FOURTH SECTION
DECISION
Application no. 8655/10
by F.I. and Others
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 15 March 2011 as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Ljiljana Mijović,
Sverre Erik Jebens,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. de Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 11 February 2010,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court on 18 February 2010,
Having deliberated, decides as follows:
THE FACTS
The first applicant, F.I., is a Jamaican national who was born in 1981. The second applicant, T, is a British national who was born in 2009. She is the daughter of the first applicant and his former partner C, who is not a party to these proceedings. The third applicant, R, is a British national who was born in 1986. She is the current partner of the first applicant and the mother of the fourth, fifth and sixth applicants born in 2006, 2007 and 2009 respectively who are all British nationals. The first applicant is also the biological father of the fourth and sixth applicants but not of the fifth applicant although he is treated as such by the family. All of the applicants live in Birmingham. They are all represented before the Court by the AIRE Centre, assisted by Mr F. Omere, counsel. The United Kingdom Government (“the Government”) are represented by their Agent, Ms L. Dauban of the Foreign and Commonwealth Office.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant arrived in the United Kingdom on 26 August 2002 on a visitor’s visa which expired on 26 February 2003. Between 2004 and 2006, he submitted various unsuccessful applications for leave to remain in the United Kingdom.
On 30 May 2006, the fourth applicant, the child of both the first applicant and the third applicant, R, was born. On 21 November 2007, the fifth applicant was born. On 26 January 2009, the second applicant, T, the daughter of the first applicant and C was born and placed into the care of Birmingham Social Services due to concerns that her mother was unable to care for her. On 26 July 2009, the sixth applicant, the daughter of the first applicant and the third applicant, R, was born.
In decisions dated 10 November 2009 and 1 December 2009, the Secretary of State refused representations submitted by the first applicant under Article 8 of the Convention and refused to allow him leave to remain in the United Kingdom. On 7 December 2009, the High Court refused an application for permission to apply for judicial review of those decisions.
On an unknown date in February 2010, Birmingham City Council formally invited the first applicant to become a party to the care proceedings regarding the long term care arrangements for T.
On 9 February 2010, the High Court refused the first applicant’s renewed application for permission to apply for judicial review and stated that his Article 8 claim was unarguable.
On 10 February 2010, the United Kingdom Border Agency set removal directions for the first applicant to Jamaica to take place on 18 February 2010.
At a hearing relating to T on 11 February 2010, the Birmingham & Sutton Family Proceedings Court (“the family court”) ordered the first applicant to file a statement by 25 February 2010, and listed a further hearing to take place on 4 March 2010 to determine whether or not the first applicant should be made a party to the care proceedings relating to T.
On 17 February 2010, the Court of Appeal refused an application for permission to appeal against the High Court’s decision and refused to grant a stay of the first applicant’s removal directions to Jamaica.
On 18 February 2010, the Acting President of the Chamber to which the application was allocated decided to apply Rule 39 of the Rules of Court and indicate to the Government of the United Kingdom that the first applicant should not be expelled until further notice due to concerns about the potential irreparable harm to the family life between the first applicant and T should the first applicant be removed during the course of the ongoing care proceedings.
On 20 April 2010, the first applicant was joined as a party to the care proceedings in relation to T by order of the family court. The care proceedings are ongoing and are expected to conclude in June 2011.
B. Subsequent Developments
In a letter dated 10 December 2010, after the communication of the case to the Government but before the parties’ observations had been exchanged, the Agent of the Government wrote to the Court and stated the following:
“Having looked further into the background of this case, the Government have discovered that at the time that the applicant originally sought Judicial Review (from November 2009) and subsequently obtained the Rule 39 indication (in February 2010), he was not a party to care proceedings in respect of child T. As such the Government position that the applicant should not benefit from the UKBA’s broad policy that “it is our general practice to not enforce the removal of those who are involved in care proceedings in the Family Court” seems reasonable.
However, subsequent to the domestic proceedings and the Rule 39 indication the applicant has now become party to care proceedings in respect of child T. As such the Government would be content to now apply that policy and not seek to enforce removal pending the outcome of those proceedings. There is an Issues Resolution Hearing listed for 17 December 2010 with a final hearing likely to take place very early in 2011. Once the outcome of that Final Hearing is known the Government would be bound to make a fresh decision as to whether to remove the applicant and any negative decision would trigger a further domestic suspensive appeal.
On this basis the Government propose to make an undertaking to the Court not to remove the applicant pending the conclusion of the domestic proceedings and invite the Court to strike the application from its list. The Government would ask the Court in the meantime to suspend the deadline for submission of our observations.”
In a letter dated 7 January 2011, the applicant’s representatives welcomed the Government’s undertaking not to remove the first applicant pending the conclusion of the domestic care proceedings regarding T and acknowledged that such an undertaking addressed the alleged interference with the procedural elements of the first and second applicants’ Article 8 rights and the alleged violation of Article 6. However, they submitted that the Government’s proposal that the application be struck from the Court’s list was inappropriate because the Government’s undertaking would not resolve the alleged violations of the Article 8 rights of the first, third, fourth, fifth and sixth applicants, which would take place should the applicant be removed to Jamaica following the conclusion of the care proceedings regardless of the outcome of those proceedings. They pointed out that the applicants would, in any event, challenge any decision to remove the first applicant after the care proceedings had concluded, which would lead to further litigation and conceivably a fresh application to the Court. In the circumstances, they submitted that it would not be in the interests of justice for the application to be struck out of the Court’s list and instead invited the Court to suspend consideration of the case until the outcome of the domestic care proceedings, expected to conclude in June 2011, was known.
COMPLAINTS
The applicants complained that the first applicant’s expulsion from the United Kingdom would be an unjustified interference with their rights to respect for family and private life under Article 8 of the Convention.
They also complained that the first applicant’s removal from the United Kingdom whilst the childcare proceedings in relation to the second applicant, T, were pending would prevent the family court from carrying out its duty to assess the feasibility of placing T with her extended family and interfere with the outcome of those proceedings in violation of Article 6 of the Convention.
THE LAW
Article 37 § 1 of the Convention
Article 37 of the Convention provides:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.
2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
In order to determine whether an application should be struck out of the list pursuant to Article 37 § 1 (c) the Court must consider whether ‘‘the circumstances lead it to conclude that “for any other reason....it is no longer justified to continue the examination of [it]”. The Court recalls that it enjoys a wide discretion in identifying grounds capable of being relied upon in a strike out application on this basis; however, it also recalls that such grounds must reside in the particular circumstances of each case (Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, § 37, ECHR 2006‑XIV; M.H. and A.S. v. the United Kingdom (dec.), nos. 38267/07 and 14293/07, 16 December 2008; B.S. and Others v. the United Kingdom (dec.) no. 7935/09, 30 November 2010).
In the Court’s view, the particular circumstances of this application are such that it is no longer justified to continue its examination. First, the Court notes that the first applicant now benefits from the Government’s undertaking not to remove him to Jamaica pending the conclusion of the care proceedings relating to T as set out in the Agent’s letter of 10 December 2010. Therefore, as matters stand, the first applicant no longer faces any risk of removal whilst the family court’s assessments of T and her extended family are ongoing or before the final decisions of the family court in respect of T’s future care arrangements have been taken. Consequently, as acknowledged by the applicants’ representatives in their letter of 7 January 2011, the applicants’ complaints under both Article 6 of the Convention and the procedural aspects of Article 8 of the Convention that the first applicant’s removal would fetter the discretion of the family court and interfere with the outcome of the care proceedings in respect of T have been resolved.
The Court acknowledges that, as set out in their representatives’ letter of 7 January 2011, the applicants’ complaints are not confined to the issue of the care proceedings but also concern the alleged interference with the applicants’ rights to family and private life under Article 8 of the Convention resulting from the first applicant’s removal regardless of the outcome of the care proceedings. However, the Court notes that the Government have confirmed that, at the conclusion of the care proceedings, a fresh decision regarding the removal of the first applicant will be made and, significantly, that any decision which is adverse to the applicants will trigger a further domestic suspensive right of appeal. The Court has no reason to doubt that all of the outstanding issues under Article 8 of the Convention will similarly be re-examined by the domestic authorities in a global assessment at that stage and that further domestic remedies, including a suspensive right of appeal, will be available to the applicants.
In accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. Accordingly, it is appropriate to lift the interim measure indicated under Rule 39 of the Rules of Court and strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy