The European Commission of Human Rights sitting in private on 5 March
1986 the following members being present:
MM. C. A. NØRGAARD, President
G. SPERDUTI
J. A. FROWEIN
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
Mr. H. C. KRÜGER Secretary to the Commission
Having regard to Art. 25 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (art. 25);
Having regard to the application introduced on 28 November 1984 by
A.M. and A.M. against the United Kingdom
and registered on 4 December 1984 under file N° 11273/84;
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 first applicant is a Cypriot citizen of Turkish origin born in
1954 and resident in London. The second applicant is his sister, a
Turkish Cypriot, born in 1949 and resident in Essex.
They are represented before the Commission by Messrs Rose and Birn,
Solicitors, London.
The facts according to the applicants and the documents submitted by
them may be summarised as follows:
The first applicant went to the United Kingdom as a visitor for one
month in 1973 and remained unlawfully. He married a British citizen
in 1976 and applied for leave to remain, which was refused in May
1977. Temporary, exceptional leave was then granted and extended
until June 1980. The marriage broke down, but the applicant remained
unlawfully in the country. He was thus about three years lawfully in
the United Kingdom, the rest of the time his stay has been, and still
is, unlawful. In November 1983 the Secretary of State decided to
deport the first applicant. Part of the latter's claim to remain was
based on the tragic circumstances of his sister:
The second applicant is lawfully settled in the United Kingdom, but
her husband has been compulsorily detained in a mental hospital since
1976 and his chances of recovery are remote. She has two children
born in 1970 and 1972 respectively. The eldest had a serious car
accident in 1980 from which she has largely recovered, although the
multiple injuries and brain damage suffered have left her in need of
continuous treatment, for example, for possible epilepsy. The other
child is not very healthy and needs medical attention every now and
then.
The second applicant claims that she cannot speak English. She
attended a Turkish primary school in Cyprus and when she arrived in
the United Kingdom she hardly had any contact outside her husband's
family. Therefore she never picked up any English and does not speak
English at all. It is also claimed that the first applicant provides
great assistance to her, both financially and emotionally. He gives
her £30 to £40 cash per week. She is thus dependent on him.
The position of the Secretary of State is that this dependency is
unsubstantiated. The second applicant lives in a three bedroom
council flat and receives welfare benefits and is able to cope; the
health of her husband and children are cared for by the State. At the
material time the first applicant was unable to provide any evidence
of regular financial assistance to her.
On appeal to an Adjudicator on 15 August 1984 consideration was given
to the first applicant's circumstances. It was noted that he would
not find the return to Cyprus easy, having to go to the North although
originating from the South. His marriage had been genuine but had
broken down over four years ago. He has a good job and good character
record. Then there was the plight of his sister. The Adjudicator
commented that the first applicant had been unwise in not
asking the immigration authorities from the start for permission to
stay and look after her. (The first applicant comments that he was
unaware of immigration laws and therefore did not approach the
immigration authorities earlier.) The Adjudicator accepted that he
was "a financial support and of personal assistance" to her. Against
this was his "remarkable disregard for the Regulations from the
outset", little of his long stay in breach of those Regulations being
to his credit. In the circumstances it was considered that the public
interest in his deportation, based on his defiance of immigration
controls, outweighed the compassionate circumstances of the sister and
her family.
This decision was upheld by the Immigration Appeal Tribunal on 18
September 1984.
The Government informed the Commission on 4 February 1985 that, in
view of the Ajudicator and Tribunal determinations, they had decided
to serve a deportation order on the first applicant and effect his
removal to Cyprus.
On 27 March 1985 the applicants' representatives informed the
Commission that the first applicant had married a British citizen on
24 January 1985.
COMPLAINTS
The applicants complain that the decision to deport the first
applicant constitutes a breach of their right to respect for family
life ensured by Art 8 of the Convention (art. 8). It is submitted
that the second applicant and her family are emotionally, financially
and physically dependent on the first applicant. Furthermore the
first applicant cannot return to a part of Cyprus where he has no
roots. Reliance is placed on the Commission's decisions in such cases
as Uppal and Fernandes both against the United Kingdom (Applications
N°s 8244/78 and 9123/80 respectively).
Discrimination in breach of Art 14 (art. 14), read in conjunction with
Art 8 (art. 8), is also alleged on the basis of the first applicant's
race, national or social origin.
The applicants contend that no provision of Art 8 (2) (art. 8-2)
justifies the interference with their family life.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 November 1984 and registered on 4
December 1984.
After a preliminary examination of the case by a Rapporteur, the
Commission decided on 10 December 1984 to seek further information
from the applicants about their case, pursuant to Rule 42 (2)(a) of
the Rules of Procedure. At the same time the Secretary to the
Commission informed the Government of the introduction of the
application, pursuant to Rule 41 of the Commission's Rules of
Procedure.
The applicants submitted certain information on 21 January 1985, which
information has been included in THE FACTS above. On 4 February 1985
the Government informed the Commission of their intention to proceed
with the deportation of the first applicant.
The application was brought to the notice of the Government under
Rule 42 (2) (b) of the Commission's Rules of Procedure on
11 March 1985, following which extensions of the time limit for
submission of observations on the admissibility and merits of the
application were granted on 10 June 1985 and 5 August 1985.
On 23 August 1985 the Government informed the Commission that the
Government had reconsidered the case in the light of the first
applicant's marriage to a British citizen and stated that the first
applicant would therefore be permitted to stay in the United Kingdom,
initially for twelve months and thereafter indefinitely as the husband
of a British citizen. The deportation order against the first
applicant had been revoked on 30 July 1985.
The applicants' representatives on 9 December 1985 stated that they
did not wish to pursue the case.
FINDING OF THE COMMISSION
The Commission has found that there are no reasons of a general
character affecting the observance of the Convention which require
further examination of the application. Accordingly, the Commission
accedes to the applicants' request, made through their
representatives, to proceed no further with the case.
For this reason, the Commission
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)