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)