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AS TO THE ADMISSIBILITY OF

Application No. 22521/93

by S.H.

against Ireland

The European Commission of Human Rights (First Chamber) sitting

in private on 1 December 1993, 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

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

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 4 April 1992 by

S.H. against Ireland and registered on 24 August 1993 under file

No.22521/93;

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 Irish national born in 1991. She is

represented in the proceedings before the Commission by her father, an

Irish citizen currently living in London.

The facts, as submitted by the applicant and which may be deduced

from the documents lodged with the application, may be summarised as

follows.

The applicant`s father is an Irish citizen who emigrated from

Ireland as a teenager. He later married G.A.A., a Ghanaian

national. The couple have two children, one of whom is the applicant.

The couple originally lived in Ghana. However, as a consequence

of the detention of the applicant`s father as an alleged spy, in or

about 1991 they moved to Bulgaria.

On 7 April 1991 the applicant was born in Bulgaria.

On 1 March 1992 the family decided to move to Greece. In Greece

G.A.A. applied for an Irish visa. On or about 9 March 1992 G.A.A.

returned to Accra, Ghana.

On 26 March 1992 the applicant's father was informed by the Irish

Embassy in Athens that the Department of Justice in Dublin had refused

G.A.A.`s application for an Irish visa.

In or about April 1992 the applicant's father moved to London,

apparently with the applicant and her sibling.

On 14 May 1992 the applicant's father was informed by the Irish

Embassy in London that the Department of Justice would not enter into

correspondence with the applicant's father. The Embassy added,

however, that G.A.A. could submit a new visa application at any time

and supplied an application form.

On 17 May 1992 G.A.A. again applied for an Irish visa.

On 29 June 1992 the applicant's father wrote to the Irish Embassy

in London, requesting information about the Irish domestic remedies

available to G.A.A. No reply has been given to him.

On 24 July 1992 the applicant's father was informed by the Irish

Embassy in London that G.A.A.`s latest application had been

unsuccessful. G.A.A. asked for reasons for the refusal and applied for

Irish citizenship.

On 30 July 1992 the applicant's father wrote a further letter to

the Irish Embassy in London, again asking whether any domestic remedy

is available to G.A.A. No reply has been given to him.

On 16 September 1992 the Irish Embassy in London informed the

applicant's father that they do not generally give reasons for the

refusal of visa facilities in a particular case.

On 18 January 1993 the applicant's father was informed by the

Irish Embassy in London, in substance, that GAA, under the Irish

Nationality and Citizenship Act, could not apply for post-nuptial

citizenship as she and he were not living together as husband and wife.

On 10 February 1993 the applicant's father was advised by British

solicitors that he should try to ascertain if legal aid was available

in Ireland as the case concerns Ireland and Irish law. He tried to

obtain legal aid via the Irish Embassy, London and Irish private firms

of solicitors, but in most cases no reply was given to him.

On 15 March 1993 an Irish firm of solicitors in Dublin took up

the matter with the Department of Justice and Department of Foreign

Affairs, but after his reply to enquiries from this firm the

applicant's father states that he heard nothing more.

A third application for a visa was refused on 12 May 1993

On 28 July 1993 the father of the applicant was informed by the

Irish Law Society that the Law Society is unable to provide him with

any legal aid.

COMPLAINTS

The applicant claims that her and her mother`s treatment by the

Irish authorities amounts to inhuman and degrading treatment and

invokes Article 3 of the Convention.

The applicant complains under Article 8 of the Convention that

her mother cannot enter Ireland. In this respect she claims that this

denial is discriminatory and invokes Article 14 of the Convention.

Finally, under Article 13 of the Convention the applicant

complains that there is no effective remedy available to her.

THE LAW

1. The applicant, through her father, complains that her mother is

not able to enter Ireland. She invokes Articles 3, 8, 13 and 14

(Art. 3, 8, 13, 14) of the Convention.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of the above Articles as, 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.

In particular, the applicant has failed to bring proceedings in

the High Court which, with the possibility of an appeal to the Supreme

Court, constitutes the most appropriate method under Irish law of

seeking to assert and vindicate constitutional rights (cf. No.

15141/89, Dec. 15. 2. 90, D.R. 64, pp. 203-206).

In particular, it would be open to the applicant and her parents

to apply to the High Court for an Order directing the Minister for

Justice to grant the mother a visa having regard to the child's rights

under Article 41 of the Constitution and/or to challenge the

constitutionality of the relevant part of the Irish Nationality and

Citizenship Act (cf. Fajujonu v. the Minister for Justice (1990 ILRM

Vol. 10 No. 4). The applicant has failed to do so. Indeed, the

applicant apears not even to have applied to the Irish Legal Aid Board

for legal aid.

Moreover, an examination of the case as it has been submitted

does not disclose the existence of any special circumstances which

might have absolved her, according to the generally recognised rules

of international law, from exhausting the domestic remedies at her

disposal. In particular, the fact that the applicant`s father on

several occasions requested the Irish authorities to provide him with

information about the available domestic remedies available to him but

received no or no proper reply does not constitute a `special

circumstance` in this respect.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and that her application must

be rejected under Article 27 para. 3 (Art. 27-3) 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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S.H. v. IRELAND

S.H. v. IRELAND