AS TO THE ADMISSIBILITY OF
Application No. 27949/95
by Aaiza and Azam CHOUDRY
against the United Kingdom
The European Commission of Human Rights sitting in private on
13 May 1996, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
G. JÖRUNDSSON
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
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
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 22 May 1995 by
Aaiza and Azam CHOUDRY against the United Kingdom and registered on
21 July 1995 under file No. 27949/95;
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
26 October 1995 and the observations in reply submitted by the
applicant on 30 October and 31 December 1995;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a British citizen born in India in 1959
and resident in Peterborough. The second applicant, the first
applicant's husband, is a Pakistani citizen born in Pakistan in 1955
and resident in Peterborough.
The applicants are represented before the Commission by Ms. Nuala
Mole of the AIRE Centre, London.
The facts as submitted by the parties may be summarised as
follows.
Particular circumstances of the case
The first applicant, born in India, has been settled in the
United Kingdom for 19 years, having arrived in 1975 aged 16 for an
arranged marriage. In 1985, she became a British citizen. The marriage
broke down after a short period and the first applicant was divorced.
She has a history of psychiatric disorders (depressive and hypomanic
illness) and suicidal tendencies and has had continuous psychiatric
treatment since 1988. This has on seven occasions required periods of
hospital admission on occasion under the compulsory powers of the
mental health legislation.
On 31 March 1994, the first applicant married the second
applicant.
The second applicant has lived in the United Kingdom for about
eight and a half years. He has lost an arm after an accident in 1967
and after another accident in 1982 his left leg was amputated. He since
has been fitted with prostheses in the United Kingdom. All the second
applicant's relatives, save his elderly parents, live in the United
Kingdom. He arrived in the United Kingdom as a visitor to stay with his
brother on or about 29 September 1985. Leave to remain as a visitor was
extended until 30 June 1986 but a further request for an extension
refused on 21 October 1986. His application for leave to remain in the
United Kingdom as a dependant of his brother was refused on 3 November
1987 on the basis of failure to produce the requested evidence of
dependence. He was given a further opportunity to establish his claim
to dependency but in light of findings that he had been living
independently in Pakistan before his arrival the renewed application
was refused on 27 April 1989. On 23 May 1991, he was served with a
notice of intention to deport him for overstaying his leave. His appeal
against this decision was dismissed by an adjudicator on 13 March 1992.
He made further representations and he was re-interviewed about his
circumstances on 17 June 1993. A deportation order was signed on 20
September 1993 and served on him on 26 March 1994.
The second applicant made an application to remain on the basis
of his marriage to the first applicant, a British citizen. This
application was refused on 24 May 1994. Further representations were
made on his behalf but on 19 May 1995, the Secretary of State informed
the applicants that he maintained his decision of refusal of entry. In
that letter, the Secretary of State stated that medical support did
exist for the first applicant in Pakistan and there was no evidence
that she would be denied access to it. He also noted that before
arriving in the United Kingdom the second applicant had lived in Mirpur
and he was not persuaded that the couple would not be able to live in
that city or that they would be obliged to live in rural Pakistan as
suggested.
The applicants applied for judicial review of the Secretary of
State's decision. Leave was refused and the renewed application for
leave was rejected by the Court of Appeal on 17 July 1995. Removal
directions were set for 27 July 1995.
By letter dated 30 October 1995, the applicants' representatives
informed the Commission that the first applicant, exercising the rights
conferred on her by European Community law, took up residence in
Ireland with the second applicant, where she continues to receive the
appropriate psychiatric supervision and her husband has the possibility
to maintain his prostheses. They state that pursuant to the applicable
Community law the second applicant will, after residing for the
relevant qualifying period in Ireland, be able to return to the United
Kingdom with the first applicant.
COMPLAINTS
The applicants invoke Articles 2, 3, 8 and 13 of the Convention.
As regards the first applicant, the applicants submit that the
medical condition of the first applicant shows that her husband's
deportation will cause her already precarious mental health to suffer
serious deterioration. There is a medical report which refers to the
risk of a serious relapse and a prediction that in light of her history
there is "every likelihood" that she will engage in acts of self-
destruction. It is alleged that she will be unable to obtain the
necessary psychiatric and counselling treatment in Pakistan and she is
on medication which requires constant monitoring, which is also
unlikely to be available in Pakistan. She has no family or other links
with Pakistan apart from her connection with her husband.
As regards the second applicant, the applicants submit that he
will be unable to use in Pakistan the efficient and comfortable
prostheses which enable him now to lead an almost normal life. In hot
weather prostheses become highly uncomfortable to wear and cause the
limb stumps to become inflamed. Also in Pakistan, there would not be
the orthopaedic facilities of the quality now available to him with the
servicing, repairing and improvement of his prostheses. Further, it is
submitted that he has cooperated throughout with the immigration
authorities, is in employment and has no criminal record. All his
family, save his elderly parents who have a pending application to
enter the United Kingdom as dependents of his brother, are now resident
in the United Kingdom.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 May 1995. On 20 July 1995,
the applicant's lawyer requested that the Commission indicate interim
measures concerning the removal of the second applicant pursuant to
Rule 36 of the Commission's Rules of Procedure. On 21 July 1995, the
Acting President refused to do so. However, on that date, the
application was registered and notice of it was given to the United
Kingdom under Rule 46 of the Rules of Procedure.
On 11 September 1996, the Commission decided to invite the
Government to make written submissions on the admissibility and merits
of the application. It decided to give the case priority pursuant to
Rule 33 of its Rules of Procedure.
The Government's written observations were submitted on 26
October 1995 after one extension of the time-limit fixed for that
purpose. The applicants supplied further information and comments on
30 October 1995 and in their observations in reply to the Government
on 31 December 1995, also after an extension in the time-limit.
THE LAW
The applicants complain that the proposed deportation of the
second applicant from the United Kingdom disclosed violations of
Articles 2 (Art. 2) (right to life), 3 (Art. 3) (prohibition against
inhuman and degrading treatment) 8 (Art. 8) (right to respect for
family and private life) and 13 (Art. 13) (right to an effective remedy
before national authorities) of the Convention.
As regards the alleged threat to the life of the first applicant,
the Government dispute the extent to which they can be under an
obligation to take positive steps to prevent some-one committing
suicide and that in any case such an obligation cannot extend to not
taking a lawful measure. Further the necessary causal link to the
suicide is absent, the proximate cause being the decision of the
individual. The Government point out that there is no allegation that
the applicants will be subject to any ill-treatment by the Pakistan
authorities. The treatment in question falls far short of the level
of inhuman and degrading which is prohibited under Article 3
(Art. 3); in particular, the first applicant's psychiatric illness can
be treated in Pakistan and it is not accepted that there will be any
worsening of her mental health; it is not accepted that the second
applicant would find it more difficult to use his artificial limbs but,
even if he did, this would not amount to inhuman or degrading
treatment, since in particular he lived and worked for most of his life
in Pakistan before his arrival in the United Kingdom.
In relation to the applicants' complaints under Article 8
(Art. 8) of the Convention, the Government submit that there is nothing
to stop the applicants establishing their family life in Pakistan. They
re-iterate that the second applicant lived and worked there before.
Thus the measure is proportionate to the legitimate aim of maintaining
the integrity of its immigration system in protection of the economic
well-being of the country, in particular since the second applicant had
overstayed his leave and married in the knowledge of the pending
deportation order. They dispute that the first applicant's British
citizenship confers on her in the context of her right to respect for
her private life any rights to social and economic benefits of living
in the United Kingdom.
Under Article 13 (Art. 13), the Government rely on the right of
appeal against the deportation to an adjudicator, which the second
applicant exercised in this case.
For their part, the applicants submit that the United Kingdom
must incur a positive obligation under Article 2 (Art. 2) where there
is real risk that their action will endanger the life of an applicant.
They submit that the medical evidence indicates that the threatened
removal of her husband will exacerbate a long-existing condition to the
point that it will become life-threatening. They state that she will
be unable to receive the necessary treatment for that condition in
Pakistan.
The applicants rely on various decisions of the Convention organs
which indicate that treatment contrary to Article 3 (Art. 3) may arise
from circumstances to which an individual is subjected eg. lack of
medical care, and not restricted to deliberate ill-treatment. They
contend that the exceptional circumstances of their case do meet the
severity test under Article 3 (Art. 3), in light of the effect that the
first applicant's mental health and the second applicant's physical
handicaps will have either on their forced separation from each other
or their removal together to a difficult environment. They submit that
the second applicant will not be able to use his new prostheses in
Pakistan and will be reduced once more from being a whole person to a
one armed one legged man.
The applicants dispute that it is reasonable to expect them to
establish their family and private life in Pakistan. The second
applicant, due to his age and disabilities, will find it difficult to
work and support the family and both would suffer major disruptions to
their private life, to which concept they claim should be attached a
wider significance than that proposed by the Government. Even though
it now appears that they will eventually be able to return to the
United Kingdom from Ireland, they submit that it is quite
disproportionate to the aim pursued by the United Kingdom Government
that these two exceptionally vulnerable people should have been obliged
to uproot themselves to make use of the community law option open to
them.
Finally, as regards Article 13 (Art. 13) of the Convention and
lack of effective remedies, the applicants contend that since the
second applicant falls outside the scope of the applicable immigration
rules on marriage policy the decision as to whether to grant leave to
remain lies solely with the Secretary of State and is not subject to
review by any court.
The Commission notes however that since communication of this
case, to which it attributed priority, the applicants have gone to live
in Ireland where it is said that they are able to receive all necessary
treatment and facilities and to continue their business activities. In
these circumstances, the Commission finds that they can no longer claim
to be victims of any risk to life or of being subjected to inhuman and
degrading treatment contrary to Articles 2 and 3 (Art. 2, 3) of the
Convention. In this context, it notes that the risk incurred by a
deportation must be assessed as at the time the deportation is to take
place (Application No. 22414/93, Chahal v. the United Kingdom, Comm.
Rep. 27.6.95 para. 107, pending before the Court). It follows that
where a proposed deportation does not in fact take place and the threat
no longer exists, as in this case, no issues remain for consideration.
The Commission is not persuaded, on the facts of this case, that the
existence of the deportation order, which placed the second applicant
under threat of removal until the applicants went to live in Ireland,
could by itself be regarded as disclosing any appearance of a breach
of Articles 2 or 3 (Art. of the Convention.
As regards the question whether nonetheless there has been an
interference with family and private life, since the applicants
consider that they were obliged to leave the United Kingdom to live in
Ireland in order to avoid execution of the deportation order, the
Commission recalls that according to established case-law Article 8
(Art. 8) does not impose a general obligation on States to respect the
choice of residence of a married couple or to accept the non-national
spouse for settlement in that country (Eur. Court H.R., Abdulaziz,
Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 94,
para. 68). Whether removal or exclusion of a family member from a
Contracting State is incompatible with the requirements of Article 8
will depend on a number of factors: the extent to which family life is
(Art. 8) effectively ruptured, whether there are insurmountable
obstacles in the way of the family living in the country of origin of
one or more of them, whether there are factors of immigration control
(eg. history of breaches of immigration law) or considerations of
public order (eg. serious or persistent offences) weighing in favour
of exclusion (see eg. Nos. 9285/81, Dec. 6.7.82, D.R. 29 p. 205 and
11970/86, Dec. 13.7.87 unpublished).
In the present case, the applicants have to all appearances
succeeded in continuing with their family life in Ireland, where they
are able to receive all necessary care and facilities and continue
their business activities. The Commission notes that they consider that
after the relevant qualifying period under applicable community law
they will be able to return, if they so wish, to the United Kingdom.
The Commission does not consider that the availability of the
"community law route" embarked upon by the applicants to obtain
residence rights in the United Kingdom is sufficient to render the
decision of the United Kingdom to issue a deportation order against the
second applicant a disproportionate measure for the purposes of Article
8 (Art. 8) of the Convention. In this context, the Commission observes
that the applicants have not drawn its attention to any significant
elements of hardship nor does it find any appearance of arbitrariness
or unreasonableness in the decision-making procedure of the immigration
authorities, the applicants having married in full knowledge of the
existence of the deportation order.
The Commission concludes that the facts of the case fail to
disclose any lack of respect for the applicant's rights to family or
private life as guaranteed by Article 8 para. 1 (Art. 8-1) of the
Convention.
Finally, as regards Article 13 (Art. 13) of the Convention, the
Commission recalls that this provision 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 applicants cannot be said, in light of its
findings above, to have an "arguable claim" of a violation of their
Convention rights.
It follows that the application 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
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