AS TO THE ADMISSIBILITY OF
Application No. 26985/95
by Ama POKU and others
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 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
B. CONFORTI
N. BRATZA
I. BÉKÉS
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 31 March 1995 by
Ama POKU and others against the United Kingdom and registered on
6 April 1995 under file No. 26985/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
7 July 1995 and the observations in reply submitted by the
applicants on 5 October 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are named as being:
1. Jason Poku, born on 22 May 1995, is a British citizen and the son
of the second and fourth applicants;
2. Ama Serwah Poku, citizen of Ghana;
3. Jermaine Kessie Adjei, born in 1992, British citizen, child of the
second and fourth applicants;
4. Samuel Kessie Adjei, husband of the second applicant, a citizen of
Ghana, with the permanent legal residence in the United Kingdom
acquired in 1991 by virtue of his earlier marriage to a British
citizen;
5. Michael Fybrace, born in 1986, entitled to British citizenship by
registration as from 10 July 1996,, son of the second applicant by a
previous relationship with the sixth applicant;
6. Owen Fybrace, father of the fifth applicant (with parental
responsibility order), British citizen;
7. Sarah Adjei, British citizen, daughter of the fourth applicant by
previous marriage, born on 14 June 1990.
The applicants are represented by Ms. Nuala Mole of the AIRE
Centre in London. The facts as submitted by the parties may be
summarised as follows.
Ama Poku, the second applicant, was given leave to remain in the
United Kingdom on 16 March 1985. Her leave expired on 30 November 1985.
Ama Poku gave birth to Michael, the fifth applicant, on 10 July
1986. He was the son of Owen Fybrace, the sixth applicant. Owen Fybrace
and Ama Poku had a steady relationship for approximately four and a
half years though did not cohabit.
Ama Poku was apprehended on 12 October 1989 and served with a
notice of intention to deport. Her appeal against the decision to
deport was dismissed on 20 March 1990 and leave to appeal to the
Immigration Appeal Tribunal refused on 18 July 1990.
Jermaine, the third applicant, was born on 16 January 1992. His
father was Samuel Adjei, the fourth applicant.
On 8 February 1994, Ama Poku was arrested and served with a
deportation order.
On 31 August 1994, Ama Poku married Samuel Adjei, the fourth
applicant.
An application was made for judicial review, challenging the
deportation. The application for leave was rejected on 11 October 1994
and the renewed application refused on 1 December 1994.
In January 1995, Ama Poku, who was pregnant, was threatened with
a spontaneous abortion and a shirodkar stitch was inserted in an
attempt to save the pregnancy. She was ordered as much bed rest as
possible. She has a very difficult gynaecological and obstetric
history. She has had six miscarriages, the most recent in 1991 which
had occurred despite the insertion of a stitch. She has never carried
a child to full term. In the case of Michael, her waters broke at 19
weeks and she was hospitalised, the baby eventually being born at 26
weeks, weighing 600 grams and requiring to be kept in an incubator for
3 months and to be given blood transfusions. In the case of Jermaine,
her waters again broke at 19 weeks and the child born prematurely at
29 weeks, weighing 1.29 kg and requiring to be kept in an incubator for
three weeks.
The Court of Appeal refused the renewed application for judicial
review on 10 March 1995 finding that there was no error of law and that
the decision to deport was irrational.
Ama Poku was diagnosed at that time as suffering from gestational
diabetes and she attended the ante natal clinic at St. Thomas's
Hospital for monitoring each week. She also received a scan once per
week.
Directions for removal were issued and a date for deportation set
for 2 April 1995. The Government however gave an undertaking not to
deport Ama Poku for one week pending receipt of further medical reports
on her condition.
On 22 May 1995, Jason was born prematurely (32 weeks). Due to Ama
Poku's worsening condition (hypertension and proteinuria), it had been
to induce labour and following further difficulties, an emergency
caesarian section was performed. Due to respiratory difficulties, Jason
was put on a ventilator for five days and received supplemental oxygen
for a further four days. His health is now good and he is expected to
have a completely healthy outcome. Ama Poku made a good recovery and
was discharged after eight days.
Samuel Adjei was previously married on 15 July 1989. He was
divorced on 30 November 1993. The daughter of the marriage, Sarah,
continues to live with her mother. However, Samuel Adjei has maintained
regular and frequent contact with Sarah since separating from her
mother. In particular, she spends weekends with him if he is not
working and when his shift covers a weekend, he sees her during the
week. During holidays, she spends approximately half the time with him.
After the breakdown of his relationship with Ama Poku, Owen
Fybrace continued to see his son, Michael, approximately once every one
or two weeks.This contact ceased in about mid 1991 but recommenced in
mid 1993, after which Owen Fybrace saw Michael once a week. On the
occasional week, he did not see Michael, he would telephone. Since
October 1995, Owen Fybrace has no seen Michael on a regular basis but
keeps in contact by telephone.
COMPLAINTS
Articles 2 and 3 of the Convention
The deportation is alleged, at the time of introduction of the
application, to have posed an immediate threat to the life of the
unborn child and to the health of Ama Poku, the mother. The applicants
refer to medical reports which indicated that she was not fit to travel
and gave details of the applicant's medical history in regard to
premature delivery. While the deportation was not carried out at that
time, the applicants allege that it imposed inhuman suffering contrary
to Article 3 due to the anguish which the threat of removal in these
circumstances inflicted on Ama Poku.
Article 3 is also invoked in respect of the three children,
Michael, Jermaine and Jason, with regard to the situation of
constructive deportation which might arise if they are obliged to leave
the United Kingdom to accompany their mother.
Article 8 of the Convention
The deportation is alleged to interfere with the right to respect
for the family and private life of all the applicants. The removal of
the second applicant will disrupt the stable family unit in which they
live and if the children accompany her they will lose the benefits of
their entitlement of residence in the United Kingdom and lose contact
with their respective fathers. Samuel Adjei, who is the family's
principal breadwinner, cannot be expected to leave his job and his
earnings are insufficient to allow him to send financial support to
Ghana. Further, Ama Poku no longer has any relatives in Ghana and no
home to go to there.
Article 13 of the Convention
It is alleged that domestic law fails to provide sufficient
protection or remedy in respect of the threatened violations of
Articles 3 and 8.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 31 March 1995 and registered
on 6 April 1995. On 6 April 1995, the Commission (First Chamber)
indicated to the United Kingdom pursuant to Rule 36 of the Commission's
Rules of Procedure that it was desirable in the interests of the
parties and the proper conduct of the proceedings before the Commission
not to deport the applicant, Ama Poku.
The Government's written observations were submitted on
7 July 1995 after one extension of the time-limit fixed for that
purpose. The applicants replied on 5 October 1995.
The Commission prolonged the interim measures pursuant to Rule
36 of its Rules of Procedure on 25 May, 4 July, 13 September and
24 October 1995. On 24 October 1995, the Commission requested
information from the applicants concerning the state of health of Ama
Poku and her baby. Following the submission of information on
7 December 1995, the Commission decided the same day not to prolong its
indication under Rule 36 of its Rules of Procedure.
By letter dated 2 April 1996, the applicants provided further
information.
THE LAW
1. The applicants complain that the proposed expulsion of Ama Poku
posed an immediate risk to the life of herself and the unborn child
(subsequently born and named Jason) identified as the first applicant.
They invoke Article 2 (Art. 2) of the Convention which provides in its
first paragraph that "Everyone's right to life shall be protected by
law."
The Government submit that since no deportation took place before
the first applicant was born this complaint is largely academic.
The applicants submit that Ama Poku would have been deported to
Ghana while pregnant but for the request by the Commission to the
Government to suspend enforcement of the deportation pursuant to Rule
36 of the Commission's Rules of Procedure. They argue that a threat,
which is sufficiently real and immediate, of conduct prohibited by the
Convention may conflict with its provisions.
The Commission notes that according to its case-law under Article
3 (Art. 3) the assessment of whether on expulsion an applicant faces
risk of treatment contrary to that provision must be made in relation
to the time and on the basis of information available when the
expulsion is to take place (see eg. Chahal family v. the United
Kingdom, No. 22414/93, Comm. Rep. 27.6.95 pending before the Court).
Since, as the Government points out, Ama Poku was not in fact deported
before the birth of the first applicant in the United Kingdom, and the
material before the Commission indicates that there is no immediate or
significant risk to health of either Ama Poku or her baby at the
present time, the Commission finds no basis on which the pending
deportation measure can be found to disclose a violation of Article 2
(Art. 2) of the Convention. The Commission does not accept that on the
facts of this case the threat of the deportation by itself in the
circumstances pertaining at the time of the introduction of the
application disclose any appearance of a violation of Article 2
(Art. 2). In that context, it would note that there is no evidence of
any immediate life-threatening effect on the health suffered by Ama
Poku or the baby as a result of the deportation proceedings: the
complications surrounding the birth were anticipated by her
previousmedical history and the applicants have not suggested that the
course of the birth was materially affected in any way. The element of
psychological suffering falls to be examined separately under Article
3 (Art. 3) of the Convention below.
It follows that this complaint must be rejected as manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2.The applicants complain that the threat of the deportation during her
pregnancy inflicted on Ama Poku considerable anguish. The continued
threat of removal or separation from their mother or respective fathers
hanging over the heads of child applicants is also alleged to
constitute inhuman and degrading treatment. The applicants invoke
Article 3 (Art. 3) of the Convention which provides:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Government submit that it would be the choice of the applicants if
the child applicants remain in the United Kingdom rather than accompany
Ama Poku, their mother. The facts of the case, in their view, fail to
reveal any kind of treatment contrary to Article 3 (Art. 3), in
particular, since no physical ill-treatment of Ama Poku by the United
Kingdom is alleged and the circumstances of the case are far removed
from any kind of treatment that can properly be called inhuman or
degrading.
The applicants underline the suffering which Ama Poku was subject to
pending the threat of deportation, describing how she was "hysterical
with fear" of the consequences to her unborn child. As regards the
effect of the proposed deportation on the child applicants at the
present time, the applicants refer to the nature of the measure as
analogous to constructive exile, which punishment is inhuman and
degrading when imposed an innocent child. The prospect of separation
from a parent for a child is also of such a nature and degree as to
raise issues under Article 3 (Art. 3) of the Convention.
The case-law of the Convention organs establishes that ill-
treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3 (Art. 3) of the Convention. Further, the
Court has held that the suffering occasioned must attain a certain
level before treatment can be classified as a inhuman. The assessment
of that minimum is relative and depends on all the circumstances of the
case, such as the duration of the treatment and its physical or mental
effects (see eg. Eur. Court H.R., Ireland v. the United Kingdom,
judgment of 18 January 1978, Series A no. 25, p. 65, para. 162).
In respect of the psychological impact on Ama Poku of the
proposed deportation during her pregnancy, the Commission sees no
reason to doubt the claim that this inflicted on her considerable
anguish. In the absence however of any substantiated effect on her
physical or psychological health, the Commission is not satisfied that
the uncertainty and anxiety engendered by the situation was such as to
reach the minimum level of severity required by Article 3 (Art. 3) of
the Convention.
In respect of the position of the applicant children, the
Commission notes that if Ama Poku is deported, three (Jermaine, Jason
and Michael) will potentially have the choice of accompanying her to
Ghana or remaining without her in the United Kingdom. Having regard to
the different paternal relationships in existence, this may mean that
these children will be either separated from their mother or in the
case of Michael lose the possibility of contact with his natural father
applicant. In the case of Sarah, there is the possibility that her
father will choose to accompany Ama Poku, his wife, to Ghana and she
will cease to enjoy regular and frequent contact with him.
The Commission does not consider that this situation discloses
treatment falling to be classified as inhuman or degrading within the
meaning of Article 3 (Art. 3) of the Convention. Nor does the
Commission regard the possibility that the children might leave the
United Kingdom, where they legally have the right to reside, as
constituting punishment for the purposes of that provision. The
Commission would observe that the implementation of lawful immigration
measures against one member of a family will inevitably entail effects
on the existing relationships with other members of that family. It
considers that it would only in exceptional circumstances, for example,
where there is a substantiated level of intense physical and mental
suffering as a direct result of the implementation of the immigration
measure or where there was a particular aggravating factor (eg.
discrimination as in the East African Asians case, Comm. Rep. 14.12.73
D.R. 78-A p. 5) that an issue would be likely to arise under Article
3 (Art. 3). Where however the essence of the complaint is the impact
of the measure on family relationships, the Commission considers that
the matter is more appropriately to be examined under Article 8
(Art. 8) of the Convention.
The Commission concludes therefore that the facts of the present
case fail to disclose any appearance of a violation of Article 3
(Art. 3) of the Convention and must be rejected as manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicants complain that the proposed deportation of Ama Poku
interferes with their right to their family and private life.
Article 8 (Art. 8) of the Convention provides as relevant:
"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."
The Government refer to the Commission case-law to the effect
that it is compatible with Article 8 (Art. 8) to expect children of
unlawful residents to follow their parents abroad. They point out that
the children are young and of an adaptable age, emphasise Ama Poku's
"very bad immigration history" and submit that the extended family
relationships between Michael and Owen Fybrace and Samuel and Sarah
Adjei are not of such a nature or degree as to outweigh the legitimate
interest in immigration controls.
The applicants emphasise that they are all British citizens or
have a permanent right to reside in the United Kingdom, save Ama Poku.
Previous cases relied on by the Government involved the situation where
both parents had no right to remain and were being deported. Further
it is not reasonable to expect the applicants to continue their family
life in Ghana since the older children are well-settled into the
educational system; Michael will lose regular contact with his father;
Samuel Adjei will lose his legal residence rights in the United Kingdom
and also lose contact with Sarah, his daughter by a previous marriage.
The Commission recalls according to its established case-law that
while Article 8 (Art. 8) of the Convention does not in itself guarantee
a right to enter or remain in a particular country, issues may arise
where a person is excluded, or removed from a country where his close
relatives reside or have the right to reside (see eg. 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. 8.7.82, D.R. 29, p. 205).
However, the Commission notes that 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. The Court
has held that Article 8 (Art. 8) does not impose a general obligation
on States to respect the choice of residence of a married couple or to
accept the non-national spouse for settlement in that country (Eur.
Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985,
Series A no. 94, p. 94, para. 68). The Commission considers that this
applies to situations where members of a family, other than spouses,
are non-nationals. Whether removal or exclusion of a family member from
a Contracting State is incompatible 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
(eg. history of breaches of immigration law) or considerations of
public order (eg. serious or persistent offences) weighing in favour
of exclusion (see eg. Nos. 9285/81, Dec. 6.7.82, D.R. 29 p. 205 and
11970/86, Dec. 13.7.87 unpublished).
The Commission recalls that in this case all the applicants, save
Ama Poku, are either British citizens or have a permanent right to
remain in the United Kingdom. The Commission notes however that in
previous cases the factor of the citizenship has not been considered
of particular significance (eg. No. 11970/86, dec. 13.7.87,
unpublished, where the Commission found it compatible with Article 8
(Art. 8) to expect children of unlawful overstayers to follow their
parents even if they had acquired theoretical rights of abode in the
deporting country; and Nos. 23938/94 Sorabjee v. the United Kingdom,
dec. 23.10.95 and 24865/94 Jaramillo v. the United Kingdom dec.
23.10.95, where the Commission found no material distinction as to
whether the children had acquired citizenship by ius soli or ius
sanguinis).
As regards her husband, Samuel Adjei and their two children Jason
and Jermaine, the Commission notes that there are no obstacles
effectively preventing them from accompanying Ama Poku and establishing
their family life in Ghana. The Commission has had regard to the
adaptable ages of the children, aged four and one respectively. As
regards however Samuel Adjei's relationship with his daughter Sarah by
another marriage, the Commission observes that if he decides to
accompany Ama Poku, his wife, this will interrupt the frequent and
regular contact which he enjoys with Sarah who lives with her mother
in the United Kingdom. The Commission recalls however that Samuel Adjei
and Ama Poku married in August 1994 when she had already been subject
to immigration proceedings and a deportation order had been served. He
must accordingly be taken to have been aware of her precarious
immigration status and the probable consequential effects on his other
family relationships by the enforcement of the deportation order. While
his daughter Sarah may also claim that her family life is affected and
cannot be said to be in the same position as her father, the Commission
considers that her situation also flows from the choice exercised by
her father rather from any direct interference by the State with her
family relationships. In this respect, her situation can be
distinguished from that of the child in the Berrehab case (Eur. Court
H.R. Berrehab judgment of 21 June 1988, Series A no. 138) where the
father himself was the subject of the expulsion measure by the State
which was found to disclose a violation of their right to respect for
for family life.
As regards Ama Poku's son Michael and the effect on his
relationship with his father Owen Fybrace, the Commission notes that
contact has been somewhat irregular and now appears to have diminished
to contact by phone only. The resulting effect on their existing
"family life" if he left would accordingly appear to be minimal. While
Michael is older than Jason and Jermaine and has been integrated into
the United Kingdom school system, the Commission finds no indication
of any factor which would effectively prevent him from adapting to life
with his family elsewhere.
The Commission finds that there are no elements concerning
respect for family or private life which in this case outweigh the
valid considerations relating to the proper enforcement of immigration
controls. It concludes that the removal does not disclose a lack of
respect for the applicants' rights to family or private life as
guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
4. Finally, the applicants invoke Article 13 (Art. 13) of the
Convention, which provides that :
"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 Commission recalls however that Article 13 (Art. 13) does not
require a remedy under domestic law in respect of any alleged violation
of the Convention. It only applies if the individual can be said to
have an "arguable claim" of a violation of the Convention (Eur. Court
H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.23,
para. 52).
The Commission finds that the applicants cannot be said, in light
of its findings above to have an "arguable claim" of a violation of
their Convention rights.
It follows that this complaint must be dismissed as 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)
Full & Egal Universal Law Academy