AS TO THE ADMISSIBILITY OF
Application No. 14522/89
by Joshua GABRIEL
against the United Kingdom
The European Commission of Human Rights sitting in private on
20 January 1989, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 12 December
1988 by Joshua GABRIEL against the United Kingdom and registered
on 9 January 1989 under file No. 14522/89;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Nigerian citizen, born in 1944 and resident
in Birmingham. He is represented before the Commission by Mr. S.J.
Foster, Solicitor, of the Saltley Action Centre, Birmingham.
The facts of the case, as submitted by the applicant, and
which may be deduced from official documents included in the
application, may be summarised as follows.
Between 1962 and 1974 the applicant worked and studied in the
United Kingdom. He returned to Nigeria in 1974 to look after his sick
mother and his oldest child. He left behind him in the United Kingdom
an estranged wife and two children. According to a statement made by
the applicant's wife in 1978 to the immigration services, she had left
him in 1972, taking the children with her by reason of his infidelity
and ill-treatment of her. Before returning to Nigeria the applicant
had also lived with another woman who gave birth to a daughter. The
applicant returned to the United Kingdom on 28 June 1985 and was given
leave to enter as a visitor for three months. He overstayed and
worked. On 27 December 1987 he was arrested as an overstayer, as a
result of which, a month later, a deportation order was issued under
Section 3(5)(a) of the Immigration Act 1971.
On 5 August 1988 an Adjudicator dismissed the applicant's
appeal against the deportation order. Before the Adjudicator it was
submitted that the applicant had strong family ties with his
children, but the Adjudicator did not believe it. Although the
applicant, his wife and their daughter gave evidence that prior to
leaving the United Kingdom in 1974 the applicant had kept in close
touch with his children, seeing them every day, there was evidence
that the applicant's wife had stated to an immigration officer in 1978
that the applicant had ceased maintenance payments in May 1974 and
that she had later heard from a friend that he had returned to
Nigeria. Of the regular letters sending money and clothes that the
applicant claimed to have sent to his first family, the wife, in 1978,
stated that she had only received one, addressed to the children with
no enclosures. In the Adjudicator's opinion the oral evidence put
before him by the wife lacked persuasion in view of her aforementioned
statements to the immigration services in 1978, and the daughter's
evidence was inconsistent with that of her parents. The Adjudicator
inferred from all this evidence that after the family's separation
there had been little contact between 1972 and 1974, and that the
applicant severed nearly all contact with both of his families when he
left the United Kingdom in 1974.
The Adjudicator found minimal family connections between the
applicant and his wife and children. The applicant claimed to have
returned to assist his son who was serving a prison sentence. The son
submitted a statement in support of his father's case and their close
ties, which he subsequently withdrew. At the time of the statement he
had not seen his father for seven months since his transfer to another
prison. The Adjudicator considered that this particular claim was
weak. He concluded that the applicant's submission concerning his
right to family life rang "hollow in view of (his) abandonment of both
his families". On reviewing the whole of the evidence the Adjudicator
was not satisfied that "the compassionate circumstances, such as they
are, are anywhere near weighty enough to outbalance the public
interest of deportation" based on the applicant's seemingly deliberate
overstaying in breach of immigration rules.
On 26 August 1988 the Immigration Appeal Tribunal upheld the
Adjudicator's decision. The applicant's deportation to Nigeria is now
imminent.
COMPLAINTS
The applicant complains that the refusal of the British
immigration authorities to grant him indefinite leave to remain, and
the deportation order, constitute a breach of his right to respect for
family life, ensured by Article 8 of the Convention. His deportation
would prevent him maintaining contact with his children with whom he
claims to have a close relationship. He is hard working and honest,
having no criminal record. There has been no criticism of his life
style in the United Kingdom. He contends that the Adjudicator's
decision was against the weight of evidence concerning his close
family ties. The applicant wishes to see his children regularly to
give them guidance and advice, especially his wayward son. Likewise
the children would like the applicant to be near them.
The applicant also submits that there is an unjustified
interference with his right to respect for private life ensured by
Article 8 and that the deportation order is disproportionate to his
overstaying. If removed to Nigeria he will find it difficult to
adjust to life there.
THE LAW
The applicant has complained that the refusal of the British
immigration authorities to grant him leave to remain and his pending
deportation back to Nigeria constitute a breach of Article 8 (Art. 8) of the
Convention, the relevant part of which provides as follows:
"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."
Whilst the Convention does not guarantee a right, as such, to
enter or remain in a particular country, the Commission has constantly
held that the exclusion of a person from a country where his close
relatives reside may raise an issue under Article 8 (Art. 8) of the Convention
(e.g. 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. 6.7.82, D.R. 29 p. 205).
The first question which the Commission must examine is
whether there exists a link between the applicant and his children
sufficient to establish the family life protected by Article 8 (Art. 8) of the
Convention. The Commission notes that the applicant made claims of
close family ties before the Adjudicator but was not believed, neither
was the evidence of the applicant's estranged wife and one of his
daughters. The Commission also notes that the evidence of family
commitment provided by the applicant's son was withdrawn. The
Adjudicator found that the applicant had severed nearly all contact
with his children when he left the United Kingdom in 1974 and that
there was little evidence of any close tie being established on his
return in 1985. The son, for whom the applicant had expressed the
most concern, was in prison and had received no visit from the
applicant for several months. The Commission finds nothing in the
case file presented by the applicant to suggest that these factual
findings of the Adjudicator were arbitrary or wholly without
foundation. Furthermore, the Commission observes that no evidence of
financial or other material dependency of the children on the
applicant has been submitted in support of the application. In the
circumstances of the present case the Commission concludes that the
applicant does not have a sufficiently close family link with his children
which falls within the protection of Article 8 para. 1 (Art. 8-1) of the
Convention. Accordingly there has been no interference with the applicant's
right to respect for family life ensured by this provision and this aspect of
the case must be rejected as being manifestly ill-founded, within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
Insofar as the applicant has also complained of a breach of his right
to respect for private life, ensured by Article 8 (Art. 8) of the Convention,
the Commission notes that the applicant has made no specific submissions
regarding this aspect of his application. It therefore finds the claim wholly
unsubstantiated. Accordingly this part of the case must also be rejected as
being manifestly ill-founded, within the meaning of Article 27 para. 2 (Art.
27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)