AS TO THE ADMISSIBILITY OF

                      Application No. 13078/87

                      by Emanuel FADELE, Kehinde FADELE,

                      Taiwo FADELE and Victor FADELE

                      against the United Kingdom

        The European Commission of Human Rights sitting in private

on 12 February 1990, the following members being present:

              MM. C.A. NØRGAARD, President

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  J. CAMPINOS

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  L. LOUCAIDES

             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 17 July 1987

by Emanuel FADELE, Kehinde FADELE, Taiwo FADELE and Victor FADELE

against the United Kingdom and registered on 21 July 1987 under file

No. 13078/87 ;

        Having regard to:

     -  reports provided for in Rule 40 of the Rules of Procedure

        of the Commission;

     -  the Commission's decision of 7 October 1988 to bring the

        application to the notice of the respondent Government

        and invite them to submit written observations on its

        admissibility and merits;

     -  the observations submitted by the respondent Government

        on 25 January 1989 and the observations in reply submitted

        by the applicants on 7 June 1989;

     -  the Commission's decision of 4 October 1989 to hold a

        hearing of the parties;

     -  the pre-hearing briefs of the parties submitted on

        24 January 1990;

     -  the hearing on admissibility and merits held on 12 February

        1990;

        Having deliberated;

        Decides as follows:

THE FACTS

        The first applicant is a citizen of Nigeria, born in 1950, who

at the time of lodging the application was temporarily resident in

London.  The other three applicants are his children, twins born in

1978 and a third child born in 1981 in the United Kingdom, by virtue

of which all three acquired British nationality.

        They are represented before the Commission by Ms.  Jacqueline

Bhabha of the North Islington Law Centre.

        The facts of the case, as submitted by the parties, may be

summarised as follows:

A.      The particular facts of the case

        The first applicant has a history of illegal immigration to

the United Kingdom.  According to a letter (ref.  F15 8129/5 (s)) from

the Minister of State of the Home Office to the applicants' Member of

Parliament, the first applicant initially came to the attention of the

United Kingdom immigration authorities in 1980 after he had been

arrested by the police and charged with making a false statement, for

which offence he was later fined £50.  (The first applicant points out

that by virtue of the Rehabilitation of Offenders Act his record has

been "wiped clean" and that it is unfair that he be indefinitely

tarred with this matter.)  At that time he claimed to have entered the

United Kingdom first in 1972 and lived and worked there until 1979,

when he had left using an emergency travel document issued in London.

He had returned in January 1980 and he was granted leave to enter for

one month on 16 January 1980.  Government records showed that he had

obtained this leave by falsely representing himself to be an employee

of Nigerian Airways on authorised leave, whereas the true position was

that he intended to resume studies.  (The first applicant denied

making such false representations.)  The Minister considered

representations against the decision to remove the first applicant as

an illegal entrant but he felt that the fact that the first applicant

was studying in the United Kingdom was not sufficient reason to

overlook the deception practised on the immigration officer and the

first applicant was eventually removed to Nigeria on 13 July 1981.

Although he had indicated that he would want his wife and the twins to

accompany him, and arrangements were made for their travel facilities

to be completed and their fares paid from public funds, the first

applicant in the event returned alone to Nigeria.  From Nigeria he

telephoned the family regularly and sent them messages and parcels via

visiting friends and relatives.

        Subsequent action to enforce removal of the wife (also a

Nigerian) by way of deportation following unauthorised stay was

frustrated when she moved addresses.  The first applicant then applied

for entry clearance in Lagos in September 1981 to enable him to return

for studies.  This application was refused since the entry clearance

officer was not satisfied that he intended to leave the United Kingdom

when his studies were completed and his appeal was dismissed by the

adjudicator on 20 July 1982.  Subsequently, in December 1985, when he

presented a forged Nigerian passport, he was refused entry when

seeking to visit and purchase clothes.  (The first applicant claims he

had a new passport not a forged one.)  He attempted to conceal the

presence in the United Kingdom of his wife and family, and was

detained before being removed to Lagos on 17 December 1985.  The first

applicant conceded before the Commission that his genuine intentions

in going to the United Kingdom in January 1980 and December 1985 were

to continue studies in electrical engineering and to settle in the

United Kingdom with the education and means to support his family.

        The child applicants are three brothers.  The twins lived

with, and were cared for, by both their parents from birth (25 March

1978) until 13 July 1981 when the first applicant was removed from the

United Kingdom (apart from a period between 1979 and January 1980 when

the first applicant was away from the United Kingdom).  The youngest

child was born four and a half months after the first applicant's

removal.  From April 1982 onwards they lived in a council flat on a

large London housing estate and started nursery and primary school

there.

        The facts giving rise to the application are that the

wife/mother died in a car accident in August 1986.  Two weeks later,

on 3 September 1986, the first applicant travelled to the United

Kingdom from Nigeria and sought leave to enter as a visitor in order

to care for his children and wind up his wife's affairs, including a

compensation claim arising out of her death.  The first applicant told

the immigration officer that since returning to Nigeria he had been

working on his cousin's farm without remuneration, receiving only food

and accommodation.  His cousin had paid for his ticket.

        The immigration officer considered the matter and took account

of the compassionate circumstances which had led to the journey.

However, these had to be balanced against the first applicant's

previous attempts to settle in the United Kingdom and the fact that

he had, in the past, practised deception and shown disregard for the

Immigration Rules.  The officer concluded that settlement was still

the first applicant's aim and that, in all the circumstances, the

first applicant was not genuinely seeking entry as a visitor for a

limited period.  He therefore refused him formal leave to enter.  The

first applicant was, however, granted temporary admission.

        Representations were then made by the applicants' Member of

Parliament requesting the Minister to review the decision refusing

leave to enter.  The Minister refused on 9 February 1987 in the light

of the first applicant's immigration history.  Whilst expressing

sympathy with the family's bereavement, he considered that the first

applicant did not qualify for settlement in the United Kingdom.  As

regards the other applicants' position, he noted that the first

applicant had by then spent five months in the United Kingdom and had

had the opportunity to take advice about arrangements for them.  He

considered that the first applicant had not been closely involved with

his children since 1981 and that, accordingly, the first applicant

should not be afforded exceptional treatment outside the Immigration

Rules.

        Further representations were made on the first applicant's

behalf by the North Islington Law Centre on 27 February 1987 in the

light of the family's situation at that time:  The first applicant had

resumed sole responsibility for his children, withdrawing them from

the care of a friend of his wife with whom they had been unhappy.

They had gone to live with her and her four children on 9 August 1986,

changing schools.  This arrangement broke down within three months.

On his arrival from Nigeria the first applicant found that the friend

was turning his children against him, recounting frightening stories

of life in Nigeria and alleging that he would take the children to

Nigeria by force.  As of 6 November 1986 he found an alternative

placement for the children with another of his wife's Nigerian

friends, her husband and three children, which involved another change

of school.  However this arrangement proved unsatisfactory as acute

tension arose between all the children.  On 20 March 1987 the family

were reunited in their original home and returned to their first

schools.

        The Law Centre, in their representations to the Secretary of

State, pointed out that the first applicant had been unable to make

any satisfactory permanent arrangements for the children's future care

in the United Kingdom.  He had commenced civil proceedings against the

driver of the vehicle that had killed his wife and he needed a few

more months in the United Kingdom to pursue this matter and sort out

his wife's other affairs.  The first applicant was furthermore

suffering from the shock of the bereavement and adjusting to the

renewed responsibility for his children, which responsibility he took

seriously.  As regards his lack of involvement with his children since

1981, he pointed out that he would have happily returned to the United

Kingdom earlier if he had been allowed to do so.

        The Law Centre applied for the first applicant to be allowed

to remain permanently in the United Kingdom with his children because

they only spoke English and knew little about Nigeria.  Alternatively,

the Minister was asked to extend the first applicant's temporary

admission for a few months and to give a reassurance that any future

visitor applications he might make to see his children would not be

automatically rejected because of his immigration history.

        On 3 June 1987 the Minister refused to extend the first

applicant's stay in the United Kingdom but assured him that future

visitor applications would not be automatically rejected but would be

considered on their merits in the light of all the circumstances

pertaining at the time.

        A welfare report by a senior social worker obtained on 17 June

1987 recommended that the first applicant be allowed to remain in the

United Kingdom with his children, having re-established the dependent

family link, and that it would not be in the children's interest,

given their age and the traumatic experience of their mother's death,

to have to go to Nigeria against their wishes and where their future

welfare would be uncertain.  The children's school sent a petition

with numerous signatures to the Home Office in support of the first

applicant's attempt to stay in the United Kingdom.

        The first applicant was obliged to return to Nigeria on

23 August 1987.  He was unable to pursue a compensation claim

concerning his wife's death as he was refused legal aid.  He had made

arrangements for the children to be cared for by a distant relative

and his girlfriend in another part of London, which again involved

them in a change of school.  His intention was to leave the children

in London pending the outcome of his application to the Commission

and/or the creation of some suitable arrangements for them in Nigeria.

On his return to Nigeria he was housed by a married friend in a one

room flat in Lagos.  He fell ill for some months, but telephoned the

children regularly.  They implored him to make arrangements for their

travel to Nigeria as they alleged they were being ill-treated by their

carers.  They went to Nigeria on 17 December 1987.

        However, since going to Nigeria, the family claims to have

suffered great hardship:  The four applicants are living in the family

home in the first applicant's village in Ondo State, Nigeria.  The

accommodation consists of four rooms in a compound dwelling.  This

dwelling is occupied by other members of the family in addition to the

applicants.  There is no electricity, no running water or toilet

facilities.  There are open sewers in front of the dwelling and the

compound is filthy.  The first applicant is unemployed and the

applicants all live off the first applicant's relatives.  They do not

have sufficient food: the child applicants never eat fresh meat, eggs

or bread and they complain about the diet to which they are

unaccustomed.  The child applicants do not attend any form of school

and have not done so since leaving London one and a half years ago.  On

arrival in Nigeria, they did not speak any Nigerian languages and

English language schools are beyond the family means.  They spend

their days at home.  The child applicants have suffered severe health

problems since their arrival in Nigeria.  The youngest child has twice

suffered severe bouts of malaria including convulsions requiring blood

transfusions and hospitalisation.  All three have suffered from

typhoid, upper respiratory tract infections and gastro-enteritis.  In

April 1989 the youngest child was again seriously ill.  It is feared

that they might not survive to adulthood if they are obliged to remain

in Nigeria.  This view was expressed by the children's doctor.

However, returning them to the United Kingdom would entail separation

from their father.  Moreover, given past experience, there is no

assurance that they would be properly looked after and raised in the

United Kingdom.

B.      The relevant domestic law and practice

        The Statement of Changes in Immigration Rules HC 169 provide

for visitors' entry to the United Kingdom for short periods provided

no employment is undertaken and no burden is placed on public funds.

However, the first applicant, once refused a visitor's permit, sought

leave to settle in the United Kingdom to look after his children.  The

Immigration Rules contain no provision for such cases, although the

Home Secretary has an overriding statutory discretion to grant entry

outside the Rules.  A refusal of leave to enter the United Kingdom as

a visitor may be appealed from abroad under section 13 of the

Immigration Act 1971.  However, no appeal lies from a refusal to

depart from the Immigration Rules.  The section 13 appeals are heard

by independent adjudicators and Immigration Appeal Tribunals who may

make recommendations, which, the Government state, are frequently

acted upon by the Home Secretary, even if the actual appeal is

dismissed.

COMPLAINTS

        The applicants complain that the refusal by British

immigration authorities to allow the first applicant to remain in the

United Kingdom as of August 1986 constitutes a breach of Article 8 of

the Convention (family life).

        They contend that the refusal to use ministerial discretion to

depart from the Immigration Rules was in breach of Article 8 of the

Convention, against which refusal there was no effective domestic

remedy, contrary to Article 13 of the Convention.  They also complain

that by in effect obliging the child applicants to change radically

their life style, joining their father in poor living conditions in

Nigeria, rather than allowing him to settle with them in the United

Kingdom, there was a breach of Article 3 of the Convention and further

breaches of Article 8 (home) and Article 13 of the Convention read in

conjunction with Articles 3 and 8.  The child applicants also allege

that there has been an unjustified interference with their right to

education ensured by Article 2 of Protocol No. 1 to the Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 17 July 1987 and registered

on 21 July 1987.

        With the application the applicants lodged a request that the

Commission intervene to prevent the first applicant's removal from the

United Kingdom.  On 22 July 1987 the President of the Commission

refused to indicate interim measures to the respondent Government

pursuant to Rule 36 of the Commission's Rules of Procedure.  The same

day the Secretary to the Commission informed the respondent Government

of the introduction of the application pursuant to Rule 41 of the

Rules of Procedure.

        After a preliminary examination of the case by the Rapporteur,

the Commission considered the admissibility of the application on

7 October 1988.  It decided to give notice of the application to the

respondent Government, pursuant to Rule 42 para. 2 (b) of the Rules of

Procedure, and to invite the parties to submit observations on

admissibility and merits.  The Government submitted their observations

on 25 January 1989, to which the applicants replied on 7 June 1989.

        On 4 October 1989 the Commission decided to hold a hearing

of the parties on the admissibility and merits of the case.  On

24 January 1990 both parties submitted written briefs in preparation

of the hearing which was held on 12 February 1990.  At the hearing the

applicants were represented by Mr. A. Nicol, Counsel, and Mrs. J.

Bhabha, Solicitor.  The Government were represented by their Agent,

Mr. N. Parker, Mr. J. Eadie, Counsel, Mr. S. Bramley, Home Office,

Adviser, and Miss D. Brookes, Foreign and Commonwealth Office,

Adviser.

THE LAW

1.      The applicants have complained of the refusal of British

immigration authoritees to allow the first applicant (a Nigerian) to

join the other three applicants, his children (British), in the United

Kingdom after the death of the wife/mother.  They have alleged a

breach of Article 8 (Art. 8) of the Convention (right to respect for

private and family life and home), Article 3 (Art. 3) of the Convention

(prohibition on inhuman and degrading treatment), Article 13 (Art. 13)

of the Convention (the right to a remedy for a breach of the

Convention) and Article 2 of Protocol No. 1 (P1-2) to the Convention

(the right to education).

        The applicants contended that they have complied with Article

26 (Art. 26) of the Convention (exhaustion of domestic remedies)

because there were no effective domestic remedies to pursue, the

refusal of the first applicant's visitors leave being in accordance

with the Immigration Rules and the refusal of leave to settle being a

matter of pure discretion for the Home Secretary, against which there

was no appeal.  They also contended that they have complied with the

six months' rule laid down in Article 26 (Art. 26) because, although

their complaints concerning Articles 3, 8 (home) (Art. 3, 8) and 13

(Art. 13) of the Convention and Article 2 of Protocol No. 1 (P1-2) to

the Convention were not specifically relied on in the original

application, the substance of these complaints was contained in that

document and previous correspondence.

        The applicants submitted that the refusal of the first

applicant's settlement request constituted an unjustified interference

with their family life which had been maintained (despite separations

forced on them by British immigration authorities) through telephone

and other contacts, and which had been solidly re-established after

the trauma of the wife's/mother's death.  Because of the child

applicants' total emotional and material dependence upon their father

they were in effect obliged by the settlement refusal to suffer the

additional trauma of giving up their friends, schools and the only

settled home they had ever known in the United Kingdom and of facing

great hardship living in Nigeria.  They could hardly rely on the

prospect of being visited from time to time by their father in view of

the Home Secretary's continual refusal of such leave to date.  The

family claimed that the interference with their Article 8 (Art. 8)

rights was not necessary for the prevention of disorder to enforce

immigration controls.  The family posed no actual or potential threat

of disorder.  The children were no longer of an adaptable age to cope

with the wholly inadequate health and educational environment in

Nigeria.

2.      The Government replied that the applicants had failed to

exhaust domestic remedies because the first applicant had not appealed

from Nigeria under section 13 of the Immigration Act 1971 against the

original refusal of visitors leave.  An adjudicator examining an

appeal under this provision, whilst finding that the Secretary of

State had acted in accordance with the Immigration Rules, might

nevertheless recommend that the Minister exercise his discretion in

the appellants' favour.  The Secretary of State gives careful

consideration to such recommendations and not infrequently follows

them.  Moreover, the children had not sought judicial review of the

refusal of leave on the basis of the alleged breach of Article 3

(Art. 3) of the Convention.  The Government next contended that the

applicants had failed to observe the six months' rule as regards their

complaints made under Articles 3, 8 (Art. 3, 8) (home) and 13 (Art. 13)

of the Convention and Article 2 of Protocol No. 1 (P1-2), which

provisions had not been specified in the original application.

        Even assuming the applicants could be said to have complied

with Article 26 (Art. 26) of the Convention, the Government submitted

that there had been no interference with the applicants' right to

respect for family life because the applicants now enjoy family life,

intact, in Nigeria, no choice of residence being included in the

rights guaranteed by Article 8 (Art. 8) of the Convention.

Furthermore, there was no failure to respect the applicants' family

life as the first applicant was allowed to enter the United Kingdom

and remain for nearly a year in order to wind up the family's affairs.

Even if there was an interference with the Article 8 (Art. 8) right,

it was in accordance with the law and was necessary for the legitimate

aim of enforcing immigration controls, which aim falls within the

ambit of the prevention of disorder under the second paragraph of

Article 8 (Art. 8).  In this context account must be taken of the first

applicant's immigration history and the possibility of maintaining

family ties by visits if the child applicants had remained in the

United Kingdom.  Finally, it was submitted that the applicants' other

claims under Articles 3, 8 (Art. 3, 8) (private life and home) and 13

(Art. 13) of the Convention and Article 2 of Protocol No. 1 (P1-2) were

wholly unfounded.  In particular, as regards the Article 13 (Art. 13)

claim, the possibility of appeal under section 13 of the Immigration

Act 1971 or judicial review of the decisions of the immigration

authorities constitute effective remedies for the purposes of this

Convention provision.

3.      The Commission has first examined whether the applicants have

exhausted domestic remedies as required by Article 26 (Art. 26) of the

Convention.  It notes that the essence of their complaint is that the

first applicant was not allowed to settle with the children in the

United Kingdom.  The relevant Immigration Rules contain no provision

for such cases, which are entirely a matter of the Home Secretary's

extra-statutory discretion.  No appeal lies against a refusal by the

Home Secretary to exercise his discretion in the applicants' favour.

Secondly, the double discretionary remedy of attempting to obtain a

compassionate recommendation from an adjudicator which might have

persuaded the Secretary of State to change his mind and exercise his

extra-statutory discretion in favour of the applicants' father cannot,

in the Commission's view, be considered effective.

        Lastly, the Commission notes that the Government have not

demonstrated the basis upon which the applicant children would have

had locus standi, or otherwise any prospects of success, in

challenging the Secretary of State's refusal to exercise his

extra-statutory discretion to allow their father to remain in the

United Kingdom with them, the challenge being based on arguments

relevant to Article 3 (Art. 3) of the Convention.  Accordingly, the

Commission finds that the applicants have exhausted all effective

remedies at their disposal.

4.      The Commission has next examined whether the applicants have

complied with the six months' rule laid down in Article 26 (Art. 26)

of the Convention.  It finds that the substance of the applicants'

complaints, now characterised by the applicants as alleged breaches of

Articles 3 and 8 (Art. 3, 8) (private life and home) of the Convention

and of Article 2 of Protocol No. 1 (P1-2) to the Convention, was

raised in the original application to the Commission.  In respect of

the applicants' complaints under these provisions the Commission

finds, therefore, that the applicants have satisfied Article 26

(Art. 26) of the Convention. However, insofar as the applicants have

complained of a breach of Article 13 (Art. 13) of the Convention, the

Commission finds that the substance of this complaint was not apparent

from the original application. This complaint was not specified until

the applicants submitted their observations on admissibility and

merits on 7 June 1989, whereas the final ministerial decision was

taken more than six months before on 3 June 1987, with the application

to the Commission being lodged on 17 July 1987.  The Commission

considers this complaint to be of a qualitatively different nature

from the aforementioned Convention complaints which may reasonably be

said to flow from the description of the facts originally alleged by

the applicants in the present case. Accordingly, the Commission

concludes that it is unable to deal with the applicants' complaint

under Article 13 (Art. 13) of the Convention as they have failed to

respect the six months' rule laid down in Article 26 (Art. 26) of the

Convention.  This part of the application must therefore be rejected

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

5.      As regards the remainder of the application, the Commission

considers, in the light of the parties' submissions, that the case

raises complex issues of law and fact under Articles 3 and 8

(Art. 3, 8) (private and family life and home) of the Convention and

Article 2 of Protocol No. 1 (P1-2), the determination of which should

depend on an examination of the merits.  The Commission concludes,

therefore, that the remainder of the application is not manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention, and that no other grounds for declaring this part of the

case inadmissible have been established.

        For these reasons, the Commission

    -   DECLARES INADMISSIBLE the applicants' complaint

        under Article 13 (Art. 13) of the Convention;

    -   DECLARES ADMISSIBLE the remainder of the application

        without prejudging its merits.

   Secretary to the Commission       President of the Commission

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