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C. NG v. THE UNITED KINGDOM

Doc ref: 12790/87 • ECHR ID: 001-489

Document date: July 13, 1987

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C. NG v. THE UNITED KINGDOM

Doc ref: 12790/87 • ECHR ID: 001-489

Document date: July 13, 1987

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 12790/87

by Cyril NG

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. 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 12 January 1987

by Cyril NG against the United Kingdom and registered on 16 March 1987

under file No. 12790/87;

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 applicant is a British Overseas Citizen, born in Hong

Kong in 1957 and resident in Liverpool. He is represented before the

Commission by Messrs. A.D. Abrahamson & Co., Solicitors, Liverpool.

The facts as submitted by the applicant may be summarised as

follows: -

The applicant was granted a student's visa to enter the United

Kingdom in 1977; this form of permit was extended until April 1981. In

1980 he began cohabiting with a citizen of the United Kingdom. They

married on 8 April 1983 and had two children, born in 1982 and 1986

respectively. On 8 September 1983 the applicant was granted a year's

leave to remain in the United Kingdom on the basis of the marriage.

The day before his leave expired he made telephone enquiries about its

renewal and was allegedly assured that the Home Office would agree to

accept his renewal application as being made on 31 August 1984.

However he did not make his application until 15 April 1985.

The applicant's wife commenced divorce proceedings against him

on 12 November 1984 but withdrew them. She recommenced these

proceedings on 15 December 1986 and they are still pending.

On 17 October 1986 the Secretary of State refused the

applicant's renewal of leave in the following terms: -

"(Your) solicitors ... have applied on your behalf for

leave to remain in the United Kingdom for employment with

Mrs. H.C.M., as Restaurant Manager, but the Department of

Employment has not approved your proposed employment. They

have also applied on your behalf for leave to remain on the

basis of your marriage to a British citizen, but the Secretary

of State is not satisfied that you and your wife intend to

live together permanently as husband and wife nor that the

marriage has not been terminated."

As the applicant had applied for renewal of leave on

15 April 1985, after his previous leave had expired, he had no right

of appeal against the Secretary of State's decision.

On 13 February 1987 (apparently because of the wife's mental

condition) the Liverpool County Court granted the applicant interim

care and custody of the two children, with access by the wife and

subject to a supervision order, requiring the supervision of the

children's welfare by a social worker of the applicant's local

authority.

On 24 June 1987 the Secretary of State decided that, in view

of the applicant's care and custody of the children, the applicant was

to be granted an extension of leave for 12 months, after which his

position will be reviewed in the light of all circumstances obtaining

then.

COMPLAINTS

The applicant originally complained to the Commission of a

violation of Article 8 of the Convention for if he were to be expelled

from the United Kingdom he would be deprived of contacts with his

children because it would be unlikely that he would be allowed to

remove them from the United Kingdom courts' jurisdiction. If he were

allowed to take them with him to Hong Kong his wife would be deprived

of contact with the children.

The applicant complained of sexual discrimination in the

operation of paragraphs 124 and 126 (f) of the Statement of Changes

in Immigration Rules HC 169, to the prejudice of men, contrary to

Article 14 of the Convention read in conjunction with Article 8.

The applicant also invoked Article 14 read in conjunction

with Article 12 of the Convention.

He does not consider that the grant of leave to remain on

24 June 1987 affects the validity of his application.

THE LAW

The applicant has complained of proposals by the Secretary of

State in October 1986 to deport him from the United Kingdom, even

though this would probably have deprived him of contacts with his

children who would remain there.

He invoked Article 8 (Art. 8) of the Convention which ensures the right

to respect for family life, subject to certain limited exceptions, and Articles

14 and 12 (Art. 12, 14) of the Convention, which guarantee respectively freedom

from discrimination in the securement of Convention rights and freedoms, and

the right to marry and found a family.

However, the Commission notes that the Secretary of State has

reviewed his earlier decision in the light of the Liverpool County

Court's decision of 13 Februry 1987 to grant the applicant care and

custody of his two children. The applicant has thus been granted

leave to remain for a reviewable period and, for the time being, his

family life is not in jeopardy. The Commission further observes that

the original decision to deport the applicant did not have any

concrete repercussions on the applicant's family life i.e. it did not

in fact result in a separation of the family. In these circumstances,

the Commission concludes that the factual basis of the applicant's

complaint has been resolved and that he can no longer claim to be a

victim of a violation of the Convention, within the meaning of Article

25 (Art. 25).

It follows that the application must be rejected as being

manifestly ill-founded, pursuant to 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)

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