AS TO THE ADMISSIBILITY OF
Application No. 33185/96
by Olufunke AYOOLA
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 23 October 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 13 June 1996 by
Olufunke AYOOLA against the United Kingdom and registered on
25 September 1996 under file No. 33185/96;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
13 March 1997 and the observations in reply submitted by the
applicant on 9 July 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of Nigeria. She was born in 1961, and
is represented before the Commission by Ms H. Tyrrell, Solicitor, of
North Kensington Law Centre, London. The facts of the application, as
submitted by the parties, may be summarised as follows.
The applicant's mother and two brothers are settled and resident
in the UK. The applicant first arrived in the United Kingdom in August
1977. She was given leave to remain, initially as a visitor and later
as a student. She completed her studies and returned to Nigeria in
September 1983, where she obtained employment.
The applicant returned to the United Kingdom on a visit from
October to December 1983, and on three further short visits between
then and July 1988.
Between 1986 and 1987 she contracted typhoid fever and suffered
in a car crash. Traumatised by these injuries she also suffered long
term psychological difficulties.
In 1988 the applicant's brother invited the applicant for a
holiday. In July 1988 she was granted leave to enter as a visitor for
6 months. Since then she has been trying to remain in the United
Kingdom and was able to do so as a student until 22 October 1991.
An application for indefinite leave to remain was refused on
20 September 1991. The applicant's appeal against this decision was
dismissed by an adjudicator on 2 October 1992.
A further application for indefinite leave to remain on
compassionate grounds was refused on 20 September 1993 as the applicant
had not submitted evidence to support the application for leave. A
notice to deport was served on 21 April 1994. In dismissing an appeal
against the notice on 15 December 1994, the adjudicator noted that the
applicant had recovered physically from the effects of the typhoid
fever, but was still psychologically upset and depressed. She also
noted the applicant's emotional ties with her mother and two brothers,
and that she was well enough to attend Bible College and to undertake
computer studies. She concluded: "Weighing up the evidence, it is only
that the bulk of the family are in the United Kingdom which persuades
me to recommend to the Secretary of State that he should look
sympathetically at the [applicant's] case, and allow her stay."
A deportation order was made against the applicant on 12 July
1995. The applicant applied for judicial review of the deportation
order. In her application she referred, inter alia, to an opinion of
the Department of Health that appropriate medical treatment would be
available in Nigeria. She stated that that opinion was "open to
serious challenge", as in fact the medical facilities in Nigeria are
woefully inadequate, especially for a person with very little means.
The application was refused by the High Court on 16 January 1996. The
judge stated that Parliament had said that it was for the Secretary of
State to decide such matters, and not judges. The judge's task,
notwithstanding that the applicant had a compelling case in many ways,
was to determine whether no reasonable Secretary of State could have
reached the decision. He was unable so to conclude, but added that he
did not "make [his] decision with any great enthusiasm". He concluded
"... it does seem to me that everything has been considered and
everything that could possible be urged upon the Secretary of State has
been put forward. In the end one has to apply the law as it is and I
must accordingly refuse leave."
On 29 May 1996 removal directions to Nigeria were issued. Those
directions have not, to date, been executed.
COMPLAINTS
The applicant claims that if deported, she will lose contact with
close family members. She alleges violation of Article 8 of the
Convention.
The applicant underlines that she is highly qualified (she has
a first class honours degree in chemistry). She occupies her time with
bible and computer studies. She suffers from anxiety and depression,
and requires intermittent surgery for a cleft palate. Her mother and
three older brothers have indefinite leave to remain in the United
Kingdom; the applicant and her mother, who live very near to each
other, see each other at least once a week and speak on the telephone
every other day. The applicant sees her three brothers at least once
a week. She also has eight nieces and nephews in the United Kingdom
to whom she is very close.
The applicant claims that she is especially dependent on her
family because of her history of anxiety and depression, as is
supported by psychiatric evidence. The applicant's connection with
Nigeria is weak - although she has a father and brother there, she is
not close to them. After 14 years in the United Kingdom, she feels
that it is her home. Separation from her mother and brothers in the
United Kingdom would cause enormous distress.
The applicant contends that interference with her privacy and
family life cannot be justified as she did not enter the country
illegally, has no criminal record, and has academic qualifications
which will make it possible for her to support herself. She has not
received state welfare benefits. The applicant considers that her
mother cannot be expected to follow her to Nigeria because of the
health problems for which she was given leave to remain in the United
Kingdom, and her three brothers all have academic careers and families
in the United Kingdom.
The applicant has presented a psychiatric report on her condition
which concludes that she is a vulnerable individual, who can be pushed
into disabling psychiatric illness by adverse experiences. The support
of her family could help her to consolidate the improvements which have
been registered over the years.
During the applicant's stay in the UK she has also undergone four
operations in order to repair cleft lip and palate, and further
surgical intervention may be required. The applicant claims that
adequate medical treatment will not be available in Nigeria if she is
returned.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 13 June 1996 and registered on
25 September 1996.
On 27 November 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 13 March
1997, after an extension of the time-limit fixed for that purpose. The
applicant's observations in reply were submitted on 9 July 1997, after
the expiry of the time-limit.
On 28 May 1997 the Commission granted the applicant legal aid.
THE LAW
The applicant complains that the deportation order and removal
directions issued to her constitute an unjustified interference with
her private and family life within the meaning of the Article 8
(Art. 8) of the Convention. Article 8 (Art. 8) of the Convention
provides as follows:
"1. Everyone has the right to respect for his private and
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 ... the economic well-being of the country, ... for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Government note that the applicant did not renew her
application for leave for judicial review after the refusal of
16 January 1996. They consider that, to the extent that she claims
that there was no evidential basis for the Secretary of State's view
that she could lead an independent life in Nigeria, that claim was in
essence a claim that the Secretary of State's view was irrational.
Such a claim could and should have been pursued before the Court of
Appeal, and to that extent the applicant has not exhausted domestic
remedies.
The Government submit that the return of the applicant to Nigeria
would not interfere with her family life because she does not, in fact,
enjoy family life within the meaning of Article 8 (Art. 8): they point
out that while there is a family relationship between the applicant and
her mother and brothers, the central feature of family life is that
people live together as a family. In the present case, there is no
evidence that the applicant is financially dependent on her mother (or
vice versa), and they do not live together. They refer to the case of
X and Y v. the United Kingdom (No. 52691/71, Dec. 8.2.72, D.R. 39, p.
104).
In any event, even if the applicant does enjoy family life with
her mother, the Government submit that its extent and quality are such
that any interference is slight: the applicant could remain in contact
by telephone and post with her mother, in much the same way as she is
at the moment. There could also be visits. Accordingly, the
Government see any limited interference as justified for the protection
of the economic well-being of the country, in particular the integrity
of its immigration system. In this connection, they point out that
although the members of the applicant's family are settled in the
United Kingdom, with indefinite leave to remain, none of the time spent
by the applicant in the country counted as qualifying time which would
permit her, under the Immigration Rules, to settle, too. As to the
relationship between the applicant and her brothers, the Government
point out that the amount of contact is not very different from the
contact that many friends have with each other, and does not fall
within the concept of family life. Again, the Government consider that
any interference is slight and justified under Article 8 para. 2
(Art. 8-2).
As to the exhaustion of domestic remedies, the applicant notes
that she was unable to secure legal aid for a renewed application to
the Court of Appeal, and she did not have the means to pay for one
privately.
On the merits, the applicant contends that the existence of
"family life" cannot depend on whether the members of the family live
together, and points out that in the case of Gül (Eur. Court HR, Gül
v. Switzerland judgment of 19 February 1996, Reports 1996-I), the young
man concerned had an extensive family network in Turkey. She
underlines that she is financially substantially dependent on her UK
based family, and it would be unrealistic to expect telephone contacts
and visits to continue meaningfully if she were in Nigeria. She also
points out that her contact with her brothers must be looked at in the
context of an extended family in the Nigerian context, which is
necessarily different from the "classic" British family.
The Commission recalls that while the Convention does not
guarantee the right, as such, to enter or remain in a particular
country, the exclusion of a person from a country where his close
relatives reside may raise an issue under Article 8 (Art. 8) (see, for
example, No. 23981/94, Dec. 23.10.95, Sorabjee v. the United Kingdom
and the further case-law referred to there). However, the State's
obligations to admit to its territory aliens who are relatives of
persons resident there will vary according to the circumstances of the
case.
In the present case, the applicant states that she is very close
to her family members - her mother and brothers, who all have
indefinite leave to remain in the United Kingdom. She states that her
mother lives close to her and that they see each other "at least once
a week" and speak on the telephone every other day. She sees her
brothers also at least once a week. Further, she has eight nieces and
nephews in the United Kingdom.
It remains the case, however, that the applicant has not
submitted any details of financial dependency, and indeed she lives
separately from the other members. The Commission considers that on
the basis of her statements, it cannot be said that she is financially
dependent on her family. Moreover, she does not see any of them more
often than once a week.
The Commission notes that the applicant is an adult and educated
person. She was aged 16 when she first went to the United Kingdom, and
was aged 27 when she arrived in the country in 1988. It is thus true
that the applicant has stayed in the United Kingdom for a long period,
altogether 14 years, but she has nevertheless spent the major part of
her life - and all her youth to the age of 16 - in Nigeria. The
Commission considers that she can reasonably be expected to readapt
there, notwithstanding that readaption may not be easy.
As regards the applicant's health problems, and assuming
exhaustion of domestic remedies in this regard, the Commission notes
the opinion of the United Kingdom Department of Health that adequate
medical treatment is available for the applicant in Nigeria. The
applicant has not submitted any evidence which could indicate that this
opinion is inaccurate.
The Commission finds that there are no elements concerning
respect for family or private life which in this case outweigh the
valid considerations relating to the proper enforcement of immigration
control. It concludes that the proposed removal of the applicant does
not disclose a lack of respect for her private or family life as
guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.
It follows that the application is 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.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy