FOURTH SECTION
DECISION
Application no. 41856/07
by Rose WANGARE NJUGUNA
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 4 May 2010 as a Chamber composed of:
Giovanni Bonello, President,
Nicolas Bratza,
Ljiljana Mijović,
David Thór Björgvinsson,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 26 September 2007,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Rose Wangare Njuguna, is a Kenyan national who was born in 1963 and lives in London. She was represented before the Court by Archer Fields (Incorporating Sasdev & Co.), a firm of solicitors practising in London.
The United Kingdom Government (“the Government”) were represented by their Agent, Ms Yasmine Ahmed, of the Foreign & Commonwealth Office.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant arrived in the United Kingdom on 31 March 1996 and was granted six months' leave to enter as a visitor. She applied for asylum on 19 September 1996. The application was refused on 5 September 2000 but the decision was never served on the applicant or on her legal representatives and she remained in the United Kingdom.
In 2001 the applicant was diagnosed as being HIV positive. She was suffering from an AIDS-defining illness and therefore had an AIDS diagnosis.
In 2002 she entered into a relationship with a man who had Indefinite Leave to Remain in the United Kingdom. On 5 October 2006 the applicant was re-interviewed by the Home Office in respect of the asylum claim she had made ten years earlier. The asylum application was again refused and in a decision dated 19 October 2006 the Secretary of State for the Home Department refused to vary the applicant's leave to enter or remain. On appeal, the applicant did not pursue her asylum claim and relied solely on Article 8 of the Convention. She relied both on her long term relationship with her partner in the United Kingdom and the ten-year delay on the part of the Home Office.
The Immigration Judge appears not to have been aware of the applicant's HIV status. He found as a fact that the applicant had commenced family life in the United Kingdom with her partner in 2002 but concluded that the couple could continue to enjoy family life through telephone calls and such like while she went back to Kenya to apply for entry clearance. Moreover, any interference would be for a limited period and would not breach Article 8 of the Convention.
By a decision dated 22 January 2007 a Senior Immigration Judge refused to order reconsideration and a further application was made to the High Court.
On 27 April 2007 further representations for leave to remain were made on behalf of the applicant. The application was refused in an undated decision served in conjunction with removal directions issued on 27 September 2007.
A detailed medical report on the applicant's HIV status and medical condition dated 24 September 2007 was prepared by Dr Janette Meadway. The report concluded that in view of previous complications with her treatment, the applicant would not be able to access anti-retroviral therapy of the type she required in Kenya and as a consequence her life expectancy would be considerably shortened to less than one year.
COMPLAINT
The applicant complained that her removal to Kenya would violate her right to private and family life under Article 8 of the Convention as there would be a risk of death and suffering while her application for entry clearance to join her partner was determined.
THE LAW
On 22 March 2010 the Government informed the Court that the applicant had been granted Indefinite Leave to Remain in the United Kingdom on 16 February 2010.
On 25 March 2010 the applicant's representative informed the Court that the applicant wanted to withdraw the application.
The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue her application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Fatoş AracıGiovanni Bonello
Deputy RegistrarPresident
Full & Egal Universal Law Academy