CEDH · CASELAW;DECISIONS;ADMISSIBILITY;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 OF   Application No. 12790/87 by Cyril NG 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. 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 12 January 1987 by Cyril NG against the United Kingdom and registered on 16 March 1987 under file No. 12790/87;           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 applicant is a British Overseas Citizen, born in Hong Kong in 1957 and resident in Liverpool.   He is represented before the Commission by Messrs.   A.D. Abrahamson & Co., Solicitors, Liverpool.           The facts as submitted by the applicant may be summarised as follows: -           The applicant was granted a student's visa to enter the United Kingdom in 1977; this form of permit was extended until April 1981.   In 1980 he began cohabiting with a citizen of the United Kingdom.   They married on 8 April 1983 and had two children, born in 1982 and 1986 respectively.   On 8 September 1983 the applicant was granted a year's leave to remain in the United Kingdom on the basis of the marriage. The day before his leave expired he made telephone enquiries about its renewal and was allegedly assured that the Home Office would agree to accept his renewal application as being made on 31 August 1984. However he did not make his application until 15 April 1985.           The applicant's wife commenced divorce proceedings against him on 12 November 1984 but withdrew them.   She recommenced these proceedings on 15 December 1986 and they are still pending.           On 17 October 1986 the Secretary of State refused the applicant's renewal of leave in the following terms: -             "(Your) solicitors ... have applied on your behalf for         leave to remain in the United Kingdom for employment with         Mrs.   H.C.M., as Restaurant Manager, but the Department of         Employment has not approved your proposed employment.   They         have also applied on your behalf for leave to remain on the         basis of your marriage to a British citizen, but the Secretary         of State is not satisfied that you and your wife intend to         live together permanently as husband and wife nor that the         marriage has not been terminated."             As the applicant had applied for renewal of leave on 15 April 1985, after his previous leave had expired, he had no right of appeal against the Secretary of State's decision.           On 13 February 1987 (apparently because of the wife's mental condition) the Liverpool County Court granted the applicant interim care and custody of the two children, with access by the wife and subject to a supervision order, requiring the supervision of the children's welfare by a social worker of the applicant's local authority.           On 24 June 1987 the Secretary of State decided that, in view of the applicant's care and custody of the children, the applicant was to be granted an extension of leave for 12 months, after which his position will be reviewed in the light of all circumstances obtaining then.   COMPLAINTS           The applicant originally complained to the Commission of a violation of Article 8 of the Convention for if he were to be expelled from the United Kingdom he would be deprived of contacts with his children because it would be unlikely that he would be allowed to remove them from the United Kingdom courts' jurisdiction.   If he were allowed to take them with him to Hong Kong his wife would be deprived of contact with the children.           The applicant complained of sexual discrimination in the operation of paragraphs 124 and 126 (f) of the Statement of Changes in Immigration Rules HC 169, to the prejudice of men, contrary to Article 14 of the Convention read in conjunction with Article 8.           The applicant also invoked Article 14 read in conjunction with Article 12 of the Convention.           He does not consider that the grant of leave to remain on 24 June 1987 affects the validity of his application.   THE LAW           The applicant has complained of proposals by the Secretary of State in October 1986 to deport him from the United Kingdom, even though this would probably have deprived him of contacts with his children who would remain there.           He invoked Article 8 (Art. 8) of the Convention which ensures the right to respect for family life, subject to certain limited exceptions, and Articles 14 and 12 (Art. 12, 14) of the Convention, which guarantee respectively freedom from discrimination in the securement of Convention rights and freedoms, and the right to marry and found a family.           However, the Commission notes that the Secretary of State has reviewed his earlier decision in the light of the Liverpool County Court's decision of 13 Februry 1987 to grant the applicant care and custody of his two children.   The applicant has thus been granted leave to remain for a reviewable period and, for the time being, his family life is not in jeopardy.   The Commission further observes that the original decision to deport the applicant did not have any concrete repercussions on the applicant's family life i.e. it did not in fact result in a separation of the family.   In these circumstances, the Commission concludes that the factual basis of the applicant's complaint has been resolved and that he can no longer claim to be a victim of a violation of the Convention, within the meaning of Article 25 (Art. 25).           It follows that the application must be rejected as being manifestly ill-founded, pursuant to 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)