AS TO THE ADMISSIBILITY OF
Application No. 14830/89
by Abdullah YOUSEF
against the United Kingdom
The European Commission of Human Rights sitting in private on
8 November 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
Mrs. G.H. THUNE
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 February 1989
by Abdullah YOUSEF against the United Kingdom and registered on 28
March 1989 under file No. 14830/89;
Having regard to:
- reports provided for in Rule 47 of the Rules of Procedure
of the Commission;
- the Commission's decision of 6 July 1989 to bring the
application to the notice of the respondent Government
and invite them to submit written observations on its
admissibility and merits;
- the observations submitted by the respondent Government
on 20 December 1989 and the observations in reply
submitted by the applicant on 6 March 1990;
- the oral hearing held on 8 November 1990;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of Kuwait, born in 1960 and now
resident in Sajat, Kuwait. He is represented before the Commission by
Mr. P. Simm, Solicitor, of the Liverpool Law Centre.
The facts of the present case, as submitted by the parties,
may be summarised as follows:
A. The particular facts of the case
The applicant first entered the United Kingdom in 1978 for the
purpose of nautical studies under the sponsorship of his employers,
the United Arab Shipping Company. He returned on several occasions
between 1979 and 1985 in connection with his studies and training. On
6 July 1985 the applicant married a British citizen. On the basis of
this marriage he was initially granted leave to remain until 13 August
1986. A child of the marriage, Tariq, was born on 15 March 1986.
On 4 February 1986 the applicant was convicted of an offence
under the Theft Act 1968 (Abstracting electricity - fined £100). He
was advised on 20 August 1986 that this conviction would be taken into
account in considering any future application for an extension of his
stay.
On 12 August 1986, he re-applied at the immigration office in
Liverpool for further leave to remain as the husband of a British
citizen. When his wife was interviewed, however, she said that she
intended to divorce him for physical and mental cruelty (treatment
denied by the applicant); she also intended seeking an injunction to
prevent the applicant having access to her and her son. When the
applicant was interviewed he stated that he was unemployed, that he
had not worked for the United Arab Shipping Company for two years,
that he had failed his studies and would not pursue them further and
that the family still lived together, the mortgage and other living
expenses being met from public funds.
While the applicant's re-application was being considered his
wife informed the immigration officer that she had decided not to
proceed with plans to divorce her husband but to make a final attempt
at reconciliation. She added, however, that she would proceed with a
divorce if matters were again to become unsatisfactory. Given his
wife's statements it was decided to grant the applicant a further
period of leave to remain until 13 August 1987.
The applicant travelled to Spain on 1 August 1987. While he
was abroad, his wife attended the Immigration Office at Liverpool and
said that her husband was due to return on 8 August. She wished
action to be taken to prevent her husband gaining access to herself
and their child, Tariq. She stated that she intended to divorce him,
because of his violence towards her, and to leave their home for an
address which she did not wish to disclose before her husband
returned. She added that the home was liable to be repossessed by the
applicant's debtors. She subsequently informed the immigration
officer that she was not certain that she did not want to see her
husband as she had yet to discuss divorce with him and had been unable
to secure alternative accommodation. The applicant claims that his
wife was pressured by immigration officers, for racist reasons, to
take this stance. The applicant arrived at Manchester Airport on 8
August 1987 and sought leave to enter to rejoin his wife. He was
granted temporary admission pending inquiries and, for the convenience
of all parties, responsibility for the case was transferred to the
Immigration Office at Liverpool.
On 1 October 1987, the wife was interviewed and said that her
marriage to the applicant was definitely over and that she had now
left their home. Her solicitors later provided a letter confirming
that she had filed a divorce petition on 23 September and that their
instructions were to pursue it. On 6 October, the immigration officer
interviewed the applicant. He said that his wife was still at their
home. When his wife's earlier statement to the contrary was put to
him he replied, "She told me she would come back. I was told by my
solicitors to (say) that she was living with me." The applicant also
said that he was unemployed with no source of income.
The immigration officer then considered the facts of the case:
The applicant had sought entry in order to rejoin his wife. It was
evident, however, that his marriage no longer subsisted and,
therefore, that each of the parties did not have the intention of
living permanently with the other as a spouse. The officer was
therefore not satisfied that the applicant qualified for admission
under the Immigration Rules and accordingly refused him leave to enter
on 6 October 1987. While in detention pending arrangements for his
return to Kuwait the applicant took an overdose of paracetamol tablets
and he was immediately taken by ambulance to hospital where he was
admitted for observation until 12 October. The Hospital Registrar
opined that there was no evidence to suggest mental disorder or any
lasting ill effects. The applicant was granted further temporary
admission and his solicitors applied for judicial review of the
immigration officer's decision. This application was refused by the
High Court on 3 November 1987. Counsel advised against an appeal to
the Court of Appeal, thus a renewed application for leave was
abandoned.
The applicant had a strong loving relationship with his son
and sought his custody in the divorce proceedings. During those
proceedings the wife openly recognised the good relationship between
the father and the child. Accordingly, interim care and control were
given to the wife, with regular short access visits for the applicant,
supervised by the social services. The applicant exercised supervised
access to Tariq once a week for an hour at a time between November
1987 and October 1988 and then on five occasions under the same
conditions between 1 November 1988 and 23 January 1989. The nature
of the access was restricted because of the impending threat of the
applicant's deportation and the wife's fear that in those
circumstances the applicant might abscond with the child. The
applicant apparently conceded that if he had had freer access to
Tariq he would have absconded with him.
A matrimonial court welfare report dated 10 March 1988 talked
of "a strong bond that exists between father and son". A further
report dated 26 October 1988 talked of the child, Tariq, "relating in
a warm and loving way to both" of his parents. The final welfare
report of 23 January 1989 not only talked of a "strong and
affectionate bond between the father and the child", but clearly
stated that it would have been beneficial to the child if that could
be maintained in more normal circumstances, i.e. without the threat of
the applicant's removal from the United Kingdom which effectively
prevented his reasonable access to the child.
On 30 January 1989 the matrimonial court (Liverpool County
Court) held that it was in the best interests of the child to have
access to his "caring and loving" father, but no access was ordered
because of the applicant's pending removal from the United Kingdom.
The County Court envisaged limited access on agreement by the parents
should the applicant return. On 25 January 1989 the Minister of State
had rejected representations made in November 1988 that the applicant
be allowed to remain in the United Kingdom to ensure access to his son
on the basis of the judgment of the European Court of Human Rights in
the Berrehab case (judgment of 21 June 1988, Series A no. 138).
In a letter of 30 November 1988, the applicant's
representatives at that time, the Liverpool Law Centre, informed the
Home Office for the first time that he had a strong and loving
relationship with another British citizen by whom he had had a child,
Leon, born on 29 August 1987. According to the Law Centre, the
relationship between this lady and the applicant, begun in November
1986, had not developed into a fuller loving relationship until the
applicant and his wife had separated. The Secretary of State was
urged to allow the applicant to remain to continue the relationship
for the benefit of this child. The Minister of State rejected these
new elements. He considered that it would be "quite wrong" to allow
the applicant to transfer to the relationship with the other British
woman all the arguments he had been pursuing so vigorously to be
admitted in order to stay with his wife. He insisted that the
applicant leave the country. He found the applicant's case
distinguishable from the Berrehab judgment by which, anyway, he
considered himself not bound. The applicant left the United Kingdom
pursuant to the Secretary of State's removal directions on 24 February
1989.
Since leaving the United Kingdom the applicant has had
virtually no contact with his first son, Tariq. He claims to have
sent the child several cards, but his ex-wife has stated that only one
letter, written a month after his departure, has been received. He
has not applied for leave to enter as a visitor to see Tariq.
B. The relevant domestic law and practice
Section 3(1)(a) of the Immigration Act 1971 prohibits the
unauthorised entry of anyone other than British citizens into the
United Kingdom. Leave of entry may be given by immigration officers
(section 4(1) of the 1971 Act) to spouses provided, inter alia, that
the couple has the intention of living permanently together and that
they can maintain themselves without recourse to public funds
(paragraph 46 ("spouses") of the Statement of Changes in Immigration
Rules HC 169, as amended by paragraph 10 of HC 503). Section 13 of
the 1971 Act provides, inter alia, for a right of appeal to an
independent Adjudicator against a refusal of entry, which appeal must
be lodged from outside United Kingdom territory. Whilst an
Adjudicator's task is principally to ensure the lawful application of
the Immigration Rules, he may also make recommendations that matters
falling entirely within the Secretary of State's discretion be decided
differently. Such recommendations are sometimes followed. Judicial
review of ministerial decisions may be granted and the offending
decision quashed if it could be shown to be illegal, improper or
irrational.
COMPLAINTS
The applicant complains that the refusal to allow him to
re-enter the United Kingdom in order to facilitate his access to his
eldest son, Tariq, was in breach of Article 8 of the Convention. He
further complains that he had no effective domestic remedy at his
disposal, under Article 13 of the Convention, for his Article 8
claim. (He also complained originally that his rights under Article 6
had been violated, but he has not pursued this matter in subsequent
written and oral submissions.)
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 7 February 1989 and
registered on 28 March 1989. After a preliminary examination of the
case by the Rapporteur, the Commission considered the admissibility of
the application on 6 July 1989. It decided to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits. The
Government's observations were submitted, after an extension of the
time limit, on 20 December 1989, to which the applicant replied on
6 March 1990.
On 7 September 1990 the Commission decided to invite the
parties to present their submissions orally at a hearing. That
hearing, on admissibility and merits, was held on 8 November 1990.
THE LAW
The applicant has complained that the refusal by British
immigration authorities to allow him to re-enter the United Kingdom in
order to facilitate access to his son, Tariq, was in breach of
Articles 8 (Art. 8) and 13 (Art. 13) of the Convention.
Article 8 (Art. 8) of the Convention guarantees the right to
respect for family life, subject to certain exceptions, including
measures which may be necessary in a democratic society for the
prevention of disorder. Article 13 (Art.1 3) of the Convention
requires that effective domestic remedies be available for
Convention breaches.
The applicant claimed, inter alia, that the refusal to allow
him to re-enter the United Kingdom severed the bond he had with his
first child and constituted an unjustified interference with his right
to respect for family life. He also contended that no adequate
remedies were available to him under United Kingdom immigration law,
which does not permit the grant of leave to enter or remain in the
country solely on the basis of a relationship between a parent and a
child.
The Government submitted, inter alia, that the applicant had
not exhausted domestic remedies and that the application was anyway
manifestly ill-founded because the applicant had had only limited
contact with his first child before actually leaving the United
Kingdom and, according to the applicant's ex-wife, he had made no
attempt to maintain contact with his son since leaving the United
Kingdom, apart from one letter in March 1989. The Government also
argued that the applicant could have applied to return to the United
Kingdom either as a visitor or as the fiancé of the mother of his
second child. Thus, either the refusal to allow the applicant to
enter the United Kingdom did not constitute an interference with
his right to respect for family or, if it did, the interference was
justified for the prevention of disorder, within the meaning of
Article 8 para. 2 (Art. 8-2) of the Convention, which notion
encompasses the effective enforcement of immigration controls.
The Commission has first examined whether the applicant has
complied with the exhaustion of domestic remedies rule laid down in
Article 26 (Art. 26) of the Convention. It notes that United Kingdom
immigration law makes no provision for the grant of leave to enter or
remain in the country in order to facilitate a parent's access to his
child. The applicant's leave to remain in the United Kingdom had been
based on the fact of his marriage and the continued cohabitation of
the couple. Once the marriage broke down and the couple had separated
the applicant no longer had any entitlement to stay, or, once out of
the country, to re-enter. The refusal to allow him to re-enter the
United Kingdom was, therefore, lawful, as was conceded by the
applicant. He, therefore, had no basis in law to challenge that
decision effectively before an Adjudicator. As regards judicial
review, the Commission observes that the decision whether the
applicant was to be allowed to stay in order to have access to his son
fell within the prerogative discretion of the Secretary of State.
However, the Secretary of State refused to allow the applicant to
re-enter on a compassionate basis. No evidence has been put before the
Commission which might indicate the possibility of an effective appeal
by way of judicial review against this refusal. Accordingly, the
Commission finds that the applicant has complied with the requirements
of Article 26 (Art. 26) of the Convention.
The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and fact under
the Convention, the determination of which should depend on an
examination of the merits of the application as a whole. The
Commission concludes, therefore, that the application is not
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for declaring it
inadmissible have been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy