Application No. 27559/95
by T.O. A.
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 8 July 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 17 March 1995 by
T.O. A. against the United Kingdom and registered on 9 June 1995 under
file No. 27599/95;
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
14 January 1997 and the observations in reply submitted by the
applicant on 9 April 1997;
- the agreement between the parties;
Having deliberated;
Decides as follows:
THE FACTS
The applicant was born in 1985. When he applied to the Commission
he was a Ghanaian citizen with pending registration as a British
citizen. On 3 October 1996 he was registered as a British citizen. He
resides in London. Before the Commission he is represented by Bindman
and Partners, solicitors practising in London.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
The applicant's mother B., a Ghanaian citizen, entered the United
Kingdom in October 1982 as a visitor with leave to remain for one month
with a prohibition against taking employment. She remained after her
leave had expired and entered employment as a machinist. B.'s husband,
the applicant's father, also a Ghanaian citizen, was killed in a road
accident in Ghana shortly after the applicant's birth.
B. has seven children, one who was born and lives in Ghana with
her deceased husband's elderly mother, and six others, including the
applicant, who were all born in the United Kingdom and who live with
and are supported by B. in London. The applicant is her second child.
In 1991, the father of her third and fourth children was deported back
to Ghana. He has never provided any support for his children. B. has
had no contact with the father of her fifth child, a Canadian citizen.
Her sixth and seventh children were born in October 1995 and June 1996
after the present application to the Commission. B. has a brother who
lives in London who provides her with some financial support, and a
sister who lives in the USA. Both of B.'s parents are dead.
On 6 May 1990, more than seven years after having entered the
United Kingdom, B., who had come to the attention of the immigration
authorities, was interviewed under caution and served a notice of
intention to deport her.
An appeal against this decision before the Adjudicator was
dismissed on 10 September 1991. The Adjudicator found that she had
remained in the United Kingdom without authority since 1982. As
regarded her personal circumstances, he considered that she was of an
age when she could easily readjust in Ghana; that she would be able to
return to the town of Kumasi where she had lived previously and where
she had family connections, including the father of her third and
fourth children and her mother-in-law; and that she had an occupation
as seamstress. As regarded the children, he noted that they were fit,
save one child who had a minor problem of a squint currently undergoing
treatment. He found the younger ones would have no difficulty in
adjusting to life in Ghana and that in Kumasi, a town where most people
spoke English, there would be no language problem. He concluded, having
balanced the personal circumstances against the need to maintain
effective immigration control, that the applicant had not established
that an exception should be made. No application for leave to appeal
was submitted to the Immigration Appeal Tribunal. On 5 March 1992, a
deportation order was signed against her.
On 16 June 1992, representations were submitted to the Secretary
of State for the Home Office through B.'s Member of Parliament raising,
inter alia, the fact her children in the United Kingdom had never been
served with a deportation order. In a letter dated 14 August 1994 the
Secretary of State replied:
"... we prefer not to serve the dependent children of deportees
with deportation notices in order to avoid children leaving under
the stigma of having themselves deported... we expect (B.) to
take the children with her rather than to subject them to
deportation procedures which could otherwise be avoided."
Removal directions were set on a number of occasions but were
deferred for a number of reasons: B.'s pregnancy and birth of her sixth
child, medical treatment being undergone by another of her children,
B. moving house with her children in breach of a restriction order, and
for judicial review proceedings to be heard in 1995.
In response to further removal directions set for B. and four
children on 15 August 1994, B.'s solicitors wrote again to the
Secretary of State submitting that the children could not be deported
since they were entitled to remain and that their mother, their sole
carer, should not be removed. By a letter dated 5 September 1994 the
Secretary of State replied:
"The rights of the children were fully investigated. However,
they are not British Citizens and do not have the right of abode
here and they will be expected to accompany their mother, if
necessary at public expense."
On 8 February 1995, B. made an application in the High Court for
leave to apply for judicial review challenging the decisions made by
the Secretary of State on 15 August 1994 and on 5 September 1994. It
was alleged that there had been a failure by the Secretary of State to
take account of, inter alia, the fact that the applicant would be
eligible to apply for British citizenship on 15 February 1995 when
deciding to uphold the deportation order against B. The application was
refused and was renewed in the Court of Appeal on 15 March 1995. The
application was again refused.
On 3 October 1996, the applicant was registered as a British
citizen pursuant to section 1 (4) of the British Nationality Act 1981.
On 14 January 1997 the Home Office took a decision to make
deportation orders against the four oldest siblings of the applicant
residing in the UK, all of whom are minors (respectively aged 9, 7, 4
and 1.5 years). Notice of appeal has been lodged in all four cases.
COMPLAINTS
The applicant claims that the decision to remove his mother from
the United Kingdom constitutes a violation of his rights under
Articles 3, 8, Article 2 of Protocol No. 1 and Article 13 of the
Convention.
1. The applicant complains that the proposed removal of his mother
to Ghana violates Article 3 of the Convention. The applicant claims
that if he was to follow his mother to Ghana he would be required to
adapt to an entirely new environment and that in light of his age and,
in effect his exile from the country of his birth, to be so forced to
adapt would constitute ill-treatment and punishment. If he remains in
the United Kingdom, the enforced separation from his mother, he
submits, would also constitute a violation of Article 3.
2. The applicant complains under Article 8 of the Convention that
the said removal will interfere with his right to a family life and a
private life. He claims that the proposed deportation of his mother
constitutes the constructive deportation of himself, and asserts that
he has British citizenship and has the right of abode in the United
Kingdom, where he was born, bred and is being educated. He will lose
as a result the benefits of the health, education and welfare services
of his own country, his friends and the culture he has grown up in. The
applicant has never been to Ghana and has no knowledge of any other
language than English. While the applicant could theoretically remain,
the separation from his mother, his only surviving parent, would have
damaging psychological effects. It is likely that he would have to be
taken into local authority care and it is presently unforeseeable, in
light of his mother's immigration history, that she would be granted
entry clearance to travel and visit him. The applicant submits that the
measure by the Secretary of State to uphold his mother's deportation
order was accordingly disproportionate and harsh.
3. The applicant also complains under Article 2 of Protocol No. 1
that, should he be removed to Ghana, he will be deprived of education
in British schools and will be unable to afford education at a similar
standard. He complains that he has been educated in English all his
life and that his inability to speak any Ghanaian languages will
disadvantage him further. If, when he is of an age to return, he does
so it is doubtful that he will qualify to attend university.
4. Further, the applicant complains under Article 13 of the
Convention that there is no effective remedy in respect of the removal.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 March 1995 and registered
on 9 June 1995.
On 16 October 1996, the Commission decided to communicate the
application to the respondent Government.
The observations of the respondent Government were submitted on
14 January 1997. The applicant replied on 9 April 1997, after an
extension of time-limit.
The Commission decided on 21 January 1997 to grant the applicant
legal aid.
On 4 March 1998 the Commission decided to hold a hearing on the
admissibility and merits of the case.
Following an exchange of correspondence between the parties, an
agreement was reached whereby the deportation order against the
applicant's mother was removed, the mother was granted indefinite leave
to remain, and the deportation proceedings against the applicant's
siblings were discontinued. The Government agreed to pay the
applicant's reasonable costs, and the applicant agreed to settlement
of the case.
REASONS FOR THE DECISION
In view of the agreement between the parties, the Commission
notes that the matter has been resolved within the meaning of
Article 30 para. 1 (b) of the Convention.
The Commission finds no special circumstances regarding respect
for human rights as defined in the Convention which require examination
of the application to be continued, in accordance with Article 30
para. 1 in fine of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy