AS TO THE ADMISSIBILITY OF
Application No. 26922/95
by Taiwo Tunde EBIBOMI and others
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 29 November 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 13 January 1995
by Taiwo Tunde EBIBOMI and others against the United Kingdom and
registered on 29 March 1995 under file No. 26922/95;
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 first applicant is a Nigerian citizen born in 1939 and
resident in London. The second and third applicants, Ayodele Ebimomi
and Abayomi Ebimomi, children of the first applicant, are both British
citizens born in 1975 and 1976 respectively and resident in London.
They are represented before the Commission by Winstanley Burgess,
solicitors practising in London. The facts as submitted by the
applicants may be summarised as follows.
The first applicant entered the United Kingdom as a student in
1962. She married Mr. Ebimomi in 1963 and was lawfully resident in the
United Kingdom until 1977.
In 1973, the first applicant's four children died in a fire at
their home, which event triggered a personality disorder in the first
applicant's husband, Mr. Ebimomi.
The first applicant and her husband had two further children, the
second and third applicants, Ayodele born on 6 March 1975 and Abayomi
born on 18 January 1976. Because of their birth in the United Kingdom,
they have British citizenship and a right of abode.
In 1977, the first applicant, her husband and their two children
(the second and third applicants) returned to Nigeria to allow the
first applicant to care for her elderly mother who required nursing
until her death in 1990. During this period Mr Ebimomi's psychiatric
disorder required frequent periods of residential psychiatric care.
In February 1991, the first applicant returned to the United
Kingdom for a visit, obtaining leave to enter for six months. In her
absence, her husband threw the two children, Ayodele and Abayomi out
of the family home in Nigeria with some violence and commenced divorce
proceedings. The applicant's husband has since died.
Ayodele and Abayomi left Nigeria and came to join the first
applicant in the United Kingdom. As British citizens, they had the
right to enter and take up residence. After their arrival, the first
applicant decided to seek leave to remain with them in the United
Kingdom.
The first applicant's application for leave to remain was refused
on 11 March 1992. The Secretary of State noted in his decision that the
first applicant had been absent from the United Kingdom for 14 years
(except for a brief visit in 1980) and that she had made a life for
herself and her family there, her two children being educated in
Nigeria and having spent most of their lives there. On 18 March 1993,
an Adjudicator dismissed her appeal. He found that the decision
refusing leave was in accordance with the law. He declined to make any
recommendation regarding any alleged compassionate circumstances in
relation to submissions that the first applicant was a valued and self-
supporting member of the community, with her children settled and in
full-time education.
On 17 May 1993, the Immigration Appeal Tribunal refused leave to
appeal.
On 21 December 1993, the first applicant was served with notice
of intention to deport. Her appeal against this to the Adjudicator was
dismissed on 5 May 1994. He commented that while he was not without
sympathy for the first applicant's family history, she had in a sense
chosen to create the situation, it being entirely her own decision to
leave Nigeria, where she had been employed and her sons were being
educated. Leave to appeal to the Immigration Appeal Tribunal was
refused on 14 July 1994.
In 1993, Mr Ebimomi died in Nigeria. The first applicant has no
remaining relatives there. Ayodele and Abayomi are currently pursuing
their secondary education in the United Kingdom. The first applicant
supports herself and her sons, who are in full-time education, by part
time work as a cleaner and with assistance from her church.
COMPLAINTS
The applicants submit that the proposed removal of the first
applicant discloses an interference with their right to respect for
their family and private life contrary to Article 8 of the Convention.
The first applicant states that she has a very close relationship with
her sons and that she supports them financially, emotionally and
spiritually.
If the second and third applicants are forced to follow their
mother to Nigeria through inability to find a means of support in her
absence, it is submitted that this would constitute a violation of
their right to education as protected by Article 2 of Protocol No. 1.
Further, it is submitted that there is no effective remedy as
required by Article 13 of the Convention for a parent refused leave to
remain in the United Kingdom to assist a child in their education. In
this respect, it is submitted that the first applicant's right of
appeal against the decision to deport was restricted to issues of
lawfulness and the Adjudicator has only a non-binding discretionary
power to make recommendations to the Secretary of State on other
issues.
THE LAW
1. The applicants complains that the threatened removal of the first
applicant infringes their right to respect for her family and private
life.
Article 8 (Art. 8) of the Convention provides as relevant:
"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 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 according to its established case-law that
while Article 8 (Art. 8) of the Convention does not in itself guarantee
a right to enter or remain in a particular country, issues may arise
where a person is excluded, or removed from a country where his close
relatives reside or have the right to reside (see eg. No. 7816/77, Dec.
19.5.77, D.R. 9, p. 219; No. 9088/80, Dec. 6.3.82, D.R. 28, p. 160, and
No. 9285/81, Dec. 8.7.82, D.R. 29, p. 205).
However, the Commission notes that the State's obligation to
admit to its territory aliens who are relatives of persons resident
there will vary according to the circumstances of the case. The Court
has held that 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). The Commission considers that this
applies to situations where members of a family, other than spouses,
are non-nationals. Whether removal or exclusion of a family member from
a Contracting State is incompatible with the requirements of Article
8 (Art. 8) will depend on a number of factors: the extent to which
family life is 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).
The Commission recalls that in this case the second and third
applicants, aged 20 and 19, while British citizens due to their birth
in the United Kingdom, in fact spent most of their life in Nigeria
where they lived with the first applicant and received their education.
Similarly, the first applicant after leaving the United Kingdom in 1977
had established her family life in Nigeria, obtaining employment and
remaining there for 14 years. In these circumstances, noting that the
first applicant returned to the United Kingdom as a visitor and without
any right to enter as a resident, 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 controls. It concludes that the proposed
removal does not disclose a lack of respect for the applicants' rights
to family or private life as guaranteed by Article 8 para. 1
(Art. 8-1) of the Convention.
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 second and third applicants submit that they risk, by the
circumstances of their mother's removal to Nigeria, being prevented
continuing with the education courses on which they are currently
embarked due to their financial dependence on her support.
Article 2 of Protocol No. 1 (P1-2) to the Convention provides as
relevant:
"No person shall be denied the right to education..."
The Commission notes its findings above. It considers that the
risk of practical difficulties arising for the second and third
applicants in the pursuit of their studies as a result of the proposed
removal of the first applicant from the United Kingdom pursuant to a
legitimate measure of immigration control cannot be construed as a
deprivation of the right to education within the meaning of the
provision above.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicants also invoke 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 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 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
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