AS TO THE ADMISSIBILITY

Application No. 11970/86

by O.and O.L.

against the United Kingdom

        The European Commission of Human Rights sitting in private on

13 July 1987, the following members being present:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     S. TRECHSEL

                     F. ERMACORA

                     E. BUSUTTIL

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

                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 6 February 1986

by O. and O.L. against the United Kingdom and registered

on 7 February 1986 under file No. 11970/86;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicants are brothers born in 1972 and 1979

respectively.  They are British citizens by virtue of their birth in

the United Kingdom whilst their parents, Turkish Cypriots, were in the

United Kingdom.

        The application is brought on behalf of the applicants by

Messrs.  Cecil Altman & Co., Solicitors, London.

        The facts as submitted may be summarised as follows:

        The applicants' father worked as a clerk in the Logistics

Department of the Cyprus Turkish Contingent in Nicosia, Cyprus,

between 1964 and 1974.  His work gave him access to classified

information whereby he learned of Turkish Government plans to invade

Cyprus in 1970/71.  As he was opposed to such plans he tried to resign

in 1971, but his resignation was refused.  He therefore fled from

Cyprus with his wife using false passports.  They were given six

months leave of entry into the United Kingdom, which leave was

extended until October 1972, when the first applicant was born.

        In 1972 the applicants' maternal uncle was murdered in

Istanbul.  The parents believed this to be politically inspired.

However, the British immigration authorities considered, after

inquiries were made, that this was probably a purely criminal matter.

        In 1972 the request of the applicants' parents for further

leave to remain was refused.  For fear of what would await them if

returned to Cyprus the parents resolved to remain in the United

Kingdom unlawfully.  In an attempt to regularise their immigration

status in 1974 they were arrested and subsequently convicted of

overstaying.  Deportation orders against them were issued on

20 October 1974, but not implemented immediately because of the

unsettled situation in Cyprus at that time.  Representations were made

on the couple's behalf by three Members of Parliament between 1974 and

1976.  The applicants' father has told the British immigration

authorities of his fear of persecution if returned to Cyprus, not only

because of his brother-in-law's murder, but also because of his own

desertion from the Turkish Fighters' Army.  Apart from the fact that

the British immigration authorities considered it unlikely that the

killing of the brother-in-law had been politically motivated, their

enquiries also revealed that, if a person deserted before serving two

years, the only action taken would be re-conscription to complete the

remaining period of service.  As the applicants' father has served for

much longer than two years, it was not thought that he had anything to

fear on that account.

        On learning that the deportation orders were to be implemented

against them, the applicants' parents absconded, remaining untraced

until August 1977.  They were detained and deported to Northern Cyprus

on 14 September 1977, accompanied by the first applicant.

        The applicants' parents were unable to find accommodation or

employment in Northern Cyprus.  They stayed with relations on a

temporary rotating basis.  It is claimed that the applicants' father

was detained for about one week, during which he was interrogated and

beaten.  He was allegedly accused of passing information to the Greek

Cypriot authorities during his former employment.

        The first applicant apparently found the situation in Northern

Cyprus extremely unsettling.  Apart from the lack of family home he

was unable to speak Turkish or to establish links with his new

environment.  He showed signs of withdrawal and disturbance.

        In 1978 the applicants' mother became pregnant.  It seems that

in November 1978 the applicants' parents obtained passports under

false names and travelled to the United Kingdom where they were given

leave to enter as visitors.  The applicants' father informed the

immigration authorities that he was there on business as a citrus

fruit exporter.  They refurbished a house which they had bought prior

to deportation and let it before returning to Cyprus on 18 December 1978.

On 14 February 1979 the applicants' mother, under the false name,

returned to the United Kingdom for a month for medical treatment.  On

4 June 1979 she again returned on false papers for medical treatment and

gave birth to the second applicant in July, when the applicants'

father also entered the United Kingdom under a false name and claimed

to be on a business visit to buy cosmetics for a shop in Nicosia.  The

couple then overstayed without a trace.  Notice of intention to make

deportation orders against the applicants under their assumed name was

sent to the Cyprus High Commission on 18 October 1983.

        In November 1983 the applicants' parents were arrested and

declared illegal entrants.  In March 1984 a third child, a daughter,

was born to the couple.

        In reply to representations by a Member of Parliament, the

Secretary of State stated in a letter of 11 January 1984 as follows:

        "Mr. and Mrs.  L. have, between them, entered the United

        Kingdom illegally in breach of deportation orders by the use

        of passports obtained in a different name on no less than

        five occasions.  As you know, it is normal practice to remove

        illegal entrants unless there are exceptional reasons, usually

        of a compelling compassionate nature, for not so doing.

        I have carefully considered all the circumstances of Mr. and

        Mrs.  L.'s case in the light of your representations but I am

        not persuaded that there are grounds to justify allowing them

        to remain exceptionally.  Mr.  L.'s claim to remain on

        political grounds has, as I said earlier, been fully examined

        on a previous occasion and found to be without substance.

        Furthermore, the birth of children in this country to those

        here unlawfully can confer no entitlement on a parent to

        remain.  The family having enjoyed a higher standard of living

        here than they would have achieved in Cyprus (they have been

        working since 1979 without paying tax), they are naturally

        reluctant to return there now that they have been discovered.

        However all but the first 15 months of the time spent in the

        United Kingdom by Mr. and Mrs.  L. has been in breach of the

        immigration laws.  I consider that it could be manifestly

        unfair to the many people who seek to come here through the

        proper channels, but have no claim to do so, if this couple

        were allowed to stay and benefit from their contempt for the

        immigration control.  Finally there is no reason to suppose

        that the declaration of independence by the authorities in

        the north of Cyprus should directly have any bearing on this

        case.

        Arrangements for Mr. and Mrs.  L.'s removal to Cyprus as

        illegal entrants will now proceed, due account being taken of

        Mrs.  L.'s present medical condition before arrangements are

        finalised.  Their children will be given the opportunity to

        return with them, their fares being met, if necessary, from

        public funds."

        Subsequently, directions were issued by the Secretary of State

for the removal of the applicants' parents from the United Kingdom.  In

May 1984 an appeal was lodged against the directions insofar as they

concerned the destination i.e.  Ercan, Cyprus.  The appeal was

dismissed by both the Adjudicator (5 October 1984) and the Immigration

Appeal Tribunal (13 December 1984), as the applicants' parents could

not show that they had another country to go to.

        Further representations by a Member of Parliament were

rejected by the Secretary of State in a letter dated 12 November 1984.

He decided that he was unable to revoke the deportation orders against

the applicants' parents and grant indefinite leave to remain when

there was no basis in the Immigration Rules to do this and such leave

is similarly refused to many people who never even offended against

the immigration laws.  It was accepted that the first applicant, as a

British citizen, could remain in the United Kingdom for his education.

However to visit him the parents would first have to apply for

revocation of the deportation orders against them.  He could give no

assurances that such an application would be successful, although

there is a right of appeal against a refusal to revoke a deportation

order.

        Throughout 1985 further representations were made on asylum,

on humanitarian and compassionate grounds.  These representations were

also unsuccessful and culminated with the Secretary of State's letter

of 5 January 1986 in the following terms:

        "In order to qualify for the grant of asylum in the United

        Kingdom a person must show that, if he were required to leave,

        he would have to go to a country to which he is unwilling to

        go owing to a well founded fear of being persecuted for

        reasons of race, religion, nationality, membership of a

        particular social group or political opinion.  Despite

        Mr.  L.'s assertion that he is still wanted by the Turkish

        military authorities, he has admitted that apart from the

        incident which took place in 1977, neither he nor any

        member of his family subsequently experienced any difficulties

        at the hands of those authorities; indeed two of his brothers

        work for the Turkish Government.  As regards Mr.  L.'s

        assertion that his interrogators knew of his application

        for asylum and that the authorities would know of his present

        application, I am afraid that I find this difficult to accept.

        Eight years have passed since the incident which Mr.  L. has

        described and given that he was released without charge, there

        is no evidence to suggest that he would now face persecution

        if he returned to Cyprus.

        I have carefully considered Mr.  L.'s case in the light of your

        latest representations but I am not persuaded that his fears

        of returning to Cyprus are well founded.  I have also

        considered the children's position again. ...  Mr. and Mrs.  L.

        were fully aware of the possible consequences to them and

        their children by choosing to return to the United Kingdom in

        breach of the immigration laws.  While I have every sympathy

        for children involved in cases such as this, I cannot now

        accept their position as a compassionate reason for allowing

        the parents to remain here.  Arrangements will now be made to

        remove Mr. and Mrs.  L. as illegal entrants, their children

        will be given the opportunity to accompany them to Cyprus, at

        public expense if necessary."

        On 7 February 1986 the applicants' parents and sister were

removed to Northern Cyprus.  The applicants were left behind with

their maternal aunt.  The aunt is a single parent of a severely

handicapped boy.  The applicants claim that she is experiencing

increasing difficulties in looking after all of them.  If the present

arrangements break down, the applicants may find themselves in State

care.  In the meantime the applicants' parents still reside

temporarily on a rotating basis with relatives.  They are also

unemployed.  It is, therefore, not possible for the applicants to join

their parents in Cyprus.

        The applicants have submitted the psychiatric report of the

Child and Family Department of a health clinic, confirming the limited

care that the "depressed, weary and demoralised" aunt can offer the

applicants.  The clinic's consultant psychiatrist found the applicants

to be, inter alia, "British in all senses of the word" and in

desperate need of their parents' support.  However she considered that

the applicants' development would be impaired if they have to return

to Cyprus.

COMPLAINTS

        The applicants' complaint as submitted is that the deportation

of their parents to Northern Cyprus constituted a breach of Articles 8

and 13 of the Convention.

        The applicants contend that, as regards Article 8 of the

Convention, the interference with the family's rights cannot be

justified in the case of children who have the right of abode in a

particular country, who have substantial links with that country and

who are no longer of such adaptable age or disposition that it could be

reasonsable to expect them to follow their parents elsewhere (cf.

No. 8244/78, Uppal v. the United Kingdom, Dec. 2.5.79, D.R. 17 p. 149,

No. 9478/81, Dec. 8.12.81, D.R. 27 p. 243 and No. 9492/81, Family X v.

the United Kingdom, Dec. 14.7.82, D.R. 30 p. 232).

        It is submitted that in the present case, both applicants are

young children who are unable even to speak the language of the

country to which their parents have been deported, other than to an

extremely limited extent.  Both applicants are at an important stage

of their youth and development and not only require the presence and

guidance of their parents, but also the security and sense of identity

from their accustomed environments.  The situation of their parents in

Northern Cyprus is precarious and, from the point of view of the

applicants' future development, unsatisfactory.  Neither of the

applicants have any cultural or social identity with Northern Cyprus

and it is submitted on behalf of the first applicant, in particular,

that it is too late in his development for him to establish the

necessary links which will assist him through his adolescent years (as

deemed necessary in the psychiatric report).

        Furthermore, it is claimed that the applicants' education will

be very seriously affected if they follow their parents to Northern

Cyprus.  This is not necessarily because the Turkish Cypriot

educational system is inferior to the British.  Rather, it extends

from the applicants' own circumstances, particularly in the case of

the first applicant, his age and the fact that he is unable to speak

much Turkish.  Although there is one school in Northern Cyprus which

teaches in English, it is compulsory for all students (including

foreign students) to pass an annual examination in Turkish, before

they can progress to the next class.  It is extremely unlikely that

the first applicant could achieve this.  It is probable, therefore,

that his good progress in school in the United Kingdom will be

irreparably damaged and, indeed, it is to be anticipated that he will

regress.  It is contended that this important factor indicates that

the first applicant is not of a sufficiently adaptable age to follow

his parents without sustaining severe and irreparable damage to his

development.  For all these reasons, the development and fulfilment

of the applicants' personality and the forming of links with others

must necessarily be adversely affected if the applicants are required

to travel to Northern Cyprus (cf.  No. 6825/74 Dec. 18.5.76 D.R. 5

p. 86).

        The applicants submit that, in all the circumstances, it would

be unreasonable to expect them to follow their parents by reason of

their upbringing and different social and cultural background.  They

have no substantial family ties with Cyprus, except for their parents.

Northern Cyprus is an occupied territory beyond the diplomatic

protection of any recognised government and no right of individual

petition under Article 25 of the Convention lies from Cyprus.  Although

it is necessary to maintain even-handed immigration controls, the

applicants emphasise the particular circumstances of their case, its

negligible impact on immigration controls and its rarity, given the

impossibility nowadays for children of foreign parents to acquire

British nationality by virtue of their birth in the United Kingdom.

        The applicants thus conclude that the interference with their

Article 8 rights is not necessary within the meaning of Article 8

para. 2 of the Convention.

        As regards Article 13 of the Convention, the applicants claim

to have no effective remedy for their Article 8 claims, the appeal

procedures only being available to the person to be deported.  Their

only remedy was by way of representations through a Member of

Parliament to the Secretary of State.  This could not be deemed to be

a satisfactory remedy for the purposes of Article 13.

THE LAW

1.      The applicants' principal complaint is that the deportation of

their parents to Northern Cyprus constituted a breach of Article 8

(Art. 8) of the Convention, the relevant part of which provides as

follows:

        "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."

        Whilst the Convention does not guarantee a right, as such, to

enter or remain in a particular country, the Commission has constantly

held that the exclusion of a person from a country where his close

relatives reside may raise an issue under Article 8 (Art. 8) of the

Convention (e.g.  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).

        In the present case, the Commission first notes that the

applicants' British nationality is exclusively based on the fact that

they were born in the United Kingdom.  However, this fact alone cannot

confer rights of abode in that country upon the parents, particularly

when, as in the case of the second applicant, the birth occurred

whilst the parents had no right to reside in the United Kingdom.

        It is a striking feature in the present case that the parents

have repeatedly violated British immigration laws by entering the

United Kingdom illegally and by staying there without any right of

residence.

        The Commission notes that the parents have themselves created

the present situation by leaving the children behind in the United

Kingdom, where the parents had no right to stay but where they

apparently found the economic and educational opportunities for their

children to be more favourable than in Northern Cyprus.  There would

have been no obstacle for the parents to take the children with them

back to Northern Cyprus, while the children were younger and could

more easily have adapted themselves to life there.

        Thus, while the Commission considers that the deportation of

the applicants' parents constitutes an interference with the

applicants' right to respect for their private and family life under

Article 8 para. 1 (Art. 8-1) of the Convention, the Commission must, in

considering whether that interference was justified under Article 8

para. 2 (Art. 8-2), attach significant weight to the special circumstances

indicated above.  The Commission emphasises the close connection

between the policy of immigration control and considerations

pertaining to public order and finds that these considerations should

be given special weight in a case like the present one, where the

applicants' parents have repeatedly taken measures which breached or

circumvented immigration rules, and where they must to a large extent

be held to be responsible for their present separation from their

children.  In such circumstances, the Commission finds it compatible

with Article 8 (Art. 8) to expect the children of unlawful overstayers to

follow the parents, even if those children have acquired theoretical

rights of abode in the deporting country.

        The Commission is therefore of the opinion that the

interference with the applicants' right to respect for their private

and family life, which was in accordance with British immigration law,

was justified as being necessary in a democratic society "for the

prevention of disorder" under Article 8 para. 2 (Art. 8-2).

        Accordingly, this aspect of the application must be rejected

as being manifestly ill-founded within the meaning of Article 27

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

2.      The applicants have also complained that they have no

effective remedies at their disposal for their Article 8 (Art. 8) complaint.

        Article 13 (Art. 13) of the Convention provides as follows:

        "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 present application is brought by children whose interests

must be ensured to a large extent by their parents, except where those

interests conflict.  However, in this case the applicants did not have

interests which were in any way contrary to those of their parents.

The parents themselves have had remedies at their disposal which could

deal with the substantive basis of the applicants' private and family

life complaint.  The applicants' parents had the possibility of

applying for regular leave of entry, of applying for an extension of

that leave, of appealing to an Adjudicator and Immigration Appeal

Tribunal against any refusal of leave, of challenging and appealing

before the criminal courts the charges of overstaying, of appealing

against the designated place of deportation, of applying for the

revocation of the deportation orders and of appealing to an

Adjudicator and Immigration Appeal Tribunal against a refusal to

revoke those orders.  The parents were free to plead their childrens'

position as a compassionate factor to be taken into account by the

various immigration or judicial authorities.

        Thus, although these procedures were not available to the

applicants themselves, they were nevertheless vital to the essentials

of their Article 8 (Art. 8) complaint.  The Commission finds, therefore, that

adequate remedies were at the disposal of the applicants' family,

remedies which satisfy the requirements of Article 13 (Art. 13) of the

Convention.  In these circumstances the Commission concludes that this

aspect of the case is also manifestly ill-founded within the meaning

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

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission                President of the Commission

     (H.C. KRÜGER)                               (C.A. NØRGAARD)