AS TO THE ADMISSIBILITY
Application No. 11970/86
by O.and O.L.
against the United Kingdom
The European Commission of Human Rights sitting in private on
13 July 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 February 1986
by O. and O.L. against the United Kingdom and registered
on 7 February 1986 under file No. 11970/86;
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 applicants are brothers born in 1972 and 1979
respectively. They are British citizens by virtue of their birth in
the United Kingdom whilst their parents, Turkish Cypriots, were in the
United Kingdom.
The application is brought on behalf of the applicants by
Messrs. Cecil Altman & Co., Solicitors, London.
The facts as submitted may be summarised as follows:
The applicants' father worked as a clerk in the Logistics
Department of the Cyprus Turkish Contingent in Nicosia, Cyprus,
between 1964 and 1974. His work gave him access to classified
information whereby he learned of Turkish Government plans to invade
Cyprus in 1970/71. As he was opposed to such plans he tried to resign
in 1971, but his resignation was refused. He therefore fled from
Cyprus with his wife using false passports. They were given six
months leave of entry into the United Kingdom, which leave was
extended until October 1972, when the first applicant was born.
In 1972 the applicants' maternal uncle was murdered in
Istanbul. The parents believed this to be politically inspired.
However, the British immigration authorities considered, after
inquiries were made, that this was probably a purely criminal matter.
In 1972 the request of the applicants' parents for further
leave to remain was refused. For fear of what would await them if
returned to Cyprus the parents resolved to remain in the United
Kingdom unlawfully. In an attempt to regularise their immigration
status in 1974 they were arrested and subsequently convicted of
overstaying. Deportation orders against them were issued on
20 October 1974, but not implemented immediately because of the
unsettled situation in Cyprus at that time. Representations were made
on the couple's behalf by three Members of Parliament between 1974 and
1976. The applicants' father has told the British immigration
authorities of his fear of persecution if returned to Cyprus, not only
because of his brother-in-law's murder, but also because of his own
desertion from the Turkish Fighters' Army. Apart from the fact that
the British immigration authorities considered it unlikely that the
killing of the brother-in-law had been politically motivated, their
enquiries also revealed that, if a person deserted before serving two
years, the only action taken would be re-conscription to complete the
remaining period of service. As the applicants' father has served for
much longer than two years, it was not thought that he had anything to
fear on that account.
On learning that the deportation orders were to be implemented
against them, the applicants' parents absconded, remaining untraced
until August 1977. They were detained and deported to Northern Cyprus
on 14 September 1977, accompanied by the first applicant.
The applicants' parents were unable to find accommodation or
employment in Northern Cyprus. They stayed with relations on a
temporary rotating basis. It is claimed that the applicants' father
was detained for about one week, during which he was interrogated and
beaten. He was allegedly accused of passing information to the Greek
Cypriot authorities during his former employment.
The first applicant apparently found the situation in Northern
Cyprus extremely unsettling. Apart from the lack of family home he
was unable to speak Turkish or to establish links with his new
environment. He showed signs of withdrawal and disturbance.
In 1978 the applicants' mother became pregnant. It seems that
in November 1978 the applicants' parents obtained passports under
false names and travelled to the United Kingdom where they were given
leave to enter as visitors. The applicants' father informed the
immigration authorities that he was there on business as a citrus
fruit exporter. They refurbished a house which they had bought prior
to deportation and let it before returning to Cyprus on 18 December 1978.
On 14 February 1979 the applicants' mother, under the false name,
returned to the United Kingdom for a month for medical treatment. On
4 June 1979 she again returned on false papers for medical treatment and
gave birth to the second applicant in July, when the applicants'
father also entered the United Kingdom under a false name and claimed
to be on a business visit to buy cosmetics for a shop in Nicosia. The
couple then overstayed without a trace. Notice of intention to make
deportation orders against the applicants under their assumed name was
sent to the Cyprus High Commission on 18 October 1983.
In November 1983 the applicants' parents were arrested and
declared illegal entrants. In March 1984 a third child, a daughter,
was born to the couple.
In reply to representations by a Member of Parliament, the
Secretary of State stated in a letter of 11 January 1984 as follows:
"Mr. and Mrs. L. have, between them, entered the United
Kingdom illegally in breach of deportation orders by the use
of passports obtained in a different name on no less than
five occasions. As you know, it is normal practice to remove
illegal entrants unless there are exceptional reasons, usually
of a compelling compassionate nature, for not so doing.
I have carefully considered all the circumstances of Mr. and
Mrs. L.'s case in the light of your representations but I am
not persuaded that there are grounds to justify allowing them
to remain exceptionally. Mr. L.'s claim to remain on
political grounds has, as I said earlier, been fully examined
on a previous occasion and found to be without substance.
Furthermore, the birth of children in this country to those
here unlawfully can confer no entitlement on a parent to
remain. The family having enjoyed a higher standard of living
here than they would have achieved in Cyprus (they have been
working since 1979 without paying tax), they are naturally
reluctant to return there now that they have been discovered.
However all but the first 15 months of the time spent in the
United Kingdom by Mr. and Mrs. L. has been in breach of the
immigration laws. I consider that it could be manifestly
unfair to the many people who seek to come here through the
proper channels, but have no claim to do so, if this couple
were allowed to stay and benefit from their contempt for the
immigration control. Finally there is no reason to suppose
that the declaration of independence by the authorities in
the north of Cyprus should directly have any bearing on this
case.
Arrangements for Mr. and Mrs. L.'s removal to Cyprus as
illegal entrants will now proceed, due account being taken of
Mrs. L.'s present medical condition before arrangements are
finalised. Their children will be given the opportunity to
return with them, their fares being met, if necessary, from
public funds."
Subsequently, directions were issued by the Secretary of State
for the removal of the applicants' parents from the United Kingdom. In
May 1984 an appeal was lodged against the directions insofar as they
concerned the destination i.e. Ercan, Cyprus. The appeal was
dismissed by both the Adjudicator (5 October 1984) and the Immigration
Appeal Tribunal (13 December 1984), as the applicants' parents could
not show that they had another country to go to.
Further representations by a Member of Parliament were
rejected by the Secretary of State in a letter dated 12 November 1984.
He decided that he was unable to revoke the deportation orders against
the applicants' parents and grant indefinite leave to remain when
there was no basis in the Immigration Rules to do this and such leave
is similarly refused to many people who never even offended against
the immigration laws. It was accepted that the first applicant, as a
British citizen, could remain in the United Kingdom for his education.
However to visit him the parents would first have to apply for
revocation of the deportation orders against them. He could give no
assurances that such an application would be successful, although
there is a right of appeal against a refusal to revoke a deportation
order.
Throughout 1985 further representations were made on asylum,
on humanitarian and compassionate grounds. These representations were
also unsuccessful and culminated with the Secretary of State's letter
of 5 January 1986 in the following terms:
"In order to qualify for the grant of asylum in the United
Kingdom a person must show that, if he were required to leave,
he would have to go to a country to which he is unwilling to
go owing to a well founded fear of being persecuted for
reasons of race, religion, nationality, membership of a
particular social group or political opinion. Despite
Mr. L.'s assertion that he is still wanted by the Turkish
military authorities, he has admitted that apart from the
incident which took place in 1977, neither he nor any
member of his family subsequently experienced any difficulties
at the hands of those authorities; indeed two of his brothers
work for the Turkish Government. As regards Mr. L.'s
assertion that his interrogators knew of his application
for asylum and that the authorities would know of his present
application, I am afraid that I find this difficult to accept.
Eight years have passed since the incident which Mr. L. has
described and given that he was released without charge, there
is no evidence to suggest that he would now face persecution
if he returned to Cyprus.
I have carefully considered Mr. L.'s case in the light of your
latest representations but I am not persuaded that his fears
of returning to Cyprus are well founded. I have also
considered the children's position again. ... Mr. and Mrs. L.
were fully aware of the possible consequences to them and
their children by choosing to return to the United Kingdom in
breach of the immigration laws. While I have every sympathy
for children involved in cases such as this, I cannot now
accept their position as a compassionate reason for allowing
the parents to remain here. Arrangements will now be made to
remove Mr. and Mrs. L. as illegal entrants, their children
will be given the opportunity to accompany them to Cyprus, at
public expense if necessary."
On 7 February 1986 the applicants' parents and sister were
removed to Northern Cyprus. The applicants were left behind with
their maternal aunt. The aunt is a single parent of a severely
handicapped boy. The applicants claim that she is experiencing
increasing difficulties in looking after all of them. If the present
arrangements break down, the applicants may find themselves in State
care. In the meantime the applicants' parents still reside
temporarily on a rotating basis with relatives. They are also
unemployed. It is, therefore, not possible for the applicants to join
their parents in Cyprus.
The applicants have submitted the psychiatric report of the
Child and Family Department of a health clinic, confirming the limited
care that the "depressed, weary and demoralised" aunt can offer the
applicants. The clinic's consultant psychiatrist found the applicants
to be, inter alia, "British in all senses of the word" and in
desperate need of their parents' support. However she considered that
the applicants' development would be impaired if they have to return
to Cyprus.
COMPLAINTS
The applicants' complaint as submitted is that the deportation
of their parents to Northern Cyprus constituted a breach of Articles 8
and 13 of the Convention.
The applicants contend that, as regards Article 8 of the
Convention, the interference with the family's rights cannot be
justified in the case of children who have the right of abode in a
particular country, who have substantial links with that country and
who are no longer of such adaptable age or disposition that it could be
reasonsable to expect them to follow their parents elsewhere (cf.
No. 8244/78, Uppal v. the United Kingdom, Dec. 2.5.79, D.R. 17 p. 149,
No. 9478/81, Dec. 8.12.81, D.R. 27 p. 243 and No. 9492/81, Family X v.
the United Kingdom, Dec. 14.7.82, D.R. 30 p. 232).
It is submitted that in the present case, both applicants are
young children who are unable even to speak the language of the
country to which their parents have been deported, other than to an
extremely limited extent. Both applicants are at an important stage
of their youth and development and not only require the presence and
guidance of their parents, but also the security and sense of identity
from their accustomed environments. The situation of their parents in
Northern Cyprus is precarious and, from the point of view of the
applicants' future development, unsatisfactory. Neither of the
applicants have any cultural or social identity with Northern Cyprus
and it is submitted on behalf of the first applicant, in particular,
that it is too late in his development for him to establish the
necessary links which will assist him through his adolescent years (as
deemed necessary in the psychiatric report).
Furthermore, it is claimed that the applicants' education will
be very seriously affected if they follow their parents to Northern
Cyprus. This is not necessarily because the Turkish Cypriot
educational system is inferior to the British. Rather, it extends
from the applicants' own circumstances, particularly in the case of
the first applicant, his age and the fact that he is unable to speak
much Turkish. Although there is one school in Northern Cyprus which
teaches in English, it is compulsory for all students (including
foreign students) to pass an annual examination in Turkish, before
they can progress to the next class. It is extremely unlikely that
the first applicant could achieve this. It is probable, therefore,
that his good progress in school in the United Kingdom will be
irreparably damaged and, indeed, it is to be anticipated that he will
regress. It is contended that this important factor indicates that
the first applicant is not of a sufficiently adaptable age to follow
his parents without sustaining severe and irreparable damage to his
development. For all these reasons, the development and fulfilment
of the applicants' personality and the forming of links with others
must necessarily be adversely affected if the applicants are required
to travel to Northern Cyprus (cf. No. 6825/74 Dec. 18.5.76 D.R. 5
p. 86).
The applicants submit that, in all the circumstances, it would
be unreasonable to expect them to follow their parents by reason of
their upbringing and different social and cultural background. They
have no substantial family ties with Cyprus, except for their parents.
Northern Cyprus is an occupied territory beyond the diplomatic
protection of any recognised government and no right of individual
petition under Article 25 of the Convention lies from Cyprus. Although
it is necessary to maintain even-handed immigration controls, the
applicants emphasise the particular circumstances of their case, its
negligible impact on immigration controls and its rarity, given the
impossibility nowadays for children of foreign parents to acquire
British nationality by virtue of their birth in the United Kingdom.
The applicants thus conclude that the interference with their
Article 8 rights is not necessary within the meaning of Article 8
para. 2 of the Convention.
As regards Article 13 of the Convention, the applicants claim
to have no effective remedy for their Article 8 claims, the appeal
procedures only being available to the person to be deported. Their
only remedy was by way of representations through a Member of
Parliament to the Secretary of State. This could not be deemed to be
a satisfactory remedy for the purposes of Article 13.
THE LAW
1. The applicants' principal complaint is that the deportation of
their parents to Northern Cyprus constituted a breach of Article 8
(Art. 8) of the Convention, the relevant part of which provides as
follows:
"1. Everyone has the right to respect for his private and
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."
Whilst the Convention does not guarantee a right, as such, to
enter or remain in a particular country, the Commission has constantly
held that the exclusion of a person from a country where his close
relatives reside may raise an issue under Article 8 (Art. 8) of the
Convention (e.g. No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219, No.
9088/80, Dec. 6.3.82, D.R. 28 p. 160 and No. 9285/81, Dec. 6.7.82,
D.R. 29 p. 205).
In the present case, the Commission first notes that the
applicants' British nationality is exclusively based on the fact that
they were born in the United Kingdom. However, this fact alone cannot
confer rights of abode in that country upon the parents, particularly
when, as in the case of the second applicant, the birth occurred
whilst the parents had no right to reside in the United Kingdom.
It is a striking feature in the present case that the parents
have repeatedly violated British immigration laws by entering the
United Kingdom illegally and by staying there without any right of
residence.
The Commission notes that the parents have themselves created
the present situation by leaving the children behind in the United
Kingdom, where the parents had no right to stay but where they
apparently found the economic and educational opportunities for their
children to be more favourable than in Northern Cyprus. There would
have been no obstacle for the parents to take the children with them
back to Northern Cyprus, while the children were younger and could
more easily have adapted themselves to life there.
Thus, while the Commission considers that the deportation of
the applicants' parents constitutes an interference with the
applicants' right to respect for their private and family life under
Article 8 para. 1 (Art. 8-1) of the Convention, the Commission must, in
considering whether that interference was justified under Article 8
para. 2 (Art. 8-2), attach significant weight to the special circumstances
indicated above. The Commission emphasises the close connection
between the policy of immigration control and considerations
pertaining to public order and finds that these considerations should
be given special weight in a case like the present one, where the
applicants' parents have repeatedly taken measures which breached or
circumvented immigration rules, and where they must to a large extent
be held to be responsible for their present separation from their
children. In such circumstances, the Commission finds it compatible
with Article 8 (Art. 8) to expect the children of unlawful overstayers to
follow the parents, even if those children have acquired theoretical
rights of abode in the deporting country.
The Commission is therefore of the opinion that the
interference with the applicants' right to respect for their private
and family life, which was in accordance with British immigration law,
was justified as being necessary in a democratic society "for the
prevention of disorder" under Article 8 para. 2 (Art. 8-2).
Accordingly, this aspect of the application must be rejected
as being manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicants have also complained that they have no
effective remedies at their disposal for their Article 8 (Art. 8) complaint.
Article 13 (Art. 13) of the Convention provides as follows:
"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."
The present application is brought by children whose interests
must be ensured to a large extent by their parents, except where those
interests conflict. However, in this case the applicants did not have
interests which were in any way contrary to those of their parents.
The parents themselves have had remedies at their disposal which could
deal with the substantive basis of the applicants' private and family
life complaint. The applicants' parents had the possibility of
applying for regular leave of entry, of applying for an extension of
that leave, of appealing to an Adjudicator and Immigration Appeal
Tribunal against any refusal of leave, of challenging and appealing
before the criminal courts the charges of overstaying, of appealing
against the designated place of deportation, of applying for the
revocation of the deportation orders and of appealing to an
Adjudicator and Immigration Appeal Tribunal against a refusal to
revoke those orders. The parents were free to plead their childrens'
position as a compassionate factor to be taken into account by the
various immigration or judicial authorities.
Thus, although these procedures were not available to the
applicants themselves, they were nevertheless vital to the essentials
of their Article 8 (Art. 8) complaint. The Commission finds, therefore, that
adequate remedies were at the disposal of the applicants' family,
remedies which satisfy the requirements of Article 13 (Art. 13) of the
Convention. In these circumstances the Commission concludes that this
aspect of the case is also manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)