AS TO THE ADMISSIBILITY OF
Application No. 13078/87
by Emanuel FADELE, Kehinde FADELE,
Taiwo FADELE and Victor FADELE
against the United Kingdom
The European Commission of Human Rights sitting in private
on 12 February 1990, the following members being present:
MM. C.A. NØRGAARD, President
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 17 July 1987
by Emanuel FADELE, Kehinde FADELE, Taiwo FADELE and Victor FADELE
against the United Kingdom and registered on 21 July 1987 under file
No. 13078/87 ;
Having regard to:
- reports provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the Commission's decision of 7 October 1988 to bring the
application to the notice of the respondent Government
and invite them to submit written observations on its
admissibility and merits;
- the observations submitted by the respondent Government
on 25 January 1989 and the observations in reply submitted
by the applicants on 7 June 1989;
- the Commission's decision of 4 October 1989 to hold a
hearing of the parties;
- the pre-hearing briefs of the parties submitted on
24 January 1990;
- the hearing on admissibility and merits held on 12 February
1990;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a citizen of Nigeria, born in 1950, who
at the time of lodging the application was temporarily resident in
London. The other three applicants are his children, twins born in
1978 and a third child born in 1981 in the United Kingdom, by virtue
of which all three acquired British nationality.
They are represented before the Commission by Ms. Jacqueline
Bhabha of the North Islington Law Centre.
The facts of the case, as submitted by the parties, may be
summarised as follows:
A. The particular facts of the case
The first applicant has a history of illegal immigration to
the United Kingdom. According to a letter (ref. F15 8129/5 (s)) from
the Minister of State of the Home Office to the applicants' Member of
Parliament, the first applicant initially came to the attention of the
United Kingdom immigration authorities in 1980 after he had been
arrested by the police and charged with making a false statement, for
which offence he was later fined £50. (The first applicant points out
that by virtue of the Rehabilitation of Offenders Act his record has
been "wiped clean" and that it is unfair that he be indefinitely
tarred with this matter.) At that time he claimed to have entered the
United Kingdom first in 1972 and lived and worked there until 1979,
when he had left using an emergency travel document issued in London.
He had returned in January 1980 and he was granted leave to enter for
one month on 16 January 1980. Government records showed that he had
obtained this leave by falsely representing himself to be an employee
of Nigerian Airways on authorised leave, whereas the true position was
that he intended to resume studies. (The first applicant denied
making such false representations.) The Minister considered
representations against the decision to remove the first applicant as
an illegal entrant but he felt that the fact that the first applicant
was studying in the United Kingdom was not sufficient reason to
overlook the deception practised on the immigration officer and the
first applicant was eventually removed to Nigeria on 13 July 1981.
Although he had indicated that he would want his wife and the twins to
accompany him, and arrangements were made for their travel facilities
to be completed and their fares paid from public funds, the first
applicant in the event returned alone to Nigeria. From Nigeria he
telephoned the family regularly and sent them messages and parcels via
visiting friends and relatives.
Subsequent action to enforce removal of the wife (also a
Nigerian) by way of deportation following unauthorised stay was
frustrated when she moved addresses. The first applicant then applied
for entry clearance in Lagos in September 1981 to enable him to return
for studies. This application was refused since the entry clearance
officer was not satisfied that he intended to leave the United Kingdom
when his studies were completed and his appeal was dismissed by the
adjudicator on 20 July 1982. Subsequently, in December 1985, when he
presented a forged Nigerian passport, he was refused entry when
seeking to visit and purchase clothes. (The first applicant claims he
had a new passport not a forged one.) He attempted to conceal the
presence in the United Kingdom of his wife and family, and was
detained before being removed to Lagos on 17 December 1985. The first
applicant conceded before the Commission that his genuine intentions
in going to the United Kingdom in January 1980 and December 1985 were
to continue studies in electrical engineering and to settle in the
United Kingdom with the education and means to support his family.
The child applicants are three brothers. The twins lived
with, and were cared for, by both their parents from birth (25 March
1978) until 13 July 1981 when the first applicant was removed from the
United Kingdom (apart from a period between 1979 and January 1980 when
the first applicant was away from the United Kingdom). The youngest
child was born four and a half months after the first applicant's
removal. From April 1982 onwards they lived in a council flat on a
large London housing estate and started nursery and primary school
there.
The facts giving rise to the application are that the
wife/mother died in a car accident in August 1986. Two weeks later,
on 3 September 1986, the first applicant travelled to the United
Kingdom from Nigeria and sought leave to enter as a visitor in order
to care for his children and wind up his wife's affairs, including a
compensation claim arising out of her death. The first applicant told
the immigration officer that since returning to Nigeria he had been
working on his cousin's farm without remuneration, receiving only food
and accommodation. His cousin had paid for his ticket.
The immigration officer considered the matter and took account
of the compassionate circumstances which had led to the journey.
However, these had to be balanced against the first applicant's
previous attempts to settle in the United Kingdom and the fact that
he had, in the past, practised deception and shown disregard for the
Immigration Rules. The officer concluded that settlement was still
the first applicant's aim and that, in all the circumstances, the
first applicant was not genuinely seeking entry as a visitor for a
limited period. He therefore refused him formal leave to enter. The
first applicant was, however, granted temporary admission.
Representations were then made by the applicants' Member of
Parliament requesting the Minister to review the decision refusing
leave to enter. The Minister refused on 9 February 1987 in the light
of the first applicant's immigration history. Whilst expressing
sympathy with the family's bereavement, he considered that the first
applicant did not qualify for settlement in the United Kingdom. As
regards the other applicants' position, he noted that the first
applicant had by then spent five months in the United Kingdom and had
had the opportunity to take advice about arrangements for them. He
considered that the first applicant had not been closely involved with
his children since 1981 and that, accordingly, the first applicant
should not be afforded exceptional treatment outside the Immigration
Rules.
Further representations were made on the first applicant's
behalf by the North Islington Law Centre on 27 February 1987 in the
light of the family's situation at that time: The first applicant had
resumed sole responsibility for his children, withdrawing them from
the care of a friend of his wife with whom they had been unhappy.
They had gone to live with her and her four children on 9 August 1986,
changing schools. This arrangement broke down within three months.
On his arrival from Nigeria the first applicant found that the friend
was turning his children against him, recounting frightening stories
of life in Nigeria and alleging that he would take the children to
Nigeria by force. As of 6 November 1986 he found an alternative
placement for the children with another of his wife's Nigerian
friends, her husband and three children, which involved another change
of school. However this arrangement proved unsatisfactory as acute
tension arose between all the children. On 20 March 1987 the family
were reunited in their original home and returned to their first
schools.
The Law Centre, in their representations to the Secretary of
State, pointed out that the first applicant had been unable to make
any satisfactory permanent arrangements for the children's future care
in the United Kingdom. He had commenced civil proceedings against the
driver of the vehicle that had killed his wife and he needed a few
more months in the United Kingdom to pursue this matter and sort out
his wife's other affairs. The first applicant was furthermore
suffering from the shock of the bereavement and adjusting to the
renewed responsibility for his children, which responsibility he took
seriously. As regards his lack of involvement with his children since
1981, he pointed out that he would have happily returned to the United
Kingdom earlier if he had been allowed to do so.
The Law Centre applied for the first applicant to be allowed
to remain permanently in the United Kingdom with his children because
they only spoke English and knew little about Nigeria. Alternatively,
the Minister was asked to extend the first applicant's temporary
admission for a few months and to give a reassurance that any future
visitor applications he might make to see his children would not be
automatically rejected because of his immigration history.
On 3 June 1987 the Minister refused to extend the first
applicant's stay in the United Kingdom but assured him that future
visitor applications would not be automatically rejected but would be
considered on their merits in the light of all the circumstances
pertaining at the time.
A welfare report by a senior social worker obtained on 17 June
1987 recommended that the first applicant be allowed to remain in the
United Kingdom with his children, having re-established the dependent
family link, and that it would not be in the children's interest,
given their age and the traumatic experience of their mother's death,
to have to go to Nigeria against their wishes and where their future
welfare would be uncertain. The children's school sent a petition
with numerous signatures to the Home Office in support of the first
applicant's attempt to stay in the United Kingdom.
The first applicant was obliged to return to Nigeria on
23 August 1987. He was unable to pursue a compensation claim
concerning his wife's death as he was refused legal aid. He had made
arrangements for the children to be cared for by a distant relative
and his girlfriend in another part of London, which again involved
them in a change of school. His intention was to leave the children
in London pending the outcome of his application to the Commission
and/or the creation of some suitable arrangements for them in Nigeria.
On his return to Nigeria he was housed by a married friend in a one
room flat in Lagos. He fell ill for some months, but telephoned the
children regularly. They implored him to make arrangements for their
travel to Nigeria as they alleged they were being ill-treated by their
carers. They went to Nigeria on 17 December 1987.
However, since going to Nigeria, the family claims to have
suffered great hardship: The four applicants are living in the family
home in the first applicant's village in Ondo State, Nigeria. The
accommodation consists of four rooms in a compound dwelling. This
dwelling is occupied by other members of the family in addition to the
applicants. There is no electricity, no running water or toilet
facilities. There are open sewers in front of the dwelling and the
compound is filthy. The first applicant is unemployed and the
applicants all live off the first applicant's relatives. They do not
have sufficient food: the child applicants never eat fresh meat, eggs
or bread and they complain about the diet to which they are
unaccustomed. The child applicants do not attend any form of school
and have not done so since leaving London one and a half years ago. On
arrival in Nigeria, they did not speak any Nigerian languages and
English language schools are beyond the family means. They spend
their days at home. The child applicants have suffered severe health
problems since their arrival in Nigeria. The youngest child has twice
suffered severe bouts of malaria including convulsions requiring blood
transfusions and hospitalisation. All three have suffered from
typhoid, upper respiratory tract infections and gastro-enteritis. In
April 1989 the youngest child was again seriously ill. It is feared
that they might not survive to adulthood if they are obliged to remain
in Nigeria. This view was expressed by the children's doctor.
However, returning them to the United Kingdom would entail separation
from their father. Moreover, given past experience, there is no
assurance that they would be properly looked after and raised in the
United Kingdom.
B. The relevant domestic law and practice
The Statement of Changes in Immigration Rules HC 169 provide
for visitors' entry to the United Kingdom for short periods provided
no employment is undertaken and no burden is placed on public funds.
However, the first applicant, once refused a visitor's permit, sought
leave to settle in the United Kingdom to look after his children. The
Immigration Rules contain no provision for such cases, although the
Home Secretary has an overriding statutory discretion to grant entry
outside the Rules. A refusal of leave to enter the United Kingdom as
a visitor may be appealed from abroad under section 13 of the
Immigration Act 1971. However, no appeal lies from a refusal to
depart from the Immigration Rules. The section 13 appeals are heard
by independent adjudicators and Immigration Appeal Tribunals who may
make recommendations, which, the Government state, are frequently
acted upon by the Home Secretary, even if the actual appeal is
dismissed.
COMPLAINTS
The applicants complain that the refusal by British
immigration authorities to allow the first applicant to remain in the
United Kingdom as of August 1986 constitutes a breach of Article 8 of
the Convention (family life).
They contend that the refusal to use ministerial discretion to
depart from the Immigration Rules was in breach of Article 8 of the
Convention, against which refusal there was no effective domestic
remedy, contrary to Article 13 of the Convention. They also complain
that by in effect obliging the child applicants to change radically
their life style, joining their father in poor living conditions in
Nigeria, rather than allowing him to settle with them in the United
Kingdom, there was a breach of Article 3 of the Convention and further
breaches of Article 8 (home) and Article 13 of the Convention read in
conjunction with Articles 3 and 8. The child applicants also allege
that there has been an unjustified interference with their right to
education ensured by Article 2 of Protocol No. 1 to the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 July 1987 and registered
on 21 July 1987.
With the application the applicants lodged a request that the
Commission intervene to prevent the first applicant's removal from the
United Kingdom. On 22 July 1987 the President of the Commission
refused to indicate interim measures to the respondent Government
pursuant to Rule 36 of the Commission's Rules of Procedure. The same
day the Secretary to the Commission informed the respondent Government
of the introduction of the application pursuant to Rule 41 of the
Rules of Procedure.
After a preliminary examination of the case by the Rapporteur,
the Commission considered the admissibility of the application on
7 October 1988. It decided to give notice of the application to the
respondent Government, pursuant to Rule 42 para. 2 (b) of the Rules of
Procedure, and to invite the parties to submit observations on
admissibility and merits. The Government submitted their observations
on 25 January 1989, to which the applicants replied on 7 June 1989.
On 4 October 1989 the Commission decided to hold a hearing
of the parties on the admissibility and merits of the case. On
24 January 1990 both parties submitted written briefs in preparation
of the hearing which was held on 12 February 1990. At the hearing the
applicants were represented by Mr. A. Nicol, Counsel, and Mrs. J.
Bhabha, Solicitor. The Government were represented by their Agent,
Mr. N. Parker, Mr. J. Eadie, Counsel, Mr. S. Bramley, Home Office,
Adviser, and Miss D. Brookes, Foreign and Commonwealth Office,
Adviser.
THE LAW
1. The applicants have complained of the refusal of British
immigration authoritees to allow the first applicant (a Nigerian) to
join the other three applicants, his children (British), in the United
Kingdom after the death of the wife/mother. They have alleged a
breach of Article 8 (Art. 8) of the Convention (right to respect for
private and family life and home), Article 3 (Art. 3) of the Convention
(prohibition on inhuman and degrading treatment), Article 13 (Art. 13)
of the Convention (the right to a remedy for a breach of the
Convention) and Article 2 of Protocol No. 1 (P1-2) to the Convention
(the right to education).
The applicants contended that they have complied with Article
26 (Art. 26) of the Convention (exhaustion of domestic remedies)
because there were no effective domestic remedies to pursue, the
refusal of the first applicant's visitors leave being in accordance
with the Immigration Rules and the refusal of leave to settle being a
matter of pure discretion for the Home Secretary, against which there
was no appeal. They also contended that they have complied with the
six months' rule laid down in Article 26 (Art. 26) because, although
their complaints concerning Articles 3, 8 (home) (Art. 3, 8) and 13
(Art. 13) of the Convention and Article 2 of Protocol No. 1 (P1-2) to
the Convention were not specifically relied on in the original
application, the substance of these complaints was contained in that
document and previous correspondence.
The applicants submitted that the refusal of the first
applicant's settlement request constituted an unjustified interference
with their family life which had been maintained (despite separations
forced on them by British immigration authorities) through telephone
and other contacts, and which had been solidly re-established after
the trauma of the wife's/mother's death. Because of the child
applicants' total emotional and material dependence upon their father
they were in effect obliged by the settlement refusal to suffer the
additional trauma of giving up their friends, schools and the only
settled home they had ever known in the United Kingdom and of facing
great hardship living in Nigeria. They could hardly rely on the
prospect of being visited from time to time by their father in view of
the Home Secretary's continual refusal of such leave to date. The
family claimed that the interference with their Article 8 (Art. 8)
rights was not necessary for the prevention of disorder to enforce
immigration controls. The family posed no actual or potential threat
of disorder. The children were no longer of an adaptable age to cope
with the wholly inadequate health and educational environment in
Nigeria.
2. The Government replied that the applicants had failed to
exhaust domestic remedies because the first applicant had not appealed
from Nigeria under section 13 of the Immigration Act 1971 against the
original refusal of visitors leave. An adjudicator examining an
appeal under this provision, whilst finding that the Secretary of
State had acted in accordance with the Immigration Rules, might
nevertheless recommend that the Minister exercise his discretion in
the appellants' favour. The Secretary of State gives careful
consideration to such recommendations and not infrequently follows
them. Moreover, the children had not sought judicial review of the
refusal of leave on the basis of the alleged breach of Article 3
(Art. 3) of the Convention. The Government next contended that the
applicants had failed to observe the six months' rule as regards their
complaints made under Articles 3, 8 (Art. 3, 8) (home) and 13 (Art. 13)
of the Convention and Article 2 of Protocol No. 1 (P1-2), which
provisions had not been specified in the original application.
Even assuming the applicants could be said to have complied
with Article 26 (Art. 26) of the Convention, the Government submitted
that there had been no interference with the applicants' right to
respect for family life because the applicants now enjoy family life,
intact, in Nigeria, no choice of residence being included in the
rights guaranteed by Article 8 (Art. 8) of the Convention.
Furthermore, there was no failure to respect the applicants' family
life as the first applicant was allowed to enter the United Kingdom
and remain for nearly a year in order to wind up the family's affairs.
Even if there was an interference with the Article 8 (Art. 8) right,
it was in accordance with the law and was necessary for the legitimate
aim of enforcing immigration controls, which aim falls within the
ambit of the prevention of disorder under the second paragraph of
Article 8 (Art. 8). In this context account must be taken of the first
applicant's immigration history and the possibility of maintaining
family ties by visits if the child applicants had remained in the
United Kingdom. Finally, it was submitted that the applicants' other
claims under Articles 3, 8 (Art. 3, 8) (private life and home) and 13
(Art. 13) of the Convention and Article 2 of Protocol No. 1 (P1-2) were
wholly unfounded. In particular, as regards the Article 13 (Art. 13)
claim, the possibility of appeal under section 13 of the Immigration
Act 1971 or judicial review of the decisions of the immigration
authorities constitute effective remedies for the purposes of this
Convention provision.
3. The Commission has first examined whether the applicants have
exhausted domestic remedies as required by Article 26 (Art. 26) of the
Convention. It notes that the essence of their complaint is that the
first applicant was not allowed to settle with the children in the
United Kingdom. The relevant Immigration Rules contain no provision
for such cases, which are entirely a matter of the Home Secretary's
extra-statutory discretion. No appeal lies against a refusal by the
Home Secretary to exercise his discretion in the applicants' favour.
Secondly, the double discretionary remedy of attempting to obtain a
compassionate recommendation from an adjudicator which might have
persuaded the Secretary of State to change his mind and exercise his
extra-statutory discretion in favour of the applicants' father cannot,
in the Commission's view, be considered effective.
Lastly, the Commission notes that the Government have not
demonstrated the basis upon which the applicant children would have
had locus standi, or otherwise any prospects of success, in
challenging the Secretary of State's refusal to exercise his
extra-statutory discretion to allow their father to remain in the
United Kingdom with them, the challenge being based on arguments
relevant to Article 3 (Art. 3) of the Convention. Accordingly, the
Commission finds that the applicants have exhausted all effective
remedies at their disposal.
4. The Commission has next examined whether the applicants have
complied with the six months' rule laid down in Article 26 (Art. 26)
of the Convention. It finds that the substance of the applicants'
complaints, now characterised by the applicants as alleged breaches of
Articles 3 and 8 (Art. 3, 8) (private life and home) of the Convention
and of Article 2 of Protocol No. 1 (P1-2) to the Convention, was
raised in the original application to the Commission. In respect of
the applicants' complaints under these provisions the Commission
finds, therefore, that the applicants have satisfied Article 26
(Art. 26) of the Convention. However, insofar as the applicants have
complained of a breach of Article 13 (Art. 13) of the Convention, the
Commission finds that the substance of this complaint was not apparent
from the original application. This complaint was not specified until
the applicants submitted their observations on admissibility and
merits on 7 June 1989, whereas the final ministerial decision was
taken more than six months before on 3 June 1987, with the application
to the Commission being lodged on 17 July 1987. The Commission
considers this complaint to be of a qualitatively different nature
from the aforementioned Convention complaints which may reasonably be
said to flow from the description of the facts originally alleged by
the applicants in the present case. Accordingly, the Commission
concludes that it is unable to deal with the applicants' complaint
under Article 13 (Art. 13) of the Convention as they have failed to
respect the six months' rule laid down in Article 26 (Art. 26) of the
Convention. This part of the application must therefore be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
5. As regards the remainder of the application, the Commission
considers, in the light of the parties' submissions, that the case
raises complex issues of law and fact under Articles 3 and 8
(Art. 3, 8) (private and family life and home) of the Convention and
Article 2 of Protocol No. 1 (P1-2), the determination of which should
depend on an examination of the merits. The Commission concludes,
therefore, that the remainder of the application is not manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, and that no other grounds for declaring this part of the
case inadmissible have been established.
For these reasons, the Commission
- DECLARES INADMISSIBLE the applicants' complaint
under Article 13 (Art. 13) of the Convention;
- DECLARES ADMISSIBLE the remainder of the application
without prejudging its merits.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy