FOURTH SECTION
DECISION
Application no. 30739/08
by Alfred LAME
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 11 May 2010 as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 25 June 2008,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Alfred Lame, is a Kosovar national who was born in 1984 and lives in Bognor Regis. He was represented before the Court by Ms J. Stevens, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms J. Gladstone of the Foreign and Commonwealth Office.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was born on 28 April 1984 in Kosovo. In March 1999 he and his family were forced to leave their home after repeated raids and persecution by Serbs. While fleeing Kosovo, the applicant became separated from his family. After spending some time in a refugee camp in Macedonia, he arrived in the United Kingdom as an unaccompanied minor on 11 January 2000 and claimed asylum. At first the applicant was cared for by social services and was placed with foster parents. He remained with the same foster parents until August 2004, when he went to live with another family. He has had no contact with his biological parents since March 1999, despite having searched for them.
The applicant's asylum claim was refused by the Secretary of State for the Home Department but he was granted exceptional leave to remain until his eighteenth birthday. Before the expiry of his leave in April 2002, he applied for further leave to remain in the United Kingdom on asylum and human rights grounds. The Secretary of State refused the application on 11 November 2004.
On 24 October 2003 the Secretary of State announced a one-off exercise to allow families who had been in the United Kingdom for three or more years to stay (“the family amnesty policy”). The family amnesty policy initially applied to families where an adult within the family had made an asylum claim before 2 October 2000; the qualifying adult had at least one child or step-child aged under 18 who was financially or emotionally dependent upon him; and they had been living in the United Kingdom as a family unit since 2 October 2000. Such families would be eligible for Indefinite Leave to Remain (“ILR”) if the asylum application had not been decided; if the asylum application had been refused but was subject to appeal; or if the asylum application had been refused and there was no further avenue of appeal but the family had not left or been removed. Certain families were excluded, for example if a family member had a criminal conviction or anti-social behaviour order against him.
On 20 August 2004 the eligibility criteria were updated. Most importantly, the original family amnesty policy was extended to families with dependent children aged under 18 either on 2 October 2000 or on 24 October 2003. Had the applicant arrived in the United Kingdom with his parents, he would have been covered by the amended policy.
The applicant appealed against the decision of 11 November 2004 to refuse to grant him further leave to remain. The Adjudicator dismissed the appeal. Reconsideration was ordered on the sole issue of whether the applicant's removal would be contrary to Article 8 of the Convention taken together with Article 14, having regard to the fact that the applicant, as an unaccompanied minor, was treated differently from a person in identical circumstances with one or more natural parents in the United Kingdom. On reconsideration, the Asylum and Immigration Tribunal affirmed the Adjudicator's decision, holding that the difference in treatment between the applicant and the children of adult asylum seekers was rationally justified and, in any event, the applicant did not satisfy the criteria of “other status” in Article 14. On 28 November 2006, the Court of Appeal upheld that decision. The applicant was granted leave to appeal to the House of Lords, but the appeal was dismissed in a judgment handed down on 25 June 2008.
During the course of the domestic proceedings, the applicant had applied unsuccessfully to the Home Office for ILR under the family amnesty policy.
COMPLAINTS
The applicant complained under Article 8 of the Convention that his removal from the United Kingdom would have constituted a disproportionate interference with his right to respect for his private life. He further complained under Article 14 that he had been subjected to discrimination in the enjoyment of his rights under Article 8 because the family amnesty policy had treated him differently from accompanied minors who had claimed asylum in the United Kingdom prior to 2 October 2000.
.
THE LAW
I. ARTICLE 37 § 1 (b) OF THE CONVENTION
By letter dated 12 March 2009 the Government informed the Court that the applicant had been granted Indefinite Leave to Remain in the United Kingdom.
On 29 September 2009 the applicant's representative informed the Court that he did not wish to withdraw his application to the Court following the grant of Indefinite Leave to Remain. In particular, the applicant submitted that although his complaint was partially redressed via the grant of Indefinite Leave to Remain, the policy which he alleged was discriminatory was still in force. The application therefore involved an important issue of general interest and respect for human rights required the Court to examine it. Moreover, he submitted that the Government had made no offer in respect of damages, costs or expenses.
The Government, however, submitted that as the applicant had been granted Indefinite Leave to Remain, he was no longer a victim under Article 34 of the Convention and his claim should therefore be struck out under Article 37. The Government further submitted that the applicant's complaints related to the application of a one-off exercise which was directed at family groups where the asylum application was made before 2 October 2000. Although the policy had not been formally revoked, the current practice was to consider all longstanding asylum claims in accordance with the provisions of Chapter 53 of the United Kingdom Border Agency's Enforcement Instructions and Guidance. Unlike the one-off exercise, this approach did not exclude single adults without children. The Government submitted that it was not aware of any cases similar to that of the applicant's which had been stayed pending determination of the applicant's claim. Consequently, it could not be said that the case involved an important issue of general interest which required the Court to consider the complaint.
The Court recalls that Article 37 § 1 of the Convention provides as follows:
“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.”
The Court further recalls that in order to ascertain whether Article 37 § 1 (b) applies to the present case, it must answer two questions in turn: first, whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, § 30, 20 December 2007).
As to the first question, the Court notes that the applicant has been granted Indefinite Leave to Remain in the United Kingdom. Therefore, as matters stand, the applicant does not face any risk of removal (Sisojeva and Others v. Latvia [GC], no. 60654/00, §§ 97-102 ECHR 2007‑....). As there is no longer a risk of any interference with his family and private life, the circumstances complained of under Article 8 of the Convention no longer obtain. As regards the second question, the Court finds that the grant of Indefinite Leave to Remain also provided adequate and sufficient redress for the applicant's complaints under Article 8 of the Convention (El Majjaoui, cited above, § 33).
The Court therefore finds that the applicant no longer has a complaint which falls within the ambit of Article 8. As Article 14 has no separate existence, the Court finds that the matter giving rise to the applicant's complaints can now be considered to be “resolved” within the meaning of Article 37 § 1 (b). Finally, the Court finds that no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination of the application under Article 37 § 1 in fine.
II. APPLICATION OF RULE 43 § 4 OF THE RULES OF COURT
Rule 43 § 4 of the Rules of Court provides:
“When an application has been struck out, the costs shall be at the discretion of the Court. ...”
The applicant claimed a total of GBP 5,078.91 in legal costs and expenses, which is approximately EUR 5,669.54. This comprised costs and expenses incurred before the Court and covered the costs of the applicant's solicitor and the fees and expenses of counsel. The applicant's solicitor's costs amounted to GBP 150. The hourly rate was GBP 75. Counsel's fee amounted to GBP 4928.91. This comprised fees of GBP 4,841.91 and expenses of GBP 87.00. Counsel's hourly rate was GBP 175.
The Government have made no submissions in respect of the applicant's claim for legal costs and expenses.
The Court recalls that in order for costs and expenses to be recoverable under Article 41 of the Convention, it must be established that they were actually and necessarily incurred, and reasonable as to quantum (Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003‑VIII; D.G. v. Ireland, no. 39474/98, § 128, ECHR 2002‑III). In the present case, the Court notes that the total number of hours' work done by the applicant's representatives reflected the fact that the application has been struck out at a relatively early stage. Consequently, it accepts that these costs and expenses were actually and necessarily incurred. It therefore considers that the applicant's costs and expenses for proceedings before this Court should also be met in full.
The Court thus awards the applicant EUR 5,669.54.
For these reasons, the Court unanimouslyDecides to strike the application out of its list of cases; andHolds
(a) that the respondent State is to pay the applicant EUR 5,669.54 (five thousand six hundred and sixty-nine euros and fifty four cents), plus any tax that may be chargeable, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy