Application No. 24521/94
by Sammy Martin DAVIS and others
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 4 September 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 8 March 1994 by
Sammy Martin DAVIS and others against the United Kingdom and registered
on 4 July 1994 under file No. 24521/94;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the further information submitted by the applicants on 3 May 1996
and the further information provided by the respondent Government
by letter dated 18 June 1996.
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a Ghanaian citizen born in 1946 and
resident in Ghana. The second applicant, also a Ghanaian citizen, is
his wife and resides in London. The third to fifth applicants are their
sons, born in 1979, 1981 and 1991 respectively. They reside with their
mother. The third and fourth applicants have United Kingdom citizenship
whereas the fifth applicant, due to the fact that he was born after the
British Nationality Act 1981 came into force, has not.
On 21 April 1994 the second applicant was granted indefinite leave
to remain in the United Kingdom in accordance with the stated policy
of the United Kingdom Government not to deport people who have been in
that country for more than fourteen years in the absence of any strong
countervailing factors. The fifth applicant was also, as is usual,
granted leave in line with the mother.
Before the Commission the applicants are represented by
Ms. Nuala Mole of the AIRE Centre in London.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The first applicant entered the United Kingdom in the early
seventies. His wife joined him in 1977. For twelve years the first
applicant worked as a storekeeper and for two years as a minicab driver
without, however, regularising his stay.
On 24 July 1987 the first applicant was convicted by the Central
Criminal Court of two charges of rape and of possession of a false
passport and sentenced to six years' imprisonment. He was not
recommended for deportation. An appeal against the conviction and
sentence was refused on 18 May 1988.
On 18 September 1989 the Secretary of State made a decision to
deport the first applicant. The Immigration Appeal Tribunal adjourned
its hearing of the first applicant's appeal against the decision to
deport several times, pending the determination by the Secretary of
State of several petitions to use his powers pursuant to Section 17 of
the Criminal Appeal Act 1968 to refer the first applicant's conviction
for rape back to the Court of Appeal following the discovery of fresh
evidence. The Secretary of State refused these petitions on
22 February 1991 and 14 October 1991.
On 29 October 1991 the Immigration Appeal Tribunal dismissed the
first applicant's appeal against the decision to deport. Two subsequent
applications for leave to move for judicial review were refused.
On 14 February 1994, pursuant to the re-opening of the case at
the instigation of "Justice", the United Kingdom branch of the
International Commission of Jurists, the Secretary of State refused to
disclose the findings of the Metropolitan Police in their investigation
and again refused a petition to refer the first applicant's conviction
for rape back to the Court of Appeal. On 23 February 1994 lawyers
acting for the first applicant lodged an application with the Court of
Appeal in order to compel the Secretary of State to make this new
evidence, which apparently shed considerable light on several hitherto
unexplained matters, available to them.
On the same date, prior to the listing of the aforesaid
application before the Court of Appeal, the deportation order was
served on the first applicant. Removal directions were set for
8 March 1994 on which date the first applicant was deported to Ghana.
On 31 October 1994 the Secretary of State refused the first
applicant's application of 31 August 1994 for the revocation of the
deportation order.
On 28 November 1994 the Court of Appeal quashed the Secretary of
State's decision not to refer the first applicant's conviction back to
the Court of Appeal and not to disclose the new evidence. On
20 January 1995 the first applicant's counsel were informed that the
Secretary of State had decided to refer the case back to the Court of
Appeal. Consequently a further application was made to the Secretary
of State requesting him to revoke the first applicant's deportation
order.
On 4 September 1995 the Secretary of State granted the first
applicant temporary admission to the United Kingdom in order that he
could be present at the reconsideration of his case by the Court of
Appeal. The applicant arrived in the United Kingdom on 3 October 1995
and was granted leave to remain until 3 January 1996.
On 5 December 1995 the Court of Appeal upheld the applicant's
conviction on the basis that the evidence before the court was
insufficient to warrant the quashing of the original conviction as
unsafe and unsatisfactory.
On 25 January 1996, further to the hearing of 13 December 1995,
the adjudicator allowed the applicant's appeal against the refusal of
the Secretary of State to revoke the deportation order. The
adjudicator stated that having considered the totality of the evidence,
exceptional circumstances existed that made the refusal of the
Secretary of State to revoke the deportation order not the right course
on the merits.
On 10 April 1996 the Secretary of State granted the applicant
temporary leave to remain as a spouse for one year, with the option to
apply thereafter for indefinite leave to remain.
COMPLAINTS
The applicants complained that the deportation of the first
applicant, at a time when the safety of the latter's conviction for
rape was still the subject of litigation, constituted a violation of
their right to respect for their family and private life which cannot
be justified under any of the grounds of para. 2 of Article 8 of the
Convention. The removal of the first applicant disrupted the stable
family unit which the applicants had formed again after the first
applicant had served his prison sentence. The third to fifth applicants
submit that it would have been unreasonable to expect them to join
their father in Ghana, a country with which their only link is that of
descent. Furthermore, the third and fourth applicants, who have held
British nationality from birth, were well integrated into their
community and were doing well at school. It is submitted that they were
not of an adaptable age.
The first applicant further complained of discriminatory
treatment contrary to Article 14 of the Convention, in that his
deportation following his prison sentence constituted an additional
punishment which could not have been imposed on United Kingdom
nationals.
The third and fourth applicants also invoked Article 14 of the
Convention. They submitted that in order to have enjoyed family life
with their deported father they would, unlike other children with
United Kingdom citizenship, have had to forego their private life right
to reside in the country of their birth and nationality.
The applicants finally complained that they did not have an
effective remedy before a national authority within the meaning of
Article 13 of the Convention in respect of the alleged violations
outlined above. While referring to the Court's Berrehab judgment (Eur.
Court H.R., judgment of 21 June 1988, Series A no. 138) they contended
that British immigration rules do not contain a provision to permit a
parent to remain in the United Kingdom on the basis of his or her
relationship to a minor child who is a United Kingdom citizen.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 March 1994 and registered on
4 July 1994.
On 24 October 1995 the Commission decided to give notice of the
application to the respondent Government pursuant to Rule 48 para. 2(b)
of its Rules of Procedure without, at that stage, inviting the
respondent Government to submit written observations on the
admissibility and merits of the application.
By letter dated 26 April 1996 the applicants' representative
informed the Commission that the first applicant had been granted leave
to remain in the United Kingdom as a foreign spouse for a period of one
year, with the option to apply thereafter for indefinite leave to
remain.
By letter dated 18 June 1996 the Agent of the respondent
Government also informed the Commission that the first applicant had
been granted leave to remain in the United Kingdom as a foreign spouse
on 20 March 1996 for a period of 12 months.
By fax dated 28 June 1996 the applicants' representative informed
the Commission of the applicants' intention to withdraw their
application.
REASONS FOR THE DECISION
In view of the declaration by the applicants' lawyer that the
applicants wish to withdraw their application registered under file
No. 24521/94, the Commission finds that the applicants no longer intend
to pursue their petition within the meaning of Article 30 para. 1(a)
of the Convention.
The Commission further considers that respect for Human Rights
as defined in the Convention does not require it to continue with the
examination of the application. The Commission therefore accepts the
applicants' request to withdraw the application.
It follows that the application may be struck off the list of
cases pursuant to Article 30 para. 1 of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy