AS TO THE ADMISSIBILITY OF
Application No. 25073/94
by Hammond Kwaku LARBIE
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 28 February 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 17 June 1994 by
Hammond Kwaku LARBIE against the United Kingdom and registered on
2 September 1994 under file No. 25073/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Ghanaian citizen born in 1954. He entered the
United Kingdom in 1984, and now runs a freight shipping business. He
has had indefinite leave to remain in the United Kingdom since
11 December 1990. He is represented before the Commission by
Ms. H. Amoo-Gottfried, a solicitor, and by Ms. J. Asher, a barrister.
The facts of the application, as submitted by the applicant's
representative, may be summarised as follows.
The applicant met his wife, F, on 6 June 1991. A child was born
on 20 November 1992, and the couple married on 16 April 1993.
F had entered the United Kingdom in 1985, with leave to enter for
six months as a visitor. She did not seek to extend her leave until
1988, when she applied for leave to remain on the basis of her marriage
to a British citizen, a Mr. Taylor. The Immigration Service
established that F and Mr. Taylor did not live together, and F's
application was refused on 6 September 1990. She was warned of her
liability to deportation. In January 1991, F was unable to say where
her husband was, and could not give any addresses where they had
previously lived. The Immigration Service suspected that the marriage
had always been a sham, and F was served with a notice of intention to
deport her for failing to comply with previous instructions to leave
the United Kingdom. F appealed, and an application for asylum was
made. The asylum application was refused on 10 June 1992 on the ground
that the Provisional National Defence Council - with which F's former
boyfriend had been involved - had become supportive of the government,
and because F herself was not a member of any organisation or in any
danger in Ghana. The appeal against the notice of intention to deport
was dismissed on 20 April 1993. In his decision of 20 April 1993, the
adjudicator said that the "appeal ... has seemed to amount to an abuse
of these procedures".
On 21 April 1993 F applied for leave to remain in the United
Kingdom as the wife of the applicant, and as a result of this
application, a deportation order made on 29 July 1993 pursuant to the
decision of 20 April was not served.
On 27 October 1993 F's (and the applicant's) MP wrote to the
Secretary of State about the case. Amongst other things, he wrote "I
understand Mr Larbie runs a successful shipping company employing seven
staff".
On 26 November 1993 the Secretary of State wrote to the MP. He
wrote:
" [F's] case was fully reviewed as a consequence of her marriage
on 16 April to a person settled here and the presence in the
United Kingdom of a child of the relationship. However, in
reviewing the case, account was taken of the fact that Mrs Larbie
has on her own admission lived in the United Kingdom for eight
years of which only six months has been with extant leave.
Furthermore, her latest marriage only took place after she had
been served with a notice of intention to deport her. Her
husband is a Ghanian, who has lived in the United Kingdom for
five years and having lived the majority of his life in Ghana,
he can reasonably be expected to readapt to living there, as can
their young child.
I have had Mrs Larbie's case considered fully and carefully in
the light of all these circumstances, including the fact that Mrs
Larbie is now expecting a second child, but I am not prepared to
revoke the deportation order against her. Her removal from the
United Kingdom will be enforced as soon as the necessary
arrangements are made. If her husband wishes to do so, he may
accompany her on her deportation, if necessary at public expense.
Her child's fare will also be met at public expense if
necessary."
An official of the Immigration Service wrote to the F's
solicitors on 7 April 1994. He repeated the substance of the Under
Secretary's letter of 26 November 1993, and declined to defer the
removal directions which had been set for 8 April 1994.
In July 1994 F applied, out of time, for judicial review of the
letters of 26 November 1993 and 7 April 1994. The application for
leave was refused on 27 July 1994, Mr Justice Ognall holding that the
Secretary of State had not failed to take into account all relevant
considerations. In particular, he noted that the Secretary of State
had borne in mind the difficulties the applicant would face if he had
to choose between returning to Ghana with F or continuing to run his
business in London.
F's renewed application for leave was refused by the Court of
Appeal on 8 September 1994. The Court of Appeal took note of the
letter of 27 October 1993 from F's MP to the Secretary of State in
which reference was made to the applicant's business.
F's removal, which had been suspended pending the judicial review
proceedings, was set for 11 September 1994, and she and the baby (born
on 31 December 1993) returned to Ghana on 10 September 1994. The
applicant paid for her ticket. The elder child stayed in the United
Kingdom with the applicant.
On 15 September 1994 the applicant's representative requested the
Secretary of State to revoke the deportation order and to allow F to
re-enter the United Kingdom. The applicant's representative states
that the Secretary of State refused to revoke the deportation order on
14 November 1994, and that an appeal has been entered. No copy of the
decision of 14 November 1994 or any subsequent appeal has been
submitted.
COMPLAINTS
The applicant alleges violation of Articles 3 and 8 of the
Convention.
Under Article 3 of the Convention, the applicant complains that
the Secretary of State might have misunderstood the position of F's
former boyfriend: he had in fact been accused of involvement in a plot
to kill the chairman of the Provisional National Defence Council,
rather than being on the same side as the Council. The applicant
requested the application of Rule 36 of the Commission's Rules of
Procedure.
Under Article 8 of the Convention, the applicant considers that
the removal of F interferes disproportionately with his family life.
He underlines that he has indefinite leave to remain in the United
Kingdom, and that both children hold British passports. He accepts
that he was aware of F's immigration status when they met and married,
but considers that the immigration authorities nevertheless failed to
give sufficient weight to the existence of his business interests in
the United Kingdom. In particular, he points to the fact that he runs
the business with a partner, and that they employ a number of permanent
and temporary staff, whose interests should also have been taken into
account in determining whether to grant F permission to remain.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 June 1994 and registered on
2 September 1994.
On 9 September 1994 the President of the Commission refused the
applicant's request for Rule 36 of the Commission's Rules of Procedure
to be applied.
THE LAW
1. The applicant alleges F's deportation to Ghana to be in violation
of Article 3 (Art. 3) of the Convention. Article 3 (Art. 3) provides
as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission notes that the present application has been
brought by the applicant, rather than by F. Whilst the applicant is
undoubtedly affected by F's having to leave the country, that is a
matter for the Commission to consider under Article 8 (Art. 8) of the
Convention.
No risk of the applicant being subjected to torture or inhuman
or degrading treatment in Ghana has been alleged or made out.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also alleges a violation of Article 8 (Art. 8) of
the Convention. He considers that the interference with his family
life was not necessary in a democratic society. He does not accept
that the domestic authorities properly weighed the various factors
involved, in particular the difficulties which would be caused if he
was in effect required to follow his wife and their children to Ghana.
Article 8 (Art. 8) of the Convention provides, so far as relevant, as
follows:
"1. Everyone has the right to respect for his ... 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."
The Commission recalls that Article 8 (Art. 8) of the Convention
does not in itself guarantee a right to enter or remain in a particular
country, although issues may arise where a person is excluded, or
removed from a country where his close relatives reside or have the
right to reside. The State's obligation to admit to its territory
aliens who are relatives of persons resident there will vary according
to the circumstances of the case: whether removal or exclusion of a
family member from a Contracting State is compatible with the
requirements of Article 8 (Art. 8) will depend on a number of factors -
the extent to which family life is effectively ruptured, whether there
are insurmountable obstacles in the way of the family living in the
country of origin of one or more of them, whether there are factors of
immigration control or considerations of public order weighing in
favour of exclusion (see Sorabjee v. the United Kingdom, No. 23938/94,
Dec. 23.10.95, with further references).
The Commission notes the applicant was aware of F's immigration
history and the pending deportation order when they married, and he
must have been aware that her continued stay in the United Kingdom was
precarious. As to the children, who hold British passports, the
Commission notes that the elder child remained in the United Kingdom
when F left. If the applicant chooses to stay in the United Kingdom,
the younger child will be able to join him if and when her parents
decide.
The Commission does not under-estimate the problems for the
applicant - and for his business and its employees in particular - if
he wishes to join F and their younger child in Ghana, but in the view
of the Commission those problems cannot be regarded as the direct
responsibility of the United Kingdom under the Convention. The
applicant was able to raise this matter before the domestic
authorities: the matter was raised on judicial review, and the
Divisional Court found that the Secretary of State had considered it.
The Commission is unable to accept that the applicant's business
interests, and those of his employees, should have prevailed over the
interests of immigration control or that the authorities failed to give
adequete weight to this aspect. Moreover, it remains the case that the
applicant is a Ghanaian national, and has not submitted that - apart
from the business aspects - life would be particularly difficult for
him there.
The Commission concludes that F's having to leave the United
Kingdom does not disclose a lack of respect for the applicant's right
to respect for his family life as guaranteed by Article 8 para. 1 of
the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
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