AS TO THE ADMISSIBILITY OF
Application No. 27299/95
by Sukhdev Singh JOHAL, Gurjyot SINGH and
Parveenjyot SINGH
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 4 March 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 1 May 1995 by
Sukhdev Singh JOHAL, Gurjyot SINGH and Parveenjyot SINGH against the
United Kingdom and registered on 11 May 1995 under file No. 27299/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
20 November 1996 and the observations in reply submitted by the
applicants on 4 and 8 March 1997;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a British citizen, born in 1967 and
resident in Birmingham. The second and third applicants are the
children of the first applicant and K, and were born in the United
Kingdom in 1993 and 1994 respectively. They are British citizens.
The applicants are represented before the Commission by
A.D. Schiller, a solicitor practising in Birmingham.
a. The particular circumstances of the case
K., an Indian national, entered the United Kingdom on
8 June 1991, having married a United Kingdom citizen, Y., on
1 March 1991 in India under an arranged marriage and having obtained
the necessary entry clearance. She was given limited leave to remain
until 8 June 1992 as a dependant spouse. On or about 5 August 1991, K.
was forced to leave the matrimonial home due to violence inflicted on
her by Y.. Y. informed the Secretary of State of K.'s departure. K.
commenced proceedings for an injunction to restrain Y. from threatening
or using violence against her. On 16 August 1991, Y. gave a Court
undertaking to this effect. Divorce proceedings were commenced. A
decree absolute was issued on 5 October 1992.
On 19 June 1992, after the expiry of the period of leave, K.
made a new application for leave to remain in the United Kingdom. On
16 July 1992, she was interviewed by an Immigration Officer. On
28 October 1992, the Secretary of State notified her by letter that he
had decided to make a Deportation Order against her under section
3(5)(a) of the Immigration Act 1971, although K. claims that she never
received it, having moved address. A letter to the same effect was sent
to her solicitors who acknowledged receipt of it on 3 November 1992 and
informed the Secretary of State of her new address and requested appeal
forms to be sent.
On 12 September 1992, K. met and started a relationship with the
first applicant and, in the last week of September, they state that
they started to co-habit. On 11 December 1992, they married. On
17 June 1993 their first child (the second applicant) was born and
21 October 1994, their second child (the third applicant) was born. The
Government state that they do not accept that the first applicant and
K. began to cohabit before the notice of intention to deport was
signed.
On 22 December 1992, the applicant's solicitors wrote to the
Secretary of State on K.'s behalf for settlement on the basis of her
marriage on 11 December 1992 to the first applicant. Whilst enquiries
were being made as to the circumstances of the marriage, by letter
dated 7 January 1994, the first applicant and K. informed the Secretary
of State of the date of their marriage and the date of the birth of the
second applicant.
On 26 August 1994, the Secretary of State signed a Deportation
Order under section 5 of the Immigration Act 1988 which included an
indefinite prohibition on K. entering the United Kingdom. By letter
dated 16 September 1994, the Secretary of State claimed that, since the
marriage between the first applicant and K. had taken place after the
commencement of enforcement proceedings against K., the decision to
deport her could not be reversed. The Secretary of State considered
that there were no factors, including the birth of both the second and
third applicants, that provided grounds for rescinding the Deportation
Order, again because the actual marriage did not pre-date the
enforcement action. By a letter dated 23 November 1994, the Secretary
of State, referring to the Immigration Department guidance concerning
marriage stated:
"I should explain that this guidance refers to genuine and
subsisting marriages and common-law relationships akin to
marriage that pre-date enforcement action. As you are
aware, [K.] was served on 28 October 1992 with a notice of
intention to deport her. Her marriage does not predate
enforcement action and cannot avail her under these
circumstances. You have indicated that [K.] has a common-
law relationship with her second husband which pre-dates
enforcement action, but you have provided no evidence to
substantiate this claim".
The letter further stated that there was no evidence that the
marriage was genuine and subsisting, and that Immigration Officers who
visited her home in April and September 1994 did not find either her
husband or evidence of his presence.
By letter dated 13 February 1995, the Secretary of State made
clear his view that the age of the children, 18 months and 3 months,
was clearly young enough for them to be able to adapt to life abroad
and that any economic or social hardship that they might suffer in
India was not sufficient to outweigh K.'s abuse of immigration control
between 8 and 19 June 1992.
K. commenced judicial review proceedings claiming that the
Secretary of State had failed to follow his own policy guidelines
(DP2/93). On 16 March 1995, leave to review the decision of the
Secretary of State to deport her was refused on the grounds that the
policy guidelines relied on did not apply in her case. On
25 March 1995, officers of the Immigration Service acting on behalf of
the Secretary of State detained K. while details were taken to apply
for an Indian passport on her behalf so that she could be deported to
India.
b. Relevant domestic law and practice
By section 3 (1) of the Immigration Act 1971 (the 1971 Act) a
person who is not a British citizen shall not enter the United Kingdom
unless given leave to do so. Leave either to enter or to remain when
already in the United Kingdom, may be given either for a limited period
or for an indefinite period. Pursuant to paragraph 3 of the Immigration
(Variation of Leave) Order 1976, where a person has leave to enter or
remain in the United Kingdom for a limited period and applies to the
Secretary of State before the expiry of that period for such limited
leave to be varied, the duration of his leave shall, by virtue of this
Order, be extended until the expiration of 28 days after the date of
the decision on the application.
By section 5(1) of the 1971 Act where a person is under
section 3 (5) liable to deportation, the Secretary of State may make
a Deportation Order against him, that is to say an order requiring him
to leave and prohibiting him from entering the United Kingdom.
By section 24(1) of the Act, a person who is not a British
citizen shall be guilty of an offence punishable on summary conviction
with a fine or with imprisonment or with both if having only a limited
leave to enter or remain in the United Kingdom, he knowingly remains
beyond the time limited by the leave. However the Secretary of State
will consider applications for leave to remain in such circumstances
in the exercise of his discretion. Where the Secretary of State decides
to sign a Deportation Order before the application was received, the
Secretary of State will reconsider that decision in the light of the
circumstances advanced in support of the application for leave to
remain. In making the decision in such circumstances, Home Office
officials are guided by an instruction known as "DP2/93" which provides
guidance on cases involving marriage and children and expressly takes
account of the Convention in general and Article 8 in particular.
The relevant provision of the instruction provides that, as a
general rule, deportation under section 3(5)(a) or section 3(5)(b) (in
non-criminal cases), or illegal entry action should not be initiated
or pursued where the subject has a genuine and subsisting marriage to
a person settled in the United Kingdom if (a) the marriage pre-dates
enforcement action; and (b) the marriage has lasted 2 years or more or,
in the case of a common-law relationship the couple have cohabited for
2 years or more. However, it does not automatically follow that
deportation/removal is the right course where this test is not met.
Full account should be taken of any evidence that a strong relationship
has existed for more than 2 years (this will include any reasons why
the couple did not marry earlier, e.g. waiting for a divorce to be
finalised, saving to buy their own home); or the settled spouse has
lived here from an early age or it is otherwise unreasonable to expect
him/her to accompany on removal; or (c) one or more children of the
marriage has the right of abode in the United Kingdom, most commonly
as a result of having been born in the United Kingdom to a parent
settled here.
In considering whether it is reasonable for a spouse to accompany
on removal under the paragraph 2(c) above, whilst the onus is on the
United Kingdom settled spouse to make out a case for why it is
unreasonable for him/her to join the family outside the United Kingdom,
in general terms cases should be considered if the United Kingdom
settled spouse (a) has strong family ties in the United Kingdom; or (b)
has lengthy residence in the United Kingdom; or (c) suffers from ill
health such that his/her quality of life would be significantly
impaired if he/she were to accompany his/her spouse on removal.
With regard to divorced parents, the relevant legislation
provides that where one parent is settled in the United Kingdom and the
removal of the other would result in deprivation of frequent and
regular access currently enjoyed by either parent, section 3(5)(a),
3(5)(b) (in non criminal cases) or illegal entry action should be
abandoned. Reliance cannot be placed on the argument that the United
Kingdom settled parent can travel abroad to continue access.
With regard to common law relationships where there is conclusive
evidence that a genuine and subsisting common law relationship akin to
marriage exists, it should be considered under this instruction as if
it were a marriage. The onus rests firmly on the individual who seeks
to benefit to provide conclusive evidence of the nature of the
relationship.
It is the Secretary of State's normal policy to grant leave to
remain and to rescind a decision to make a Deportation Order if it is
shown subsequently that a case satisfied the conditions laid down in
that instruction.
COMPLAINTS
1. The applicants invoke Article 3 of the Convention. They complain
that if they were to follow K. to India they would be destitute since
the first applicant would not be able to find a job, having no links
with the country and he would therefore not be able to support the
family as he now does. As a result of that poverty, the second and
third applicants would be deprived of health care, educational and
social services. Further, they claim that they would be marginalised
due to K.'s status as a woman who had left an arranged marriage. Even
if the second and third applicants stay in the United Kingdom, they
would still suffer inhuman and degrading treatment since they would be
separated abruptly and permanently from their mother at a very young
age with serious psychological consequences.
2. The applicants complain that the deportation of K. would
constitute an interference in their right to respect for their family
and private life contrary to Article 8 of the Convention. They also
claim under Article 8 that the Home Office guidelines DP2/93 provide
that K. would be allowed to remain in the United Kingdom if she
divorced the first applicant and that there is no reason for the
apparently preferential treatment given to divorced parents. The second
and third applicants claim that whether they follow their mother to
India or remain in the United Kingdom with the first applicant, their
right to respect for family life will have been violated in that they
will have been separated from one of their parents at a very young age.
3. The second and third applicants further complain that if they
follow their mother to India they would be deprived of their right to
education as laid down in Article 2 of Protocol No. 1 to the Convention
due to their lack of financial resources.
4. Finally, the applicants complain that they are subject to
discrimination contrary to Article 14 as regards their enjoyment of
rights laid down in the Convention due to their having a foreign mother
or, in the case of the first applicant, a foreign wife. Further, they
are treated differently from families where the parents are divorced,
where policy guidelines DP2/93 apply.
5. The applicants further complain of a violation of Article 13 in
that judicial review proceedings can only consider whether the
Secretary of State had taken due regard of his policy guidance, and the
court has no jurisdiction to determine the case on its merits.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 1 May 1995 and registered on
11 May 1995.
On 26 June 1996 the Commission decided to communicate the
applicants' complaints concerning Articles 8, 13 and 14 to the
respondent Government.
The Government's written observations were submitted on
20 November 1996, after an extension of the time-limit fixed for that
purpose. The applicants replied on 4 and 8 March 1997, also after an
extension of the time-limit.
On 3 December 1996, the Commission granted the applicants legal
aid.
THE LAW
The applicants invokes Articles 3, 8, 13 and 14
(Art. 3, 8, 13, 14) in respect of the proposed expulsion of K., who is
respectively their wife and mother. They also invoke Article 2 of
Protocol No. 1 (P1-2) of the Convention in respect of the second and
third applicants.
Article 3 (Art. 3) of the Convention provides:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
Article 8 (Art. 8) provides as relevant:
"1. Everyone has the right to respect for his private and
family life, ...
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".
Article 13 (Art. 13) of the Convention provides :
"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".
Article 14 (Art. 14) of the Convention which provides:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status."
Article 2 of Protocol No. 1 (P1-2) provides as relevant:
"No person shall be denied the right to education."
The Government submit that, had K. applied for an extension of
leave before 8 June 1992, the overwhelming likelihood is that leave
would not have been granted because at that time K. was no longer
cohabiting with her husband and had no claim within the immigration
rules to remain. The Government further submit that the deportation of
K. would not interfere with the applicants' right to respect for their
family life. Article 8 (Art. 8) did not confer on married couples a
right of choice of the place of their residence. Therefore, the first
applicant could be expected to follow his wife to India. Moreover, the
first applicant married K. at a time when, it can fairly be presumed,
he and K. knew of her precarious immigration position. She had been
arrested and questioned in July 1992, two months before they met,
because she was remaining in the country without leave and the Home
Office had written both to her and her solicitors informing them that
the Secretary of State had decided to sign a Deportation Order against
K. and she had actually sought the forms upon which to appeal.
The Government also submit that the second and third applicants
are very young children, aged 3 and 2 respectively and that they can
adapt to life in India very easily. There is, according to the
Government, no insurmountable obstacle which will prevent any of the
applicants from accompanying K. to India when she is returned and that
the family unit can be maintained there. If the first applicant were
to remain in the United Kingdom this would be a result flowing from his
choice and not from interference by the United Kingdom with the respect
due to his private or family life.
The Government submit that, even assuming that there was an
interference with the applicants' right to respect for their family
life, such interference was justified under paragraph 2 of Article 8
(Art. 8-2). K.'s deportation was in accordance with law and pursued
proportionately a legitimate aim namely, the proper control of
immigration. The first applicant had remained in the United Kingdom for
more than four years without any lawful justification when in fact she
has been aware since the expiry of her original leave in June 1992 that
she has had no entitlement to remain. In assessing proportionality, the
authorities took into account the seriousness of the breach of the
immigration rules, the fact that K. and the first applicant married and
had children at a time when they knew K was an overstayer and in all
probability knew of the decision to deport her and the fact that the
second and third applicants are very young and can readily adapt to
life in India. Moreover, the interference was necessary in a democratic
society in the interest of the economic well-being of the country and
for the prevention of disorder or crime. The interference thus did not
exceed the margin of appreciation afforded to the Contracting States.
Having regard to the above, the Government submit that the
expulsion cannot disclose any violation of the right to education
guaranteed under the Article 2 of Protocol No. 1 (P1-2) to the
Convention. As regards allegations of discriminatory treatment under
Article 14 (Art. 14), the Government submit that the position of
divorced people with children and married people with children is not
analogous. Even assuming that they would be considered as comparable,
the difference in treatment is justified: a divorced parent cannot be
expected to follow his/her ex-spouse to the country of deportation for
the purposes of maintaining a link with his/her children, while a
parent still married to the other parent can be expected to do so.
Finally, the Government submit that there is no arguable claim
that the applicants' rights have been violated and therefore there can
be no complaint under Article 13 (Art. 13) as regards an alleged lack
of an effective remedy.
The applicants submit that the measure of expulsion discloses a
violation of their right to respect for family and private life under
Article 8 (Art. 8) of the Convention. Had K. applied for an extension
of leave before 8 June 1992, the Secretary of State might well have
exercised his discretion to allow K. to remain given the compassionate
circumstances following the breakdown of her marriage and the social
ostracism that she would face in India having left her arranged
marriage. The applicants also submit that a relationship between K. and
the first applicant began in September 1992 and conception of the first
child (the second applicant) took place before the refusal of K.'s
application for an extension of her leave on 28 October 1992. Thus, at
the date the relationship started, no decision had been taken as to the
future immigration status of K. and K. did not know and could not be
expected to know the decision that the Secretary of State was likely
to reach.
The applicants further submit that the fact that the first
applicant married K. on 11 December 1992 should be looked at in the
light of the fact that at the time K. was over three months pregnant
with the first applicant's child and in that respect it cannot be said
to be a marriage of convenience for immigration purposes. Moreover,
contrary to the Government's submissions, the applicants maintain that
it cannot be realistically suggested that the family unit can be
maintained in India, given that the first applicant has lived all his
life in the United Kingdom and has a job by which he is able to support
his family whereas he has no employment prospects in India. The first
applicant refers in particular to the economic and social difficulties
that would be suffered by the second and third applicants but also
submits that the family as a whole would sink into poverty and
destitution. The applicants also submit that, in view of the fact that
K entered the United Kingdom lawfully and her breach of immigration
rules is minor (she overstayed her leave by ten days before applying
for renewed leave), the response of the United Kingdom authorities to
expel K is disproportionate. It would also result in them suffering
inhuman and degrading treatment contrary to Article 3 (Art. 3).
The second and third applicants complain that in following their
mother to India they would be deprived of the right to education
guaranteed under Article 2 of Protocol No. 1 (P1-2).
The applicants submit that the first applicant in particular is
discriminated against by the Home Office guidelines DP2/93 which in
effect provide that K. would be allowed to stay in the United Kingdom
if she divorced the first applicant thus bestowing preferential
treatment on divorced couples as opposed to those who make a commitment
to married life which is the usual forum for enjoying family life. They
are also discriminated against on the basis that K. is a foreign wife
and mother. The applicants further complain that they have no
effective remedy before a national authority in violation of Article 13
(Art. 13) of the Convention.
The Commission considers, in light of the parties' submissions,
that the case raises serious issues of fact and law under the
Convention the determination of which should depend on an examination
of the merits of the application as a whole. The Commission concludes,
therefore, that the application is not manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No
other grounds for declaring it inadmissible have been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE without prejudging the
merits.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy