AS TO THE ADMISSIBILITY OF
Application No. 22471/93
by Kailash Kaur SINGH
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 6 September 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 10 March 1993 by
Kailash Kaur SINGH against the United Kingdom and registered on
18 August 1994 under file No. 22471/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Indian citizen born in 1955 and resident in
Ambala, India. The applicant is represented before the Commission by
Ms. Nuala Mole of the AIRE Centre, London.
The applicant entered the United Kingdom in April 1984 with leave
to stay as a visitor for 3 months. Her five minor children accompanied
her. The applicant's husband arrived in May 1984 with temporary
permission to stay. An application for political asylum was made on
behalf of the family after Mrs. Gandhi's assassination on the ground
that as Sikhs the family would face persecution. It was alleged that
the family's property in India, including their house and business had
been destroyed in disturbances and that the applicant's brother-in-law
had been killed.
On 8 January 1986, the applicant gave birth to a sixth child.
In March 1986, the asylum application was refused and the appeal
to the Chief Adjudicator turned down in November 1986 on the basis that
the family had no well-founded fear of persecution if returned to
India.
On 21 January 1988, two separate notices of intention to deport
were served in respect of the applicant's husband and of the applicant
with her children.
On 19 June 1989, the family's appeals against deportation were
dismissed by an Adjudicator.
On 9 August 1989, the applicant's seventh child was born.
On 8 September 1989, the application to the Immigration Appeal
Tribunal for leave to appeal was refused.
On 2 January 1990, deportation orders were signed in respect of
the applicant, her husband and children.
The family moved to Nottingham and though the Secretary of State
was informed by the applicant's husband employer, the Sikh Temple, the
letter was misfiled and the family was considered by the Home Office
as having gone into hiding.
On 24 January 1991, the applicant's husband was arrested.
On 8 July 1991, the applicant's 6 minor children were made wards
of court on the application of the applicant's eldest daughter G. who
submitted that the applicant was incapable of caring for the children
because of her poor health. G. was given care and control of the
children who had been living in her care already. The applicant, who
was living with a relative apart from the children, did not oppose the
application.
On 8 July 1991, the applicant's husband was deported to India.
The applicant's own removal was postponed pending the outcome of the
wardship proceedings.
On 23 August 1991, the district judge discharged the wardship as
an abuse of process aimed at circumventing immigration controls.
On 17 October a judge of the Family Division of the High Court
upheld an appeal and ordered the wardship to continue until the
Secretary of State had obtained a deportation order against the eldest
daughter and the time for all appeals against the order had expired.
On 5 December 1991, the applicant made an application to the Home
Office for exceptional leave on the basis of her poor psychological
health and that forced separation from her children would be in
violation of Article 8 of the Convention.
On 11 June 1992, the Secretary of State decided that the
circumstances of the applicant's case were not compelling or
exceptional enough to revoke the deportation order. On 17 June 1992,
the Home Office informed the applicant that they intended to deport her
without her children.
On 22 June 1992, the applicant attempted suicide. The applicant's
representatives requested the Home Office to reconsider their
decision. An extension was granted until 31 July 1992 for reports to
be presented. Psychiatric, social worker and school reports were
presented on 31 July 1992.
On 18 September 1992, the application for judicial review of the
decision not to defer removal was refused. The applicant was deported.
COMPLAINTS
The applicant submits that her deportation constitutes a
violation of her right to respect for her family life under Article 8
of the Convention. She is now separated from her children. The two
youngest children born in England cannot be deported. The children may
not be removed from the country without the permission of the court.
The children's guardian G. will not consent to seeking the permission
of the court in respect of the three eldest children since they do not
wish to go to India. Further, the children in any event have been
settled in the United Kingdom for some years and while they speak
Punjabi they cannot read or write it. Most of their relatives are in
the United Kingdom and they have little incentive to return voluntarily
to India. The applicant is surviving with her husband in India with
great difficulty since the family's property was destroyed in the
disturbances which followed the assassination of Mrs. Gandhi.
Accordingly, the measure of deportation was, in her submission, not
proportionate to any legitimate aim of immigration control.
THE LAW
The applicant complains that the deportation constituted a
violation of her right to respect for ther family life contrary to
Article 8 (Art. 8) of the Convention which provides as relevant:
"1. Everyone has the right to respect for his ... 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 Commission recalls however that the under Article 26
(Art. 26) of the Convention it may only deal with a matter after all
domestic remedies have been exhausted according to the generally
recognised rules of international law.
The Commission notes that the applicant's complaint is based on
the separation from her children which has resulted from her
deportation. The Commission recalls that until the children were made
wards of court the children were to be deported in the company of their
mother. The Commission notes that the applicant did not oppose this
wardship application. Further it remains open to her as a party in the
wardship proceedings to apply to the court for permission for them to
rejoin her and her husband.
The applicant has consequently not exhausted the remedies
available to her under United Kingdom law in respect of her complaints.
Moreover, an examination of the case does not disclose the existence
of any special circumstances which might have absolved the applicant,
according to the generally recognised rules of international law, from
exhausting the domestic remedies at her disposal.
It follows that the applicant has not complied with the condition
as to exhaustion of domestic remedies and her application must be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
To the extent that the applicant's complaints might imply that
she should be allowed to remain in the United Kingdom with the children
whether or not they are wards, the Commission recalls that Article 8
(Art. 8) of the Convention does not guarantee a right, as such, to
enter or remain in a particular country (see eg. Nos. 9088/80,
Dec. 6.3.82, D.R. 28 p. 160 and 9285/81, Dec. 6.7.82, D.R. 29 p. 205).
The applicant and her older children were born in India and lived there
until 1984. The children understand, though cannot read or write,
Punjabi. The Commission finds no indication on the facts of this case
that the decision of the immigration authorities refusing leave for the
family as a whole to remain constituted a failure to respect the
applicant's family life. This aspect of the case must therefore be
rejected 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) (A. WEITZEL)
Full & Egal Universal Law Academy