CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 juillet 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY   Application No. 11970/86 by O.and O.L. against the United Kingdom             The European Commission of Human Rights sitting in private on 13 July 1987, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      F. ERMACORA                      E. BUSUTTIL                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                   Mr.   H.C. KRÜGER, 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 6 February 1986 by O. and O.L. against the United Kingdom and registered on 7 February 1986 under file No. 11970/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicants are brothers born in 1972 and 1979 respectively.   They are British citizens by virtue of their birth in the United Kingdom whilst their parents, Turkish Cypriots, were in the United Kingdom.           The application is brought on behalf of the applicants by Messrs.   Cecil Altman & Co., Solicitors, London.           The facts as submitted may be summarised as follows:           The applicants' father worked as a clerk in the Logistics Department of the Cyprus Turkish Contingent in Nicosia, Cyprus, between 1964 and 1974.   His work gave him access to classified information whereby he learned of Turkish Government plans to invade Cyprus in 1970/71.   As he was opposed to such plans he tried to resign in 1971, but his resignation was refused.   He therefore fled from Cyprus with his wife using false passports.   They were given six months leave of entry into the United Kingdom, which leave was extended until October 1972, when the first applicant was born.           In 1972 the applicants' maternal uncle was murdered in Istanbul.   The parents believed this to be politically inspired. However, the British immigration authorities considered, after inquiries were made, that this was probably a purely criminal matter.           In 1972 the request of the applicants' parents for further leave to remain was refused.   For fear of what would await them if returned to Cyprus the parents resolved to remain in the United Kingdom unlawfully.   In an attempt to regularise their immigration status in 1974 they were arrested and subsequently convicted of overstaying.   Deportation orders against them were issued on 20 October 1974, but not implemented immediately because of the unsettled situation in Cyprus at that time.   Representations were made on the couple's behalf by three Members of Parliament between 1974 and 1976.   The applicants' father has told the British immigration authorities of his fear of persecution if returned to Cyprus, not only because of his brother-in-law's murder, but also because of his own desertion from the Turkish Fighters' Army.   Apart from the fact that the British immigration authorities considered it unlikely that the killing of the brother-in-law had been politically motivated, their enquiries also revealed that, if a person deserted before serving two years, the only action taken would be re-conscription to complete the remaining period of service.   As the applicants' father has served for much longer than two years, it was not thought that he had anything to fear on that account.           On learning that the deportation orders were to be implemented against them, the applicants' parents absconded, remaining untraced until August 1977.   They were detained and deported to Northern Cyprus on 14 September 1977, accompanied by the first applicant.           The applicants' parents were unable to find accommodation or employment in Northern Cyprus.   They stayed with relations on a temporary rotating basis.   It is claimed that the applicants' father was detained for about one week, during which he was interrogated and beaten.   He was allegedly accused of passing information to the Greek Cypriot authorities during his former employment.           The first applicant apparently found the situation in Northern Cyprus extremely unsettling.   Apart from the lack of family home he was unable to speak Turkish or to establish links with his new environment.   He showed signs of withdrawal and disturbance.           In 1978 the applicants' mother became pregnant.   It seems that in November 1978 the applicants' parents obtained passports under false names and travelled to the United Kingdom where they were given leave to enter as visitors.   The applicants' father informed the immigration authorities that he was there on business as a citrus fruit exporter.   They refurbished a house which they had bought prior to deportation and let it before returning to Cyprus on 18 December 1978. On 14 February 1979 the applicants' mother, under the false name, returned to the United Kingdom for a month for medical treatment.   On 4 June 1979 she again returned on false papers for medical treatment and gave birth to the second applicant in July, when the applicants' father also entered the United Kingdom under a false name and claimed to be on a business visit to buy cosmetics for a shop in Nicosia.   The couple then overstayed without a trace.   Notice of intention to make deportation orders against the applicants under their assumed name was sent to the Cyprus High Commission on 18 October 1983.           In November 1983 the applicants' parents were arrested and declared illegal entrants.   In March 1984 a third child, a daughter, was born to the couple.           In reply to representations by a Member of Parliament, the Secretary of State stated in a letter of 11 January 1984 as follows:           "Mr. and Mrs.   L. have, between them, entered the United         Kingdom illegally in breach of deportation orders by the use         of passports obtained in a different name on no less than         five occasions.   As you know, it is normal practice to remove         illegal entrants unless there are exceptional reasons, usually         of a compelling compassionate nature, for not so doing.           I have carefully considered all the circumstances of Mr. and         Mrs.   L.'s case in the light of your representations but I am         not persuaded that there are grounds to justify allowing them         to remain exceptionally.   Mr.   L.'s claim to remain on         political grounds has, as I said earlier, been fully examined         on a previous occasion and found to be without substance.         Furthermore, the birth of children in this country to those         here unlawfully can confer no entitlement on a parent to         remain.   The family having enjoyed a higher standard of living         here than they would have achieved in Cyprus (they have been         working since 1979 without paying tax), they are naturally         reluctant to return there now that they have been discovered.         However all but the first 15 months of the time spent in the         United Kingdom by Mr. and Mrs.   L. has been in breach of the         immigration laws.   I consider that it could be manifestly         unfair to the many people who seek to come here through the         proper channels, but have no claim to do so, if this couple         were allowed to stay and benefit from their contempt for the         immigration control.   Finally there is no reason to suppose         that the declaration of independence by the authorities in         the north of Cyprus should directly have any bearing on this         case.           Arrangements for Mr. and Mrs.   L.'s removal to Cyprus as         illegal entrants will now proceed, due account being taken of         Mrs.   L.'s present medical condition before arrangements are         finalised.   Their children will be given the opportunity to         return with them, their fares being met, if necessary, from         public funds."             Subsequently, directions were issued by the Secretary of State for the removal of the applicants' parents from the United Kingdom.   In May 1984 an appeal was lodged against the directions insofar as they concerned the destination i.e.   Ercan, Cyprus.   The appeal was dismissed by both the Adjudicator (5 October 1984) and the Immigration Appeal Tribunal (13 December 1984), as the applicants' parents could not show that they had another country to go to.           Further representations by a Member of Parliament were rejected by the Secretary of State in a letter dated 12 November 1984. He decided that he was unable to revoke the deportation orders against the applicants' parents and grant indefinite leave to remain when there was no basis in the Immigration Rules to do this and such leave is similarly refused to many people who never even offended against the immigration laws.   It was accepted that the first applicant, as a British citizen, could remain in the United Kingdom for his education. However to visit him the parents would first have to apply for revocation of the deportation orders against them.   He could give no assurances that such an application would be successful, although there is a right of appeal against a refusal to revoke a deportation order.           Throughout 1985 further representations were made on asylum, on humanitarian and compassionate grounds.   These representations were also unsuccessful and culminated with the Secretary of State's letter of 5 January 1986 in the following terms:           "In order to qualify for the grant of asylum in the United         Kingdom a person must show that, if he were required to leave,         he would have to go to a country to which he is unwilling to         go owing to a well founded fear of being persecuted for         reasons of race, religion, nationality, membership of a         particular social group or political opinion.   Despite         Mr.   L.'s assertion that he is still wanted by the Turkish         military authorities, he has admitted that apart from the         incident which took place in 1977, neither he nor any         member of his family subsequently experienced any difficulties         at the hands of those authorities; indeed two of his brothers         work for the Turkish Government.   As regards Mr.   L.'s         assertion that his interrogators knew of his application         for asylum and that the authorities would know of his present         application, I am afraid that I find this difficult to accept.         Eight years have passed since the incident which Mr.   L. has         described and given that he was released without charge, there         is no evidence to suggest that he would now face persecution         if he returned to Cyprus.           I have carefully considered Mr.   L.'s case in the light of your         latest representations but I am not persuaded that his fears         of returning to Cyprus are well founded.   I have also         considered the children's position again. ...   Mr. and Mrs.   L.         were fully aware of the possible consequences to them and         their children by choosing to return to the United Kingdom in         breach of the immigration laws.   While I have every sympathy         for children involved in cases such as this, I cannot now         accept their position as a compassionate reason for allowing         the parents to remain here.   Arrangements will now be made to         remove Mr. and Mrs.   L. as illegal entrants, their children         will be given the opportunity to accompany them to Cyprus, at         public expense if necessary."             On 7 February 1986 the applicants' parents and sister were removed to Northern Cyprus.   The applicants were left behind with their maternal aunt.   The aunt is a single parent of a severely handicapped boy.   The applicants claim that she is experiencing increasing difficulties in looking after all of them.   If the present arrangements break down, the applicants may find themselves in State care.   In the meantime the applicants' parents still reside temporarily on a rotating basis with relatives.   They are also unemployed.   It is, therefore, not possible for the applicants to join their parents in Cyprus.           The applicants have submitted the psychiatric report of the Child and Family Department of a health clinic, confirming the limited care that the "depressed, weary and demoralised" aunt can offer the applicants.   The clinic's consultant psychiatrist found the applicants to be, inter alia, "British in all senses of the word" and in desperate need of their parents' support.   However she considered that the applicants' development would be impaired if they have to return to Cyprus.   COMPLAINTS           The applicants' complaint as submitted is that the deportation of their parents to Northern Cyprus constituted a breach of Articles 8 and 13 of the Convention.           The applicants contend that, as regards Article 8 of the Convention, the interference with the family's rights cannot be justified in the case of children who have the right of abode in a particular country, who have substantial links with that country and who are no longer of such adaptable age or disposition that it could be reasonsable to expect them to follow their parents elsewhere (cf. No. 8244/78, Uppal v. the United Kingdom, Dec. 2.5.79, D.R. 17 p. 149, No. 9478/81, Dec. 8.12.81, D.R. 27 p. 243 and No. 9492/81, Family X v. the United Kingdom, Dec. 14.7.82, D.R. 30 p. 232).           It is submitted that in the present case, both applicants are young children who are unable even to speak the language of the country to which their parents have been deported, other than to an extremely limited extent.   Both applicants are at an important stage of their youth and development and not only require the presence and guidance of their parents, but also the security and sense of identity from their accustomed environments.   The situation of their parents in Northern Cyprus is precarious and, from the point of view of the applicants' future development, unsatisfactory.   Neither of the applicants have any cultural or social identity with Northern Cyprus and it is submitted on behalf of the first applicant, in particular, that it is too late in his development for him to establish the necessary links which will assist him through his adolescent years (as deemed necessary in the psychiatric report).           Furthermore, it is claimed that the applicants' education will be very seriously affected if they follow their parents to Northern Cyprus.   This is not necessarily because the Turkish Cypriot educational system is inferior to the British.   Rather, it extends from the applicants' own circumstances, particularly in the case of the first applicant, his age and the fact that he is unable to speak much Turkish.   Although there is one school in Northern Cyprus which teaches in English, it is compulsory for all students (including foreign students) to pass an annual examination in Turkish, before they can progress to the next class.   It is extremely unlikely that the first applicant could achieve this.   It is probable, therefore, that his good progress in school in the United Kingdom will be irreparably damaged and, indeed, it is to be anticipated that he will regress.   It is contended that this important factor indicates that the first applicant is not of a sufficiently adaptable age to follow his parents without sustaining severe and irreparable damage to his development.   For all these reasons, the development and fulfilment of the applicants' personality and the forming of links with others must necessarily be adversely affected if the applicants are required to travel to Northern Cyprus (cf.   No. 6825/74 Dec. 18.5.76 D.R. 5 p. 86).           The applicants submit that, in all the circumstances, it would be unreasonable to expect them to follow their parents by reason of their upbringing and different social and cultural background.   They have no substantial family ties with Cyprus, except for their parents. Northern Cyprus is an occupied territory beyond the diplomatic protection of any recognised government and no right of individual petition under Article 25 of the Convention lies from Cyprus.   Although it is necessary to maintain even-handed immigration controls, the applicants emphasise the particular circumstances of their case, its negligible impact on immigration controls and its rarity, given the impossibility nowadays for children of foreign parents to acquire British nationality by virtue of their birth in the United Kingdom.           The applicants thus conclude that the interference with their Article 8 rights is not necessary within the meaning of Article 8 para. 2 of the Convention.           As regards Article 13 of the Convention, the applicants claim to have no effective remedy for their Article 8 claims, the appeal procedures only being available to the person to be deported.   Their only remedy was by way of representations through a Member of Parliament to the Secretary of State.   This could not be deemed to be a satisfactory remedy for the purposes of Article 13.   THE LAW   1.       The applicants' principal complaint is that the deportation of their parents to Northern Cyprus constituted a breach of Article 8 (Art. 8) of the Convention, the relevant part of which provides as follows:           "1.   Everyone has the right to respect for his private and         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."           Whilst the Convention does not guarantee a right, as such, to enter or remain in a particular country, the Commission has constantly held that the exclusion of a person from a country where his close relatives reside may raise an issue under Article 8 (Art. 8) of the Convention (e.g.   No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219, No. 9088/80, Dec. 6.3.82, D.R. 28 p. 160 and No. 9285/81, Dec. 6.7.82, D.R. 29 p. 205).           In the present case, the Commission first notes that the applicants' British nationality is exclusively based on the fact that they were born in the United Kingdom.   However, this fact alone cannot confer rights of abode in that country upon the parents, particularly when, as in the case of the second applicant, the birth occurred whilst the parents had no right to reside in the United Kingdom.           It is a striking feature in the present case that the parents have repeatedly violated British immigration laws by entering the United Kingdom illegally and by staying there without any right of residence.           The Commission notes that the parents have themselves created the present situation by leaving the children behind in the United Kingdom, where the parents had no right to stay but where they apparently found the economic and educational opportunities for their children to be more favourable than in Northern Cyprus.   There would have been no obstacle for the parents to take the children with them back to Northern Cyprus, while the children were younger and could more easily have adapted themselves to life there.           Thus, while the Commission considers that the deportation of the applicants' parents constitutes an interference with the applicants' right to respect for their private and family life under Article 8 para. 1 (Art. 8-1) of the Convention, the Commission must, in considering whether that interference was justified under Article 8 para. 2 (Art. 8-2), attach significant weight to the special circumstances indicated above.   The Commission emphasises the close connection between the policy of immigration control and considerations pertaining to public order and finds that these considerations should be given special weight in a case like the present one, where the applicants' parents have repeatedly taken measures which breached or circumvented immigration rules, and where they must to a large extent be held to be responsible for their present separation from their children.   In such circumstances, the Commission finds it compatible with Article 8 (Art. 8) to expect the children of unlawful overstayers to follow the parents, even if those children have acquired theoretical rights of abode in the deporting country.           The Commission is therefore of the opinion that the interference with the applicants' right to respect for their private and family life, which was in accordance with British immigration law, was justified as being necessary in a democratic society "for the prevention of disorder" under Article 8 para. 2 (Art. 8-2).           Accordingly, this aspect of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicants have also complained that they have no effective remedies at their disposal for their Article 8 (Art. 8) complaint.           Article 13 (Art. 13) of the Convention provides as follows:           "Everyone whose rights and freedoms as set forth in this         Convention are violated shall have an effective remedy before         a national authority notwithstanding that the violation has         been committed by persons acting in an official capacity."           The present application is brought by children whose interests must be ensured to a large extent by their parents, except where those interests conflict.   However, in this case the applicants did not have interests which were in any way contrary to those of their parents. The parents themselves have had remedies at their disposal which could deal with the substantive basis of the applicants' private and family life complaint.   The applicants' parents had the possibility of applying for regular leave of entry, of applying for an extension of that leave, of appealing to an Adjudicator and Immigration Appeal Tribunal against any refusal of leave, of challenging and appealing before the criminal courts the charges of overstaying, of appealing against the designated place of deportation, of applying for the revocation of the deportation orders and of appealing to an Adjudicator and Immigration Appeal Tribunal against a refusal to revoke those orders.   The parents were free to plead their childrens' position as a compassionate factor to be taken into account by the various immigration or judicial authorities.           Thus, although these procedures were not available to the applicants themselves, they were nevertheless vital to the essentials of their Article 8 (Art. 8) complaint.   The Commission finds, therefore, that adequate remedies were at the disposal of the applicants' family, remedies which satisfy the requirements of Article 13 (Art. 13) of the Convention.   In these circumstances the Commission concludes that this aspect of the case is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission                 President of the Commission          (H.C. KRÜGER)                                (C.A. NØRGAARD)