Lexploria

Application No. 18941/91

by A.K., A.K. and

S.S.

against the United Kingdom

The European Commission of Human Rights sitting in private on

13 October 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

G.B. REFFI

B. CONFORTI

N. BRATZA

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 1 October 1991 by

A.K., A.K. and S.S. against the United Kingdom and registered on 11

October 1991 under file No. 18941/91;

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 first applicant is a British citizen born in 1991 and is the

daughter of the second and third applicants. The second applicant is

a British citizen born in 1969. The third applicant, the husband of the

second applicant, is an Indian citizen born in 1960. The applicants are

resident in the United Kingdom.

The applicants are represented by Ms. N. Mole, executive director

of the AIRE Centre, London.

The facts as submitted by the applicants may be summarised as

follows.

On 31 August 1983, the third applicant entered the United Kingdom

on a visa as the fiancé of a British citizen. Following marriage, he

was granted leave to stay as a husband until 20 January 1985. His

application for further leave to stay was refused since the marriage

had broken down and he was no longer living with his wife. At the end

of 1985 the third applicant was arrested and convicted of overstaying

his leave to remain in the United Kingdom. He was fined but the Court

did not recommend deportation.

In January 1987 the third applicant was divorced. In February

1987 he married again and on the basis of this marriage the Home Office

granted leave to stay as a husband until 6 January 1989. When the third

applicant applied for further leave to stay it was refused on the basis

that he and his second wife were having marital problems. In October

1989 they were divorced. The third applicant withdrew his appeal

against the refusal of leave on 30 November 1989.

In December 1989, the third applicant met the second applicant,

who had recently divorced her first husband largely because she was

concerned that he had only married her to obtain immigration status in

the United Kingdom. The second and third applicants were married in a

religious ceremony on 20 June 1990 and in a civil ceremony on 19

September 1990. They had received legal advice that the third applicant

would be granted leave to remain provided the marriage was genuine and

permanent.

On 20 August 1990, the Home Office decided to deport the third

applicant for overstaying his leave. The third applicant appealed

against this decision.

On 26 February 1991 the Adjudicator dismissed the appeal and

refused to make a recommendation to the Secretary of State on

compassionate grounds. He concluded :

"In all the circumstances, after due and sympathetic

consideration, I have come to the conclusion that I was not

impressed by the evidence. I am of the

opinion that he is a highly intelligent person who was, at all

times, fully aware of his immigration situation and, even though

some of the advice given to him may not have been all it might

be, I consider that he was sufficiently knowledgeable on his own

situation that he used the device of marriage to ladies settled

in the United Kingdom to prolong his stay here. Likewise, while

I sympathise with the third wife, I must take account of the fact

that she was fully aware of the situation and

had first-hand experience of the effects of marriage and divorce

on the matter of leave to remain in the United Kingdom, through

her first marriage. I do not consider that her going to India

with her husband would seriously affect her or her child or that,

if she remained here, her position would be anywhere nearly as

bad as the said it would be...

...On the whole of the evidence, both on the documents and that

given before me, I find that I am not persuaded on the balance

of probabilities that I should make a recommendation in this

matter.

I find that the acted correctly under the

immigration legislation and properly exercised his discretion..."

Counsel advised that there was no basis on which to appeal to the

Immigration Appeal Tribunal.

On 17 March 1991, the first applicant was born.

On 16 April 1991 the applicants' solicitors made representations

to the Secretary of State concerning the decision of the Adjudicator.

By reply dated 20 June 1991, the Secretary of State stated that

after reviewing the case in light of the representations he was not

prepared to alter his decision. The deportation order was served on the

third applicant on 10 July 1991. Removal directions were issued but

then deferred.

In an opinion dated 8 August 1991, counsel advised that there was

no arguable basis on which to apply for judicial review.

On 6 September 1991, the third applicant was informed that he

had been made the subject of a restriction order. This restricts his

place of residence and requires him to report to the police every seven

days.

The second and third applicants state that they plan to live in

the home that they own in the United Kingdom and that they plan to have

their daughter educated there. They refer to the British citizenship

of all their immediate relatives. They maintain that the proposed

deportation of the third applicant would have the effect of sending all

three applicants into permanent exile. They also state that they have

neither property nor family in India and that the third applicant's

only link with India is that of nationality.

COMPLAINTS

The applicants alleged that the decision to refuse to grant the

third applicant leave to remain in the United Kingdom and to order his

deportation constituted an unjustified interference with their right

to respect for their family life. They invoked Article 8 of the

Convention.

The applicants also alleged that the decision violated their

rights under Article 1 of Protocol No. 1 to the Convention and the

rights of the first and second applicants under Article 2 of that

Protocol.

The applicants further submitted that there was no effective

remedy in respect of their complaints as required by Article 13 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 October 1991 and registered

on 11 October 1991.

On 2 April 1992, the Commission decided to communicate the

application to the respondent Government and to ask for written

observations on the admissibility and merits of the application.

By letter dated 21 May 1992, the Government informed the

Secretariat that the deportation order against the third applicant had

been revoked. By letter dated 31 August 1993, the applicants'

representative informed the Secretariat that since in May 1993 the

applicants had received written confirmation of this position, they now

wished to withdraw the application.

REASONS FOR THE DECISION

The Commission recalls that the deportation order against the

third applicant has now been revoked and that the applicants wish to

withdraw their application.

In these circumstances the Commission finds that the applicants

no longer intend to pursue their application. The Commission further

considers that respect for Human Rights as defined in the Convention

does not require it to continue the examination of the application.

It follows that the application may be struck off the list of

cases pursuant to Article 30 para. 1(a) of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF THE LIST OF CASES.

Secretary to the First Chamber President of the First Chamber

(M.B. BUQUICCHIO) (A. WEITZEL)

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K. AND S. v. THE UNITED KINGDOM

K. AND S. v. THE UNITED KINGDOM