AS TO THE ADMISSIBILITY OF
Application No. 26373/95
by Mohamoud ASKAR
against the United Kingdom
The European Commission of Human Rights sitting in private on
16 October 1995, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
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 28 November 1994
by Mohamoud ASKAR against the United Kingdom and registered on
1 February 1995 under file No. 26373/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Somali citizen born in 1965 and currently
resident in Southall. He is represented before the Commission by Ms.
Sonali Ghelani, a solicitor practising in London.
The facts as submitted by the applicant may be summarised as
follows.
The applicant, born in 1965 in Northern Somalia, is a member of
the Issaq tribe.
At the time of the outbreak of civil war in May 1988, the
applicant worked as a civil servant in Hargeisa where he lived with his
second wife, his sister and two half brothers. His first wife and their
children whom he supported and visited on a regular basis lived nearby.
On the outbreak of the war, the applicant, as happened with many
civil servants and soldiers of the Issaq tribe, was arrested and
detained, first in Hageisa and then in a special security detention
centre in Godka. He was released after eight months' detention in
January 1989.
During his detention, his first wife and their children, his
sisters and half-brothers and his second wife fled to Ethiopian refugee
camps. On the applicant's release, he tried to join his family but was
prevented from doing so. His second wife who had contracted malaria and
jaundice travelled to Mogadishu for treatment where she succeeded in
rejoining the applicant.
In December 1989, the applicant and his second wife left Somalia
and on arrival in the United Kingdom on 3 December 1989, applied for
asylum.
On 28 February 1990, the Home Office notified the applicant that
he had been recognised as a refugee pursuant to the 1951 United Nations
Convention relating to the status of refugees and its 1967 protocol.
On 19 June 1990, the applicant's father died in Germany. He had
been a high ranking police officer in Somalia and his flight to Germany
was regarded as a defection by the Somali authorities. This had
repercussions on the family remaining in Somalia. One of the
applicant's brothers was detained and killed in prison.
By letter dated 15 July 1990, the applicant applied to the Home
Office Refugee and Special Case Unit for reunion with the members of
his family living in Ethiopian refugee camps and Mogadishu. These
included his mother, two sisters, seven brothers, his two sons and his
daughter.
In December 1991, a report reached the applicant, now head of his
family, that the members of the family previously in Somalia had
escaped to the Harshin refugee camp in Ethiopia.
On 3 January 1992, the applicant requested the assistance of his
Member of Parliament in his application for family reunion.
On 27 January 1992, in its first response to his request, the
Home Office requested further information. Following a second request
for information from the Home Office, the applicant's request was
refused by letter dated 4 November 1992.
On 1 February 1993, the applicant appealed to the adjudicator on
behalf of his family. His appeal has not yet been heard. It is being
held in abeyance pending the outcome of another case, Abdi, before the
Court of Appeal (see Relevant domestic law and practice below).
The applicant has heard since that his mother, one of his
brothers and two of his children have been seriously ill. He is
extremely worried about the high mortality rate in the Ethiopian
refugee camp. As a result of his own experiences and the worry in
respect of his family, the applicant, according to a psychological
report dated 20 November 1993, suffers from a clinical depressive
disorder and post traumatic stress disorder, with symptoms, inter alia,
of insomnia, guilt, hypervigilance and hyperventilation syndrome.
Meanwhile, in June 1993, four of the applicant's brothers
(sisters) aged 16, 14, 13, 11 who had fled to Germany with their father
rejoined the applicant in the United Kingdom where they were granted
refugee status.
Relevant domestic law and practice
The policy letter of 17 May 1990 from the Home Office set out the
following practice. As a general rule, applications for foreign
nationals to come to the United Kingdom must be made at a United
Kingdom diplomatic post overseas. However as a concession to the fact
that many of those displaced by the war in Northern Somalia were unable
to make such an application, in September 1988 the Ministers agreed to
introduce a concession whereby the United Kingdom sponsor could present
the case to the Home Office so that the visa applications could be
determined before the applicants set out on the difficult and hazardous
journey to the nearest British Embassy. This concession was to be
restricted to relatives living in refugee camps in Ethiopia and
Djibouti.
The policy letter took into account not only the immediate
members of the sponsor's family (ie. spouse and minor children) but
stated that, given the nature of the Somali family, there was the
possibility of flexibility, and exceptionally there would be
recognition of other relatives where he or she was a dependent member
of the refugee's family before the refugee came to the United Kingdom.
A review of this concessionary policy took place and it was
withdrawn with effect from 27 January 1994, a public statement being
made to this effect in the House of Commons on 25 January 1994. It did
not affect cases which had been raised with the Home Office prior to
that date. It was explained that the concession was withdrawn since
Ethiopia where most of the displaced Somalis were to be found had been
at peace for nearly three years and the evidence was that Somali
nationals could move about safely and it was open to applicants to seek
entry clearance at posts in Addis Ababa, Nairobi or Djibouti in the
normal way.
The Home Office has taken the view that decisions refusing to
apply the concessionary facility to an applicant are not appealable to
the Immigration Adjudicator and the Immigration Appeal Tribunal.
Decisions however have been made in cases by Adjudicators and the
Tribunal that such decisions are subject under the relevant legislation
and rules to a right of appeal. The case of Suleiman Abdi which
concerns the issue is pending before the Court of Appeal. It was
anticipated that the case would be heard on 25 June 1995.
COMPLAINTS
The applicant complains of the interference with his right to
respect for his family life. He refers to the gravity of the plight of
Somali refugees in Ethiopia and the grave risks which he would face as
a recognised refugee if he sought re-unification with his family by
travelling to Ethiopia. He emphasises the urgency of the situation and
the unacceptable delay in dealing with his application, which is
disproportionate and is in itself an unjustifiable interference under
Article 8 of the Convention.
The applicant submits that as a matter of English law the case
involves rights under domestic law which, since they concern family
life, are "civil" in character. The delay in determining the dispute
as to his rights discloses a violation of Article 6 para. 1 of the
Convention.
Alternatively, the applicant submits that there is a violation
of Article 13 of the Convention.
THE LAW
1. The applicant complains that the delay in determination of his
application for the re-unification of his family in the United Kingdom
interferes with his right to respect for his family life contrary to
Article 8 (Art. 8) of the Convention.
Article 8 (Art. 8) of the Convention provides as relevant:
"1. Everyone has the right to respect for his ... 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."
The Commission recalls that there is no right for an alien to
enter or reside in a particular country as such guaranteed by the
Convention. However exclusion of a person from a country in which his
close relatives live could involve a violation of Article 8 (Art. 8)
of the Convention (see eg. No. 12411/86, Dec. 4.3.87, D.R. 51, p. 245).
The Commission notes that the applicant's pending application
before the United Kingdom authorities concerns his mother, two sisters,
seven brothers and three of his children. Whether "family life" exists
between relatives, particularly those of adult years, for the purposes
of Article 8 (Art. 8) depends on the closeness of ties and the
existence of elements of dependency, whether financial or emotional
(see eg. No. 9492/81, Dec. 14.7.82, D.R. 30, p. 232 and 10375/83, Dec.
10.12.83, D.R. 40, p. 196). The Commission finds it unnecessary to
determine whether the relationships of the applicant with the various
relatives concerned in the application fall in each case within the
protection offered by Article 8 (Art. 8) of the Convention as the
application must in any case be rejected for the reasons set out below.
The applicant complains of the delay in the proceedings
concerning his application to the Home Office for permission for his
relatives to join him in the United Kingdom. He argues that having
regard to the grave situation in which his relatives are living the
matter should be dealt with urgently. The delay, from his first request
of 15 July 1990 to date, is, he submits, excessive and disproportionate
to such a degree as to disclose a violation of his right to respect
for his family life.
The Commission recalls that delay in proceedings concerning
matters of "family life" may raise issues under Article 8 (Art. 8) of
the Convention. In the case of H. v. the United Kingdom, the Court
found a violation of Article 8 (Art. 8) in respect of proceedings
concerning the applicant mother's access to her child which lasted two
years and seven months. However, the Court had regard in reaching that
conclusion to the fact that the proceedings concerned a fundamental
element of family life (whether the mother would be allowed to see her
child again) and that they had a quality of irreversibility, lying
within an area in which delay might lead to a de facto determination
of the matter, whereas an effective respect for the mother's family
life required that the question be determined solely in the light of
all relevant considerations and not by mere effluxion of time (Eur.
Court H.R. H. v. the United Kingdom judgment of 8 July 1987, Series A
no. 120 p. 64, paras. 89-90; W. v. the United Kingdom, judgment of
8 July 1987, Series A no. 121, p. 29, para. 65 and R. v. the United
Kingdom, judgment of 8 July 1987, Series A no. 121, p. 119, para. 70
and p. 121, para. 74).
The Commission finds that the present case is not comparable. The
subject-matter of the proceedings concerns the granting of permission
to enter the United Kingdom for members of the applicant's family, whom
the applicant has not seen for at least six years and with some of whom
the nature of his ties has not been specified beyond the fact that,
pursuant to Somali tradition, the applicant has on the death of his
father become head of the extended family group. Further, it is not
apparent that the delay in the proceedings has any prejudicial effect
on their eventual determination or that the effect of the passage of
time is such as to prevent the proper and fair examination of the
merits of the case.
Consequently, the Commission finds that on the facts of this case
the applicant's complaints fail to disclose a lack of respect for his
family life.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant complains that the excessive delay in the
proceedings is in violation of Article 6 para. 1 (Art. 6-1) of the
Convention, which provides in its first sentence:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent and
impartial tribunal established by law."
The Commission recalls its constant case-law that this provision
has no application to asylum, expulsion, deportation proceedings or the
like (cf. No. 8118/77, Omkarananda v. Switzerland, Dec. 19.3.81,
D.R. 25, p. 105, and No. 9990/92, Bozano v. France, Dec. 15.5.84,
D.R. 39, p. 119). It follows that this part of the application must
be rejected as being incompatible ratione materiae with the provisions
of the Convention, pursuant to Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant also invokes Article 13 (Art. 13) of the
Convention, which provides that :
"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 Commission recalls however that Article 13 (Art. 13) does not
require a remedy under domestic law in respect of any alleged violation
of the Convention. It only applies if the individual can be said to
have an "arguable claim" of a violation of the Convention (Eur. Court
H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131,
p. 23, para. 52).
The Commission finds that the applicant cannot be said, in light
of its findings above, to have an "arguable claim" of a violation of
his Convention rights.
It follows that this complaint must be dismissed as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
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