AS TO THE ADMISSIBILITY OF
Application No. 25297/94
by P.P. & others
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 16 January 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. CONFORTI
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 18 November 1994
by P.P. & others against the United Kingdom and registered on
5 December 1994 under file No. 25297/94;
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
15 August 1995 and the observations in reply submitted by the
applicants on 19 October 1995;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a citizen of Jamaica born in 1964 and
resident in Jamaica. The second to fourth applicants are her children
born in 1984, 1989 and 1993. They are or may claim to be British
citizens and live with the first applicant.
The applicants are represented before the Commission by Ms. Kate
Bell, a solicitor practising in London. The facts as submitted by the
parties may be summarised as follows.
The first applicant was born and grew up in Jamaica. She entered
the United Kingdom in March 1988 as a visitor and stayed with
Mr. Powell whom she had known in Jamaica.
Mr. Powell, a British citizen, is the father of the three
children who were born to the first applicant. S., the second
applicant, was born on 15 August 1984 out of wedlock and may claim to
be a British citizen by virtue of her mother's subsequent marriage to
her father. A., the third applicant, was born on 15 January 1993 and
H, the fourth applicant, on 17 October 1993, both of whom acquired
British citizenship at birth due to their mother's marriage to Mr.
Powell.
In 1988, before her visa expired, the first applicant and
Mr. Powell were arrested for possession of cocaine with intent to
supply. The first applicant was charged also with trying to obtain a
passport fraudulently. She received a three month suspended sentence
for the latter. In respect of the drugs offences, she was found guilty
on 24 February 1989 and sentenced to a two year suspended sentence. The
judge made a recommendation of deportation. Mr Powell was sentenced to
five years.
On 17 January 1990, the first applicant married Mr. Powell. He
was released from prison in 1992 but after being convicted for a
similar offence, he was sentenced to a further five year prison
sentence.
On 7 August 1989, the Secretary of State signed a deportation
order. It was not served on the first applicant.
On 3 January 1991, the first applicant applied through UKIAS
(United Kingdom Immigration Advisory Service) to regularise her stay.
No response was received to these representations until 22 October 1993
when the Home Office wrote to UKIAS to inform them the deportation
order would be served in due course.
The first applicant's Member of Parliament made further
representations to the Home Secretary on her behalf in February 1994
and on 26 February 1994 the order for deportation was served on her.
The first applicant's application for leave to apply for judicial
review was dismissed on 27 May 1994.
Further representations to the Home secretary regarding the
children were rejected by letter of 20 June 1994.
On 4 September 1994, the first applicant left the United Kingdom
with her children, S. A. and H. They live in Jamaica.
COMPLAINTS
The applicants complain of a violation of their right to respect
for their family and private life guaranteed under Article 8 of the
Convention. The children had maintained close links with their father
despite his imprisonment, visiting him twice a month in prison. They
enjoy with him a bond amounting to family life. The deportation
interferes with their family life and private life, since inter alia,
they have been sent to a place with which they have no connections and
no prospects. The deportation of the first applicant constitutes
constructive deportation of the children who are British citizens and
have the right of abode in the United Kingdom, where they born bred and
educated. They have lost as a result the benefits of the health,
education and welfare services of their own country and continuing
their relationship with their father and friends in the United Kingdom.
While the children could have remained, their separation from their
mother, the first applicant, would have had damaging psychological
effects. The measure was accordingly disproportionate and harsh.
Further, the measure discloses a violation of Article 3 of the
Convention as the child applicants are required to adapt to
circumstances which cause them adverse psychological consequences and
even deterioration in their physical well-being.
The applicants also make reference to Article 2 of the First
Protocol in relation to the loss of educational opportunities which
they had enjoyed in the United Kingdom.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 November 1994 and registered
on 5 December 1994.
On 6 April 1995, the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
15 August, following the refusal of the Commission on 4 July 1995 to
postpone the examination of the case pending other similar
applications. The applicant replied on 19 October 1995.
On 24 October 1995, the Commission granted the applicants legal
aid.
THE LAW
1. The applicants complain that the children have suffered adverse
psychological consequences and even a deterioration in their physical
well-being since their deportation. They 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 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).
The Commission has examined the material submitted by the
applicants but beyond a reference to rashes suffered by one of the
children does not find any substantiation of the alleged physical
repercussions of the move to Jamaica. There is also no explanation of
the nature or degree of the alleged psychological effects. The
Commission accordingly finds that the complaint does not disclose that
the second, third or fourth applicants have been exposed to treatment
attaining the severity of inhuman or degrading treatment as prohibited
by the above provision.
It follows that these complaints 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 deportation of the first
applicant constitutes a violation of their right to respect for their
family and private life. As a result the second, third and fourth
applicants were required to leave the country of which they are
citizens and in which they have the right to reside.
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 previous case-law to the effect that
there is no breach of Article 8 (Art. 8) if it is reasonable for the
family unit to be maintained abroad. This applies to cases where
children are involved. They submit that it is not unreasonable to
expect the applicants to continue their family life in Jamaica, since,
inter alia, the first applicant is a Jamaican citizen familiar with
Jamaican culture and all the children are still young and could adapt
to Jamaican life. It is submitted that the applicants' family life with
Mr. Powell has been of a limited character, in view of his various
prison sentences and that the first applicant married him in
circumstances when deportation was a realistic prospect. There are, it
is pointed out, no apparent obstacles to Mr. Powell joining the family
in Jamaica on his release from prison and reference is made to the
serious crime committed by the first applicant and the fact that the
applicants were dependent on public funds before they went to Jamaica.
The Government further contend that the concept of "private life"
does not extend to social and economic benefits which may be derived
from residence in a particular country and that the applicants' British
citizenship cannot be interpreted as bestowing on them a private life
right to grow up in the United Kingdom.
The applicants seek to distinguish the earlier Commission case-
law. It is pointed out that these often involved alleged violations of
the rights of the parent who was an illegal immigrant and that no
detailed consideration was given to the child's rights. Also, previous
cases concerned children who had acquired British citizenship by being
born on British soil while their parents were both there illegally: in
this case, pursuant to a change in legislation, the second to fourth
applicants obtained their citizenship, or claim to citizenship, by
virtue of their mother's marriage to their father who is a British
citizen - ius sanguinis rather than ius soli.
In answer to the claim that it is reasonable to expect the
applicants to live in Jamaica, they point out that Mr. Powell, the
husband and father of the family, remains in the United Kingdom serving
a prison sentence and is unable to join them. The departure of the
applicants means that they are totally separated from him and unable
to enjoy such restricted family life as is consonant with detention.
There is no justification for severing all direct contact between the
father and his children, which measure is in fact contrary to the
principles of family re-unification and protection of the welfare of
the children. It is claimed that on his release the Jamaican
authorities are not willing to allow him to enter due to his serious
criminal record and their expectation that the family, most of whom are
British citizens, should make their home in the United Kingdom.
In addition, the applicants dispute that they are of an
"adaptable age", since the move has involved serious interruption to
their settled lives and, for example, the removal of the second
applicant from her schooling at the crucial age of moving from primary
to secondary school. It has also in its effects infringed their
physical and moral integrity. The applicants further argue that it is
unreasonable and disproportionate to expect child British citizens to
tolerate being exiled from the United Kingdom for the duration of their
childhood, in effect, because they are of Jamaican ethnic origin. They
refer to the general principle of international law prohibiting the
expulsion of one's own nationals and that the United Kingdom cannot
justify an interference with Article 8 (Art. 8) which breaches such a
general principle.
Insofar as the applicants claim that the second, third and fourth
applicants are being constructively deported from the United Kingdom
of which they are citizens, the Commission notes that the United
Kingdom has not ratified Protocol No. 4 (P4), which in Article 3
(Art. 3) provides that no-one shall be expelled from the territory of
a State in which he is a national. The Commission may therefore only
examine the extent to which the removal of the first applicant affects
the applicants' right to respect for their family or private life.
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 recalls 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
also 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).
In the present case, the applicant children are ten, five and one
respectively and the latter two particularly will be young enough to
adapt to the change in environment. The Commission finds that the
material provided by the applicants does not disclose that their
physical and moral integrity has been significantly interfered with by
the move. The Commission is of the opinion that there are no
insurmountable obstacles which prevent them from residing with the
first applicant in Jamaica. It recalls that the first applicant, who
had been brought up in Jamaica, entered as a visitor and did not obtain
the necessary permission to settle in the United Kingdom on a longterm
basis. It notes also the criminal offences of which the applicant was
convicted and which led to the recommendation for deportation.
While Mr. Powell, husband of the first applicant and father of
the second, third and fourth applicants, remains in the United Kingdom,
the Commission recalls that he is serving a relatively short prison
sentence and his contacts with the applicants were necessarily
restricted even before they left for Jamaica. The applicants have not
substantiated their claim that there would be obstacles to him
rejoining the applicants in Jamaica on his release. If it was the case
that, due to decisions issued by competent authorities in both the
United Kingdom and Jamaica, it was not possible for the family to live
together, the Commission would find this to constitute a significant
element to be taken into account in the assessment of the compatibility
of a measure of exclusion of part of a family with the requirements of
Article 8 (Art. 8) of the Convention.
In short, 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. The removal accordingly does not exhibit a
lack of respect for the applicants' right to respect for 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.
3. The applicants submit that the applicant children have been
deprived of their right to a British education.
Article 2 of Protocol No. 1 (P1-2) of the Convention provides as
relevant:
"No person shall be denied the right to education ....".
The Commission notes its findings above. In the circumstances of
this case, it considers that the applicants' departure from the United
Kingdom to accompany their mother, the first applicant, cannot be
construed as a deprivation of the right to education.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27, para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
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