Lexploria

The European Commission of Human Rights sitting in private on 5 March

1986 the following members being present:

MM. C. A. NØRGAARD, President

G. SPERDUTI

J. A. FROWEIN

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

Mr. H. C. KRÜGER Secretary to the Commission

Having regard to Art. 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (art. 25);

Having regard to the application introduced on 28 November 1984 by

A.M. and A.M. against the United Kingdom

and registered on 4 December 1984 under file N° 11273/84;

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 first applicant is a Cypriot citizen of Turkish origin born in

1954 and resident in London. The second applicant is his sister, a

Turkish Cypriot, born in 1949 and resident in Essex.

They are represented before the Commission by Messrs Rose and Birn,

Solicitors, London.

The facts according to the applicants and the documents submitted by

them may be summarised as follows:

The first applicant went to the United Kingdom as a visitor for one

month in 1973 and remained unlawfully. He married a British citizen

in 1976 and applied for leave to remain, which was refused in May

1977. Temporary, exceptional leave was then granted and extended

until June 1980. The marriage broke down, but the applicant remained

unlawfully in the country. He was thus about three years lawfully in

the United Kingdom, the rest of the time his stay has been, and still

is, unlawful. In November 1983 the Secretary of State decided to

deport the first applicant. Part of the latter's claim to remain was

based on the tragic circumstances of his sister:

The second applicant is lawfully settled in the United Kingdom, but

her husband has been compulsorily detained in a mental hospital since

1976 and his chances of recovery are remote. She has two children

born in 1970 and 1972 respectively. The eldest had a serious car

accident in 1980 from which she has largely recovered, although the

multiple injuries and brain damage suffered have left her in need of

continuous treatment, for example, for possible epilepsy. The other

child is not very healthy and needs medical attention every now and

then.

The second applicant claims that she cannot speak English. She

attended a Turkish primary school in Cyprus and when she arrived in

the United Kingdom she hardly had any contact outside her husband's

family. Therefore she never picked up any English and does not speak

English at all. It is also claimed that the first applicant provides

great assistance to her, both financially and emotionally. He gives

her £30 to £40 cash per week. She is thus dependent on him.

The position of the Secretary of State is that this dependency is

unsubstantiated. The second applicant lives in a three bedroom

council flat and receives welfare benefits and is able to cope; the

health of her husband and children are cared for by the State. At the

material time the first applicant was unable to provide any evidence

of regular financial assistance to her.

On appeal to an Adjudicator on 15 August 1984 consideration was given

to the first applicant's circumstances. It was noted that he would

not find the return to Cyprus easy, having to go to the North although

originating from the South. His marriage had been genuine but had

broken down over four years ago. He has a good job and good character

record. Then there was the plight of his sister. The Adjudicator

commented that the first applicant had been unwise in not

asking the immigration authorities from the start for permission to

stay and look after her. (The first applicant comments that he was

unaware of immigration laws and therefore did not approach the

immigration authorities earlier.) The Adjudicator accepted that he

was "a financial support and of personal assistance" to her. Against

this was his "remarkable disregard for the Regulations from the

outset", little of his long stay in breach of those Regulations being

to his credit. In the circumstances it was considered that the public

interest in his deportation, based on his defiance of immigration

controls, outweighed the compassionate circumstances of the sister and

her family.

This decision was upheld by the Immigration Appeal Tribunal on 18

September 1984.

The Government informed the Commission on 4 February 1985 that, in

view of the Ajudicator and Tribunal determinations, they had decided

to serve a deportation order on the first applicant and effect his

removal to Cyprus.

On 27 March 1985 the applicants' representatives informed the

Commission that the first applicant had married a British citizen on

24 January 1985.

COMPLAINTS

The applicants complain that the decision to deport the first

applicant constitutes a breach of their right to respect for family

life ensured by Art 8 of the Convention (art. 8). It is submitted

that the second applicant and her family are emotionally, financially

and physically dependent on the first applicant. Furthermore the

first applicant cannot return to a part of Cyprus where he has no

roots. Reliance is placed on the Commission's decisions in such cases

as Uppal and Fernandes both against the United Kingdom (Applications

N°s 8244/78 and 9123/80 respectively).

Discrimination in breach of Art 14 (art. 14), read in conjunction with

Art 8 (art. 8), is also alleged on the basis of the first applicant's

race, national or social origin.

The applicants contend that no provision of Art 8 (2) (art. 8-2)

justifies the interference with their family life.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 November 1984 and registered on 4

December 1984.

After a preliminary examination of the case by a Rapporteur, the

Commission decided on 10 December 1984 to seek further information

from the applicants about their case, pursuant to Rule 42 (2)(a) of

the Rules of Procedure. At the same time the Secretary to the

Commission informed the Government of the introduction of the

application, pursuant to Rule 41 of the Commission's Rules of

Procedure.

The applicants submitted certain information on 21 January 1985, which

information has been included in THE FACTS above. On 4 February 1985

the Government informed the Commission of their intention to proceed

with the deportation of the first applicant.

The application was brought to the notice of the Government under

Rule 42 (2) (b) of the Commission's Rules of Procedure on

11 March 1985, following which extensions of the time limit for

submission of observations on the admissibility and merits of the

application were granted on 10 June 1985 and 5 August 1985.

On 23 August 1985 the Government informed the Commission that the

Government had reconsidered the case in the light of the first

applicant's marriage to a British citizen and stated that the first

applicant would therefore be permitted to stay in the United Kingdom,

initially for twelve months and thereafter indefinitely as the husband

of a British citizen. The deportation order against the first

applicant had been revoked on 30 July 1985.

The applicants' representatives on 9 December 1985 stated that they

did not wish to pursue the case.

FINDING OF THE COMMISSION

The Commission has found that there are no reasons of a general

character affecting the observance of the Convention which require

further examination of the application. Accordingly, the Commission

accedes to the applicants' request, made through their

representatives, to proceed no further with the case.

For this reason, the Commission

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

Menu

M. AND M. v. THE UNITED KINGDOM

M. AND M. v. THE UNITED KINGDOM

LEXI