The Committee of Ministers, under the terms of Article 32
(art. 32) of the Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter referred to as "the Convention"),
Having regard to the report drawn up by the European
Commission of Human Rights in accordance with Article 31 (art. 31)
of the Convention relating to the application lodged on
7 February 1989 by Mr Aboullah Yousef against the United Kingdom
(Application No. 14830/89);
Whereas on 25 August 1992 the Commission transmitted the said
report to the Committee of Ministers and whereas the period of
three months provided for in Article 32, paragraph 1 (art. 32-1),
of the Convention has elapsed without the case having been brought
before the European Court of Human Rights in pursuance of
Article 48 (art. 48) of the Convention;
Whereas in his application, declared admissible by the
Commission on 8 November 1990, the applicant complained that the
refusal to allow him to re-enter the United Kingdom in order to
facilitate access to his son was in breach of Article 8 (art. 8) of
the Convention and that, contrary to Article 13 (art. 13) of the
Convention, he had not had any effective domestic remedy in respect
of his claim under Article 8 (art. 8);
Whereas in its report adopted on 30 June 1992, the Commission
expressed, unanimously, the opinion that there had not been a
violation of Article 8 (art. 8) of the Convention but that there
had been a violation of Article 13 (art. 13) of the Convention;
Whereas, at the 491st meeting of the Ministers' Deputies held
on 1 April 1993, the Committee of Ministers, agreeing with the
opinion expressed by the Commission, held, having voted in
accordance with the provisions of Article 32, paragraph 1
(art. 32-1), of the Convention, that there had been in this case no
violation of Article 8 (art. 8) of the Convention but that there
had been a violation of Article 13 (art. 13) of the Convention;
Whereas the Committee of Ministers examined the proposals made
by the Commission when transmitting its report as regards just
satisfaction to be awarded to the applicant, proposals supplemented
by a letter of the President of the Commission dated
21 January 1994;
Whereas, at the 510th meeting of the Deputies held on
21 March 1994, the Committee of Ministers decided, in accordance
with Article 32, paragraph 2 (art. 32-2), of the Convention, that
the Government of the United Kingdom was to pay the applicant as
just satisfaction, within three months, 500 British pounds in
respect of non-material damage and 7 100 British pounds in respect
of costs and expenses, namely a total sum of 7 600 British pounds;
Whereas the Committee of Ministers invited the Government of
the United Kingdom to inform it of the measures taken following its
decisions of 1 April 1993 and 21 March 1994, having regard to the
United Kingdom's obligation under Article 32, paragraph 4
(art. 32-4), of the Convention to abide by them;
Whereas, during the examination of the case by the Committee
of Ministers, the Government of the United Kingdom gave the
Committee information about the measures taken in consequence of
the Committee's decisions, which information appears in the
appendix to this resolution;
Whereas the Committee of Ministers satisfied itself that
on 24 March 1995, the Government of the United Kingdom paid the
applicant the total sum of 7 600 British pounds in just
satisfaction,
Declares, having taken note of the measures taken by the
Government of the United Kingdom, that it has exercised its
functions under Article 32 (art. 32) of the Convention in this
case;
Authorises the publication of the report adopted by the
Commission in this case.
Appendix to Resolution DH (95) 246
Information provided by the Government of the United Kingdom
during the examination of the case of Yousef against the United
Kingdom by the Committee of Ministers
On 1 October 1994 a Statement of Changes in Immigration Rules
("the Rules") came into force which changed the practice to be
followed in the administration of the Immigration Acts of 1971 and
1988 for the regulation of entry into and the stay of persons in
the United Kingdom.
Paragraph 246 of the Rules sets out the criteria to be
satisfied for a new category of persons seeking leave to enter the
United Kingdom in order to gain access to a child resident in the
United Kingdom. The new criteria require that the person
concerned:
"- produces evidence that a court in the United Kingdom has
granted him access rights to his child; and
- is seeking leave to enter for the purpose of exercising
access rights to his child; and
- is either divorced or legally separated from the other
parent of the child; and
- intends to leave the United Kingdom at the expiry of his
leave to enter; and
- does not intend to take employment in the United Kingdom;
and
- does not intend to produce goods or provide services within
the United Kingdom, including the selling of goods or services
direct to members of the public; and
- will maintain and accommodate himself and any dependants
adequately out of resources available to him without recourse to
public funds or taking employment; or will, with any dependants, be
maintained and accommodated adequately by relatives or friends; and
- can meet the cost of the onward or return journey; and
- holds a valid United Kingdom entry clearance for entry in
this capacity."
Paragraph 247 of the Rules establishes a twelve month time
limit during which anyone who is granted leave to enter the United
Kingdom under paragraph 246 may remain in the United Kingdom. Such
a person may apply for further leave once the initial twelve month
period elapses provided an access order is still in force.
Those persons who are refused leave to enter the United
kingdom have a right of appeal to an adjudicator and then to the
Immigration Appeal Tribunal and the Court of Appeal by virtue of
section 13 of the Immigration Act 1971.
It is the opinion of the United Kingdom Government that the
creation of this new category of entry clearance, combined with the
right of appeal to an adjudicator, and, if necessary, with an
appeal to the Immigration Appeal Tribunal and the Court of Appeal,
has established a remedy which offers sufficient guarantees of
efficacity to meet the requirements of Article 13 (art. 13) of the
Convention and which will thus prevent the repetition of the
violation found in the present case.
Full & Egal Universal Law Academy