CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 1993

.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 }                               Application No. 18941/91                          by A.K., A.K. and                          S.S.                          against the United Kingdom           The European Commission of Human Rights sitting in private on 13 October 1993, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  G.B. REFFI                  B. CONFORTI                  N. BRATZA              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber.         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 1 October 1991 by A.K., A.K. and S.S. against the United Kingdom and registered on 11 October 1991 under file No. 18941/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows: THE FACTS         The first applicant is a British citizen born in 1991 and is the daughter of the second and third applicants. The second applicant is a British citizen born in 1969. The third applicant, the husband of the second applicant, is an Indian citizen born in 1960. The applicants are resident in the United Kingdom.         The applicants are represented by Ms. N. Mole, executive director of the AIRE Centre, London.         The facts as submitted by the applicants may be summarised as follows.         On 31 August 1983, the third applicant entered the United Kingdom on a visa as the fiancé of a British citizen. Following marriage, he was granted leave to stay as a husband until 20 January 1985. His application for further leave to stay was refused since the marriage had broken down and he was no longer living with his wife. At the end of 1985 the third applicant was arrested and convicted of overstaying his leave to remain in the United Kingdom. He was fined but the Court did not recommend deportation.         In January 1987 the third applicant was divorced. In February 1987 he married again and on the basis of this marriage the Home Office granted leave to stay as a husband until 6 January 1989. When the third applicant applied for further leave to stay it was refused on the basis that he and his second wife were having marital problems. In October 1989 they were divorced. The third applicant withdrew his appeal against the refusal of leave on 30 November 1989.         In December 1989, the third applicant met the second applicant, who had recently divorced her first husband largely because she was concerned that he had only married her to obtain immigration status in the United Kingdom. The second and third applicants were married in a religious ceremony on 20 June 1990 and in a civil ceremony on 19 September 1990. They had received legal advice that the third applicant would be granted leave to remain provided the marriage was genuine and permanent.         On 20 August 1990, the Home Office decided to deport the third applicant for overstaying his leave. The third applicant appealed against this decision.          On 26 February 1991 the Adjudicator dismissed the appeal and refused to make a recommendation to the Secretary of State on compassionate grounds. He concluded :         "In all the circumstances, after due and sympathetic       consideration, I have come to the conclusion that I was not       impressed by the <third applicant's> evidence. I am of the       opinion that he is a highly intelligent person who was, at all       times, fully aware of his immigration situation and, even though       some of the advice given to him may not have been all it might       be, I consider that he was sufficiently knowledgeable on his own       situation that he used the device of marriage to ladies settled       in the United Kingdom to prolong his stay here. Likewise, while       I sympathise with the third wife, I must take account of the fact       that she was fully aware of the <third applicant's> situation and       had first-hand experience of the effects of marriage and divorce       on the matter of leave to remain in the United Kingdom, through       her first marriage. I do not consider that her going to India       with her husband would seriously affect her or her child or that,       if she remained here, her position would be anywhere nearly as       bad as the <third applicant> said it would be...         ...On the whole of the evidence, both on the documents and that       given before me, I find that I am not persuaded on the balance       of probabilities that I should make a recommendation in this       matter.         I find that the <Secretary of State> acted correctly under the       immigration legislation and properly exercised his discretion..."         Counsel advised that there was no basis on which to appeal to the Immigration Appeal Tribunal.         On 17 March 1991, the first applicant was born.         On 16 April 1991 the applicants' solicitors made representations to the Secretary of State concerning the decision of the Adjudicator.         By reply dated 20 June 1991, the Secretary of State stated that after reviewing the case in light of the representations he was not prepared to alter his decision. The deportation order was served on the third applicant on 10 July 1991. Removal directions were issued but then deferred.         In an opinion dated 8 August 1991, counsel advised that there was no arguable basis on which to apply for judicial review.          On 6 September 1991, the third applicant was informed that he had been made the subject of a restriction order. This restricts his place of residence and requires him to report to the police every seven days.         The second and third applicants state that they plan to live in the home that they own in the United Kingdom and that they plan to have their daughter educated there. They refer to the British citizenship of all their immediate relatives. They maintain that the proposed deportation of the third applicant would have the effect of sending all three applicants into permanent exile. They also state that they have neither property nor family in India and that the third applicant's only link with India is that of nationality.     COMPLAINTS         The applicants alleged that the decision to refuse to grant the third applicant leave to remain in the United Kingdom and to order his deportation constituted an unjustified interference with their right to respect for their family life. They invoked Article 8 of the Convention.       The applicants also alleged that the decision violated their rights under Article 1 of Protocol No. 1 to the Convention and the rights of the first and second applicants under Article 2 of that Protocol.         The applicants further submitted that there was no effective remedy in respect of their complaints as required by Article 13 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on   1 October 1991 and registered on 11 October 1991.         On 2 April 1992, the Commission decided to communicate the application to the respondent Government and to ask for written observations on the admissibility and merits of the application.         By letter dated 21 May 1992, the Government informed the Secretariat that the deportation order against the third applicant had been revoked. By letter dated 31 August 1993, the applicants' representative informed the Secretariat that since in May 1993 the applicants had received written confirmation of this position, they now wished to withdraw the application.     REASONS FOR THE DECISION         The Commission recalls that the deportation order against the third applicant has now been revoked and that the applicants wish to withdraw their application.         In these circumstances the Commission finds that the applicants no longer intend to pursue their application. The Commission further considers that respect for Human Rights as defined in the Convention does not require it to continue the examination of the application.         It follows that the application may be struck off the list of cases pursuant to Article 30 para. 1(a) of the Convention.         For these reasons, the Commission, unanimously,           DECIDES TO STRIKE THE APPLICATION OUT OF THE LIST OF CASES.     Secretary to the First Chamber          President of the First Chamber         (M.B. BUQUICCHIO)                            (A. WEITZEL)