THIRD SECTION

DECISION

Application no. 47061/99 by Roberto CARDOSO and Peter JOHANSEN against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 5 September 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr L. Loucaides, Sir Nicolas Bratza, Mrs H.S. Greve, Mr K. Traja, Mr M. Ugrekhelidze, judges , and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced on 23 March 1999 and registered on 25 March 1999,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant is a Brazilian national, born in 1956 and living in London. The second applicant is a British citizen, born in 1957 and living with the second applicant in London. They are represented before the Court by Ms Nuala Mole of the AIRE Centre, London.

A. The  circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first applicant has been resident in the United Kingdom since 1981. He has been in a long term stable relationship akin to marriage in the United Kingdom for 18 years since November 1981 with the second applicant. They have cohabited since December 1981 to date. The first applicant worked and paid tax and National Insurance contributions and submitted tax returns.

In November 1984, as it was not possible for homosexual couples to acquire immigration status on the basis of their relationship, the first applicant entered into a marriage of convenience with a woman in order to try and stay with the second applicant in the United Kingdom.

In 1995, the first applicant was diagnosed as suffering from HIV and in November 1996 with an AIDS defining illness. In 1996 the first applicant became too ill to work.

In 1997, the first applicant obtained a false Italian passport to visit his elderly mother in Brazil. On his return from that trip, he was stopped and his false identity discovered.

On 5 October 1998, the Secretary of State refused the first applicant leave to enter the United Kingdom and ordered that he be removed to France on the basis that the first applicant could make an application to enter from there and that this was the country from which he had entered the United Kingdom. The first applicant could not benefit from available concessions concerning homosexual relationships as, although he had lived in the United Kingdom since 1981, he was technically seeking leave to enter and not leave to remain.

The first applicant obtained medical reports in support of his attempt to stay in the United Kingdom. A report dated 9 October 1998 confirmed that the first applicant had been treated with combination therapy against HIV since May 1995 and in respect of a possible removal stated:

“In addition, severe psychological trauma would be very damaging, especially in view of his long-standing psychological problems, described in the attached correspondence. Separation from his long term partner would also be likely to affect his health, a supportive social network is of great importance in maintaining adherence to complicated drug regimes.”

A report of 15 December 1998 stated inter alia :

“ has a diagnosis of depressive illness with elements of post traumatic stress disorder. His depression has been severe with episodes of suicidality . I believe he is a vulnerable individual who is at great risk of suicide. I believe he will be placed at considerable risk if forced to return to Brazil.”

On 16 December 1998, the High Court refused leave to move for judicial review of the decision refusing the first applicant leave to enter the United Kingdom. On 24 March 1999 the Court of Appeal dismissed the first applicant’s appeal. Removal directions were due to be issued on the morning of 25 March 1999.

On 24 March 1999, following introduction of this application, the President of the Third Section applied Rule 39 of the Rules of Court requesting the Government to suspend any expulsion measures pending the proceedings before the Court. On 30 March 1999, the application was communicated to the respondent Government who were invited to submit their observations on the admissibility and merits.

By letter dated 26 July 1999, the Government informed the Court that the Immigration Service had reconsidered the first applicant’s case and found it appropriate to waive the entry clearance requirement. On 27 July 1999, the first applicant was granted leave to enter the United Kingdom.              On 7 August 2000, the applicants’ representatives accepted the offer of the Government to pay their fees and costs in the amount of GBP 11,025 in full and final settlement of their claims.

COMPLAINTS

The applicants originally complained under Article 3 of the Convention that the proposed removal of the first applicant from the United Kingdom would have a serious impact on his health and shorten his life expectancy. Furthermore,  they alleged that the separation from his long term partner, the second applicant, at this stage of the first applicant’s illness would also constitute inhuman or degrading treatment.

The applicants also complained under Article 8 of the Convention that the removal would constitute an interference with the first applicant’s right to “moral and physical integrity” and disclosed an interference with their right to respect for their private life.

THE LAW

The Court notes that the applicants have agreed to settle their claims on the basis of the first applicant receiving leave to enter the United Kingdom and on payment of a sum in respect of their legal costs and expenses. In these circumstances, it finds that the applicants no longer intend to pursue their application within the meaning of Article 37 § 1(a) of the Convention. It is satisfied that respect for human rights does not require the continued examination of the application (Article 37 § 1 in fine ).

Accordingly, the case should be struck out of the list.

For these reasons, the Court, unanimously,

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

S. Dollé J.-P. Costa Registrar President