FOURTH SECTION
DECISION
Application no. 19159/08
by Marlyse Bienvenue MALLA
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 6 September 2011 as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Ljiljana Mijović,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 18 April 2008,
Having deliberated, decides as follows:
PROCEDURE
The applicant, Ms Marlyse Bienvenue Malla, is a Cameroonian national who was born in 1974 and lived in Douala, Cameroon. She was represented before the Court by the AIRE Centre. The United Kingdom Government (“the Government”) were represented by their Agent, Ms L. Dauban of the Foreign and Commonwealth Office.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant arrived in the United Kingdom on 15 March 2005. On 17 March 2005, she made an application for asylum which was refused by the Secretary of State on 13 May 2005. In a decision promulgated on 27 July 2005, her appeal was dismissed by the then Asylum and Immigration Tribunal. On 11 August 2005, a Senior Immigration Judge refused to make an order for reconsideration.
In 2005, the applicant started a relationship with D, a recognised refugee from the Democratic Republic of Congo who had been granted indefinite leave to remain in the United Kingdom. On 22 April 2007, the applicant gave birth to their daughter C. After C was born, the relationship between the applicant and D broke down.
On 27 November 2007, immigration officials arrested the applicant and C at their home and transferred them to Yarl’s Wood Immigration Removal Centre to effect their scheduled removal as failed asylum seekers from the United Kingdom to Cameroon on 1 December 2007. On 28 November 2007, the applicant became ill, fell unconscious and was taken to hospital. As a result of the applicant’s hospitalisation and her inability to care for C at that time, C was taken into the care of Bedfordshire Social Services and placed with foster carers.
The removal directions to Cameroon which had been set to take place on 1 December 2007 were deferred because the applicant was considered to be medically unfit to fly.
On 17 December 2007, C was placed into D’s care with the applicant’s agreement.
Further removal directions to Cameroon which had been set for 6 January 2008 were cancelled because the applicant became disruptive and refused to board the plane. Further removal directions set to take place on 10 January 2008 were cancelled when the applicant lodged an application for judicial review at the High Court relying on Articles 2, 3 and 8 of the Convention. On 30 January 2008, the High Court dismissed her application for permission to apply for judicial review.
On 31 March 2008, the applicant submitted a fresh claim to the Secretary of State relying, inter alia, on Article 8 of the Convention and claiming that her removal to Cameroon without her daughter C would be disproportionate.
On 14 April 2008, the applicant was removed to Cameroon. After her removal to Cameroon, the applicant submitted an application to the Court complaining about her removal to Cameroon and her separation from her daughter C.
B. Subsequent developments
In a letter dated 5 May 2010, the Judge appointed as Rapporteur under Rule 49 § 2 of the Rules of Court decided that further information was required and asked the Government of the United Kingdom to respond to various factual questions in accordance with the provisions of Rule 49 § 3 of the Rules of Court. In a letter dated 7 June 2010, the Agent of the Government of the United Kingdom responded to those questions and informed the Court, inter alia, that the Government had been aware that the applicant would be removed without C; that C had been placed in the care of D because the applicant had refused to care for her and had agreed that D should care for her if she was removed from the United Kingdom; and that the applicant’s fresh claim of 31 March 2008 had been responded to and rejected in a letter dated 4 April 2008. In respect of the applicant’s separation from C, that letter had stated:
“I can assure you that full consideration was given to this issue prior to any removal directions being set. In cases such as this where families are being separated a great deal of care is taken to ensure the most appropriate course of action is followed, with the child’s welfare being a prime factor for consideration. In this instance it has been decided that the suitable course of action to follow is to seek your client’s removal whilst her daughter remains here with her father. This aspect of the case has received consideration and is not accepted as being a new issue that would give rise to a new claim.”
On 3 September 2010, the Vice-President of the Fourth Section decided that notice of the application should be given to the Government and that the Government should be invited to submit written observations on the admissibility and merits of the application.
In a letter dated 31 January 2011, after the communication of the case to the Government but before the parties’ observations had been exchanged, the Agent of the Government entered into friendly settlement negotiations with the applicant.
In a letter dated 23 March 2011, the Agent of the Government confirmed the following:
“The Government would like to make clear that they agree to grant the applicant 3 years’ discretionary leave to enter the United Kingdom under Code 1A of the Immigration Rules. This means that the applicant would have permission to work and would not need the permission of any Government Department before doing so. If the applicant does not already have a National Insurance Number, she would have to contact the Department for Work and Pensions in order to apply for one. She would also be free to use the National Health services, Social Services and other services provided by her local authority.
...
The Government would like to reiterate that the offer of £4,000 included any legal costs and expenses and this was made very clear in the terms of the original friendly settlement proposal, as set out in the letter sent to the Court on 31 January 2011. The Government is not prepared to offer anything more than £4,000 by way of an ex gratia payment.”
In a letter dated 12 April 2011, the applicant’s representatives confirmed that the applicant agreed with the terms of the friendly settlement as set out above but that the applicant was attempting to obtain a passport from the Cameroonian authorities to obtain the necessary entry visa from the British High Commission in Cameroon.
In a letter dated 15 July 2011, the applicant’s representatives confirmed that the applicant had arrived in the United Kingdom on 30 June 2011; that she had received in her passport an endorsement indicating that she had leave to remain in the United Kingdom for three years; and that she had received the ex gratia payment from the Government. In the circumstances, the applicant agreed to the case being struck out of the Court’s list of cases.
COMPLAINT
The applicant complained about her removal to Cameroon which separated her from her daughter.
THE LAW
The Court takes note of the friendly settlement reached between the parties and observes that the applicant has confirmed that she has no intention of pursuing her application before the Court, subsequent to her grant of three years’ leave to remain in the United Kingdom and an ex gratia payment of GBP 4,000, inclusive of her legal costs and expenses.
In the circumstances, the Court considers that the requirements of Article 37 § (1) (a) have been met. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. Accordingly, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Fatoş AracıLech Garlicki
Deputy RegistrarPresident
Full & Egal Universal Law Academy