, the Sikh Temple, the

letter was misfiled and the family was considered by the Home Office

as having gone into hiding.

On 24 January 1991, the applicant's husband was arrested.

On 8 July 1991, the applicant's 6 minor children were made wards

of court on the application of the applicant's eldest daughter G. who

submitted that the applicant was incapable of caring for the children

because of her poor health. G. was given care and control of the

children who had been living in her care already. The applicant, who

was living with a relative apart from the children, did not oppose the

application.

On 8 July 1991, the applicant's husband was deported to India.

The applicant's own removal was postponed pending the outcome of the

wardship proceedings.

On 23 August 1991, the district judge discharged the wardship as

an abuse of process aimed at circumventing immigration controls.

On 17 October a judge of the Family Division of the High Court

upheld an appeal and ordered the wardship to continue until the

Secretary of State had obtained a deportation order against the eldest

daughter and the time for all appeals against the order had expired.

On 5 December 1991, the applicant made an application to the Home

Office for exceptional leave on the basis of her poor psychological

health and that forced separation from her children would be in

violation of Article 8 of the Convention.

On 11 June 1992, the Secretary of State decided that the

circumstances of the applicant's case were not compelling or

exceptional enough to revoke the deportation order. On 17 June 1992,

the Home Office informed the applicant that they intended to deport her

without her children.

On 22 June 1992, the applicant attempted suicide. The applicant's

representatives requested the Home Office to reconsider their

decision. An extension was granted until 31 July 1992 for reports to

be presented. Psychiatric, social worker and school reports were

presented on 31 July 1992.

On 18 September 1992, the application for judicial review of the

decision not to defer removal was refused. The applicant was deported.

COMPLAINTS

The applicant submits that her deportation constitutes a

violation of her right to respect for her family life under Article 8

of the Convention. She is now separated from her children. The two

youngest children born in England cannot be deported. The children may

not be removed from the country without the permission of the court.

The children's guardian G. will not consent to seeking the permission

of the court in respect of the three eldest children since they do not

wish to go to India. Further, the children in any event have been

settled in the United Kingdom for some years and while they speak

Punjabi they cannot read or write it. Most of their relatives are in

the United Kingdom and they have little incentive to return voluntarily

to India. The applicant is surviving with her husband in India with

great difficulty since the family's property was destroyed in the

disturbances which followed the assassination of Mrs. Gandhi.

Accordingly, the measure of deportation was, in her submission, not

proportionate to any legitimate aim of immigration control.

THE LAW

The applicant complains that the deportation constituted a

violation of her right to respect for ther family life contrary to

Article 8 (Art. 8) of the Convention which 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 however that the under Article 26

(Art. 26) of the Convention it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law.

The Commission notes that the applicant's complaint is based on

the separation from her children which has resulted from her

deportation. The Commission recalls that until the children were made

wards of court the children were to be deported in the company of their

mother. The Commission notes that the applicant did not oppose this

wardship application. Further it remains open to her as a party in the

wardship proceedings to apply to the court for permission for them to

rejoin her and her husband.

The applicant has consequently not exhausted the remedies

available to her under United Kingdom law in respect of her complaints.

Moreover, an examination of the case does not disclose the existence

of any special circumstances which might have absolved the applicant,

according to the generally recognised rules of international law, from

exhausting the domestic remedies at her disposal.

It follows that the applicant has not complied with the condition

as to exhaustion of domestic remedies and her application must be

rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

To the extent that the applicant's complaints might imply that

she should be allowed to remain in the United Kingdom with the children

whether or not they are wards, the Commission recalls that Article 8

(Art. 8) of the Convention does not guarantee a right, as such, to

enter or remain in a particular country (see eg. Nos. 9088/80,

Dec. 6.3.82, D.R. 28 p. 160 and 9285/81, Dec. 6.7.82, D.R. 29 p. 205).

The applicant and her older children were born in India and lived there

until 1984. The children understand, though cannot read or write,

Punjabi. The Commission finds no indication on the facts of this case

that the decision of the immigration authorities refusing leave for the

family as a whole to remain constituted a failure to respect the

applicant's family life. This aspect of the case must therefore be

rejected 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 First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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SINGH v. THE UNITED KINGDOM

SINGH v. THE UNITED KINGDOM

LEXI