CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 12 février 1990

.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. 13078/87                       by Emanuel FADELE, Kehinde FADELE,                       Taiwo FADELE and Victor FADELE                       against the United Kingdom             The European Commission of Human Rights sitting in private on 12 February 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                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 17 July 1987 by Emanuel FADELE, Kehinde FADELE, Taiwo FADELE and Victor FADELE against the United Kingdom and registered on 21 July 1987 under file No. 13078/87 ;           Having regard to:        -   reports provided for in Rule 40 of the Rules of Procedure         of the Commission;        -   the Commission's decision of 7 October 1988 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 25 January 1989 and the observations in reply submitted         by the applicants on 7 June 1989;        -   the Commission's decision of 4 October 1989 to hold a         hearing of the parties;        -   the pre-hearing briefs of the parties submitted on         24 January 1990;        -   the hearing on admissibility and merits held on 12 February         1990;           Having deliberated;           Decides as follows:   THE FACTS           The first applicant is a citizen of Nigeria, born in 1950, who at the time of lodging the application was temporarily resident in London.   The other three applicants are his children, twins born in 1978 and a third child born in 1981 in the United Kingdom, by virtue of which all three acquired British nationality.           They are represented before the Commission by Ms.   Jacqueline Bhabha of the North Islington Law Centre.           The facts of the case, as submitted by the parties, may be summarised as follows:   A.       The particular facts of the case           The first applicant has a history of illegal immigration to the United Kingdom.   According to a letter (ref.   F15 8129/5 (s)) from the Minister of State of the Home Office to the applicants' Member of Parliament, the first applicant initially came to the attention of the United Kingdom immigration authorities in 1980 after he had been arrested by the police and charged with making a false statement, for which offence he was later fined £50.   (The first applicant points out that by virtue of the Rehabilitation of Offenders Act his record has been "wiped clean" and that it is unfair that he be indefinitely tarred with this matter.)   At that time he claimed to have entered the United Kingdom first in 1972 and lived and worked there until 1979, when he had left using an emergency travel document issued in London. He had returned in January 1980 and he was granted leave to enter for one month on 16 January 1980.   Government records showed that he had obtained this leave by falsely representing himself to be an employee of Nigerian Airways on authorised leave, whereas the true position was that he intended to resume studies.   (The first applicant denied making such false representations.)   The Minister considered representations against the decision to remove the first applicant as an illegal entrant but he felt that the fact that the first applicant was studying in the United Kingdom was not sufficient reason to overlook the deception practised on the immigration officer and the first applicant was eventually removed to Nigeria on 13 July 1981. Although he had indicated that he would want his wife and the twins to accompany him, and arrangements were made for their travel facilities to be completed and their fares paid from public funds, the first applicant in the event returned alone to Nigeria.   From Nigeria he telephoned the family regularly and sent them messages and parcels via visiting friends and relatives.           Subsequent action to enforce removal of the wife (also a Nigerian) by way of deportation following unauthorised stay was frustrated when she moved addresses.   The first applicant then applied for entry clearance in Lagos in September 1981 to enable him to return for studies.   This application was refused since the entry clearance officer was not satisfied that he intended to leave the United Kingdom when his studies were completed and his appeal was dismissed by the adjudicator on 20 July 1982.   Subsequently, in December 1985, when he presented a forged Nigerian passport, he was refused entry when seeking to visit and purchase clothes.   (The first applicant claims he had a new passport not a forged one.)   He attempted to conceal the presence in the United Kingdom of his wife and family, and was detained before being removed to Lagos on 17 December 1985.   The first applicant conceded before the Commission that his genuine intentions in going to the United Kingdom in January 1980 and December 1985 were to continue studies in electrical engineering and to settle in the United Kingdom with the education and means to support his family.           The child applicants are three brothers.   The twins lived with, and were cared for, by both their parents from birth (25 March 1978) until 13 July 1981 when the first applicant was removed from the United Kingdom (apart from a period between 1979 and January 1980 when the first applicant was away from the United Kingdom).   The youngest child was born four and a half months after the first applicant's removal.   From April 1982 onwards they lived in a council flat on a large London housing estate and started nursery and primary school there.           The facts giving rise to the application are that the wife/mother died in a car accident in August 1986.   Two weeks later, on 3 September 1986, the first applicant travelled to the United Kingdom from Nigeria and sought leave to enter as a visitor in order to care for his children and wind up his wife's affairs, including a compensation claim arising out of her death.   The first applicant told the immigration officer that since returning to Nigeria he had been working on his cousin's farm without remuneration, receiving only food and accommodation.   His cousin had paid for his ticket.           The immigration officer considered the matter and took account of the compassionate circumstances which had led to the journey. However, these had to be balanced against the first applicant's previous attempts to settle in the United Kingdom and the fact that he had, in the past, practised deception and shown disregard for the Immigration Rules.   The officer concluded that settlement was still the first applicant's aim and that, in all the circumstances, the first applicant was not genuinely seeking entry as a visitor for a limited period.   He therefore refused him formal leave to enter.   The first applicant was, however, granted temporary admission.           Representations were then made by the applicants' Member of Parliament requesting the Minister to review the decision refusing leave to enter.   The Minister refused on 9 February 1987 in the light of the first applicant's immigration history.   Whilst expressing sympathy with the family's bereavement, he considered that the first applicant did not qualify for settlement in the United Kingdom.   As regards the other applicants' position, he noted that the first applicant had by then spent five months in the United Kingdom and had had the opportunity to take advice about arrangements for them.   He considered that the first applicant had not been closely involved with his children since 1981 and that, accordingly, the first applicant should not be afforded exceptional treatment outside the Immigration Rules.           Further representations were made on the first applicant's behalf by the North Islington Law Centre on 27 February 1987 in the light of the family's situation at that time:   The first applicant had resumed sole responsibility for his children, withdrawing them from the care of a friend of his wife with whom they had been unhappy. They had gone to live with her and her four children on 9 August 1986, changing schools.   This arrangement broke down within three months. On his arrival from Nigeria the first applicant found that the friend was turning his children against him, recounting frightening stories of life in Nigeria and alleging that he would take the children to Nigeria by force.   As of 6 November 1986 he found an alternative placement for the children with another of his wife's Nigerian friends, her husband and three children, which involved another change of school.   However this arrangement proved unsatisfactory as acute tension arose between all the children.   On 20 March 1987 the family were reunited in their original home and returned to their first schools.           The Law Centre, in their representations to the Secretary of State, pointed out that the first applicant had been unable to make any satisfactory permanent arrangements for the children's future care in the United Kingdom.   He had commenced civil proceedings against the driver of the vehicle that had killed his wife and he needed a few more months in the United Kingdom to pursue this matter and sort out his wife's other affairs.   The first applicant was furthermore suffering from the shock of the bereavement and adjusting to the renewed responsibility for his children, which responsibility he took seriously.   As regards his lack of involvement with his children since 1981, he pointed out that he would have happily returned to the United Kingdom earlier if he had been allowed to do so.           The Law Centre applied for the first applicant to be allowed to remain permanently in the United Kingdom with his children because they only spoke English and knew little about Nigeria.   Alternatively, the Minister was asked to extend the first applicant's temporary admission for a few months and to give a reassurance that any future visitor applications he might make to see his children would not be automatically rejected because of his immigration history.           On 3 June 1987 the Minister refused to extend the first applicant's stay in the United Kingdom but assured him that future visitor applications would not be automatically rejected but would be considered on their merits in the light of all the circumstances pertaining at the time.           A welfare report by a senior social worker obtained on 17 June 1987 recommended that the first applicant be allowed to remain in the United Kingdom with his children, having re-established the dependent family link, and that it would not be in the children's interest, given their age and the traumatic experience of their mother's death, to have to go to Nigeria against their wishes and where their future welfare would be uncertain.   The children's school sent a petition with numerous signatures to the Home Office in support of the first applicant's attempt to stay in the United Kingdom.           The first applicant was obliged to return to Nigeria on 23 August 1987.   He was unable to pursue a compensation claim concerning his wife's death as he was refused legal aid.   He had made arrangements for the children to be cared for by a distant relative and his girlfriend in another part of London, which again involved them in a change of school.   His intention was to leave the children in London pending the outcome of his application to the Commission and/or the creation of some suitable arrangements for them in Nigeria. On his return to Nigeria he was housed by a married friend in a one room flat in Lagos.   He fell ill for some months, but telephoned the children regularly.   They implored him to make arrangements for their travel to Nigeria as they alleged they were being ill-treated by their carers.   They went to Nigeria on 17 December 1987.           However, since going to Nigeria, the family claims to have suffered great hardship:   The four applicants are living in the family home in the first applicant's village in Ondo State, Nigeria.   The accommodation consists of four rooms in a compound dwelling.   This dwelling is occupied by other members of the family in addition to the applicants.   There is no electricity, no running water or toilet facilities.   There are open sewers in front of the dwelling and the compound is filthy.   The first applicant is unemployed and the applicants all live off the first applicant's relatives.   They do not have sufficient food: the child applicants never eat fresh meat, eggs or bread and they complain about the diet to which they are unaccustomed.   The child applicants do not attend any form of school and have not done so since leaving London one and a half years ago.   On arrival in Nigeria, they did not speak any Nigerian languages and English language schools are beyond the family means.   They spend their days at home.   The child applicants have suffered severe health problems since their arrival in Nigeria.   The youngest child has twice suffered severe bouts of malaria including convulsions requiring blood transfusions and hospitalisation.   All three have suffered from typhoid, upper respiratory tract infections and gastro-enteritis.   In April 1989 the youngest child was again seriously ill.   It is feared that they might not survive to adulthood if they are obliged to remain in Nigeria.   This view was expressed by the children's doctor. However, returning them to the United Kingdom would entail separation from their father.   Moreover, given past experience, there is no assurance that they would be properly looked after and raised in the United Kingdom.   B.       The relevant domestic law and practice           The Statement of Changes in Immigration Rules HC 169 provide for visitors' entry to the United Kingdom for short periods provided no employment is undertaken and no burden is placed on public funds. However, the first applicant, once refused a visitor's permit, sought leave to settle in the United Kingdom to look after his children.   The Immigration Rules contain no provision for such cases, although the Home Secretary has an overriding statutory discretion to grant entry outside the Rules.   A refusal of leave to enter the United Kingdom as a visitor may be appealed from abroad under section 13 of the Immigration Act 1971.   However, no appeal lies from a refusal to depart from the Immigration Rules.   The section 13 appeals are heard by independent adjudicators and Immigration Appeal Tribunals who may make recommendations, which, the Government state, are frequently acted upon by the Home Secretary, even if the actual appeal is dismissed.   COMPLAINTS           The applicants complain that the refusal by British immigration authorities to allow the first applicant to remain in the United Kingdom as of August 1986 constitutes a breach of Article 8 of the Convention (family life).           They contend that the refusal to use ministerial discretion to depart from the Immigration Rules was in breach of Article 8 of the Convention, against which refusal there was no effective domestic remedy, contrary to Article 13 of the Convention.   They also complain that by in effect obliging the child applicants to change radically their life style, joining their father in poor living conditions in Nigeria, rather than allowing him to settle with them in the United Kingdom, there was a breach of Article 3 of the Convention and further breaches of Article 8 (home) and Article 13 of the Convention read in conjunction with Articles 3 and 8.   The child applicants also allege that there has been an unjustified interference with their right to education ensured by Article 2 of Protocol No. 1 to the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 17 July 1987 and registered on 21 July 1987.           With the application the applicants lodged a request that the Commission intervene to prevent the first applicant's removal from the United Kingdom.   On 22 July 1987 the President of the Commission refused to indicate interim measures to the respondent Government pursuant to Rule 36 of the Commission's Rules of Procedure.   The same day the Secretary to the Commission informed the respondent Government of the introduction of the application pursuant to Rule 41 of the Rules of Procedure.           After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 7 October 1988.   It decided to give notice of the application to the respondent Government, pursuant to Rule 42 para. 2 (b) of the Rules of Procedure, and to invite the parties to submit observations on admissibility and merits.   The Government submitted their observations on 25 January 1989, to which the applicants replied on 7 June 1989.           On 4 October 1989 the Commission decided to hold a hearing of the parties on the admissibility and merits of the case.   On 24 January 1990 both parties submitted written briefs in preparation of the hearing which was held on 12 February 1990.   At the hearing the applicants were represented by Mr. A. Nicol, Counsel, and Mrs. J. Bhabha, Solicitor.   The Government were represented by their Agent, Mr. N. Parker, Mr. J. Eadie, Counsel, Mr. S. Bramley, Home Office, Adviser, and Miss D. Brookes, Foreign and Commonwealth Office, Adviser.   THE LAW   1.       The applicants have complained of the refusal of British immigration authoritees to allow the first applicant (a Nigerian) to join the other three applicants, his children (British), in the United Kingdom after the death of the wife/mother.   They have alleged a breach of Article 8 (Art. 8) of the Convention (right to respect for private and family life and home), Article 3 (Art. 3) of the Convention (prohibition on inhuman and degrading treatment), Article 13 (Art. 13) of the Convention (the right to a remedy for a breach of the Convention) and Article 2 of Protocol No. 1 (P1-2) to the Convention (the right to education).           The applicants contended that they have complied with Article 26 (Art. 26) of the Convention (exhaustion of domestic remedies) because there were no effective domestic remedies to pursue, the refusal of the first applicant's visitors leave being in accordance with the Immigration Rules and the refusal of leave to settle being a matter of pure discretion for the Home Secretary, against which there was no appeal.   They also contended that they have complied with the six months' rule laid down in Article 26 (Art. 26) because, although their complaints concerning Articles 3, 8 (home) (Art. 3, 8) and 13 (Art. 13) of the Convention and Article 2 of Protocol No. 1 (P1-2) to the Convention were not specifically relied on in the original application, the substance of these complaints was contained in that document and previous correspondence.           The applicants submitted that the refusal of the first applicant's settlement request constituted an unjustified interference with their family life which had been maintained (despite separations forced on them by British immigration authorities) through telephone and other contacts, and which had been solidly re-established after the trauma of the wife's/mother's death.   Because of the child applicants' total emotional and material dependence upon their father they were in effect obliged by the settlement refusal to suffer the additional trauma of giving up their friends, schools and the only settled home they had ever known in the United Kingdom and of facing great hardship living in Nigeria.   They could hardly rely on the prospect of being visited from time to time by their father in view of the Home Secretary's continual refusal of such leave to date.   The family claimed that the interference with their Article 8 (Art. 8) rights was not necessary for the prevention of disorder to enforce immigration controls.   The family posed no actual or potential threat of disorder.   The children were no longer of an adaptable age to cope with the wholly inadequate health and educational environment in Nigeria.   2.       The Government replied that the applicants had failed to exhaust domestic remedies because the first applicant had not appealed from Nigeria under section 13 of the Immigration Act 1971 against the original refusal of visitors leave.   An adjudicator examining an appeal under this provision, whilst finding that the Secretary of State had acted in accordance with the Immigration Rules, might nevertheless recommend that the Minister exercise his discretion in the appellants' favour.   The Secretary of State gives careful consideration to such recommendations and not infrequently follows them.   Moreover, the children had not sought judicial review of the refusal of leave on the basis of the alleged breach of Article 3 (Art. 3) of the Convention.   The Government next contended that the applicants had failed to observe the six months' rule as regards their complaints made under Articles 3, 8 (Art. 3, 8) (home) and 13 (Art. 13) of the Convention and Article 2 of Protocol No. 1 (P1-2), which provisions had not been specified in the original application.           Even assuming the applicants could be said to have complied with Article 26 (Art. 26) of the Convention, the Government submitted that there had been no interference with the applicants' right to respect for family life because the applicants now enjoy family life, intact, in Nigeria, no choice of residence being included in the rights guaranteed by Article 8 (Art. 8) of the Convention. Furthermore, there was no failure to respect the applicants' family life as the first applicant was allowed to enter the United Kingdom and remain for nearly a year in order to wind up the family's affairs. Even if there was an interference with the Article 8 (Art. 8) right, it was in accordance with the law and was necessary for the legitimate aim of enforcing immigration controls, which aim falls within the ambit of the prevention of disorder under the second paragraph of Article 8 (Art. 8).   In this context account must be taken of the first applicant's immigration history and the possibility of maintaining family ties by visits if the child applicants had remained in the United Kingdom.   Finally, it was submitted that the applicants' other claims under Articles 3, 8 (Art. 3, 8) (private life and home) and 13 (Art. 13) of the Convention and Article 2 of Protocol No. 1 (P1-2) were wholly unfounded.   In particular, as regards the Article 13 (Art. 13) claim, the possibility of appeal under section 13 of the Immigration Act 1971 or judicial review of the decisions of the immigration authorities constitute effective remedies for the purposes of this Convention provision.   3.       The Commission has first examined whether the applicants have exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention.   It notes that the essence of their complaint is that the first applicant was not allowed to settle with the children in the United Kingdom.   The relevant Immigration Rules contain no provision for such cases, which are entirely a matter of the Home Secretary's extra-statutory discretion.   No appeal lies against a refusal by the Home Secretary to exercise his discretion in the applicants' favour. Secondly, the double discretionary remedy of attempting to obtain a compassionate recommendation from an adjudicator which might have persuaded the Secretary of State to change his mind and exercise his extra-statutory discretion in favour of the applicants' father cannot, in the Commission's view, be considered effective.           Lastly, the Commission notes that the Government have not demonstrated the basis upon which the applicant children would have had locus standi, or otherwise any prospects of success, in challenging the Secretary of State's refusal to exercise his extra-statutory discretion to allow their father to remain in the United Kingdom with them, the challenge being based on arguments relevant to Article 3 (Art. 3) of the Convention.   Accordingly, the Commission finds that the applicants have exhausted all effective remedies at their disposal.   4.       The Commission has next examined whether the applicants have complied with the six months' rule laid down in Article 26 (Art. 26) of the Convention.   It finds that the substance of the applicants' complaints, now characterised by the applicants as alleged breaches of Articles 3 and 8 (Art. 3, 8) (private life and home) of the Convention and of Article 2 of Protocol No. 1 (P1-2) to the Convention, was raised in the original application to the Commission.   In respect of the applicants' complaints under these provisions the Commission finds, therefore, that the applicants have satisfied Article 26 (Art. 26) of the Convention. However, insofar as the applicants have complained of a breach of Article 13 (Art. 13) of the Convention, the Commission finds that the substance of this complaint was not apparent from the original application. This complaint was not specified until the applicants submitted their observations on admissibility and merits on 7 June 1989, whereas the final ministerial decision was taken more than six months before on 3 June 1987, with the application to the Commission being lodged on 17 July 1987.   The Commission considers this complaint to be of a qualitatively different nature from the aforementioned Convention complaints which may reasonably be said to flow from the description of the facts originally alleged by the applicants in the present case. Accordingly, the Commission concludes that it is unable to deal with the applicants' complaint under Article 13 (Art. 13) of the Convention as they have failed to respect the six months' rule laid down in Article 26 (Art. 26) of the Convention.   This part of the application must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   5.       As regards the remainder of the application, the Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and fact under Articles 3 and 8 (Art. 3, 8) (private and family life and home) of the Convention and Article 2 of Protocol No. 1 (P1-2), the determination of which should depend on an examination of the merits.   The Commission concludes, therefore, that the remainder of the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and that no other grounds for declaring this part of the case inadmissible have been established.           For these reasons, the Commission       -    DECLARES INADMISSIBLE the applicants' complaint         under Article 13 (Art. 13) of the Convention;       -    DECLARES ADMISSIBLE the remainder of the application         without prejudging its merits.        Secretary to the Commission        President of the Commission                (H.C. KRÜGER)                    (C.A. NØRGAARD)