CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 janvier 1996

.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. 25297/94                       by P.P. & others                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 16 January 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 18 November 1994 by P.P. & others against the United Kingdom and registered on 5 December 1994 under file No. 25297/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      15 August 1995 and the observations in reply submitted by the      applicants on 19 October 1995;        Having deliberated;        Decides as follows:   THE FACTS        The first applicant is a citizen of Jamaica born in 1964 and resident in Jamaica. The second to fourth applicants are her children born in 1984, 1989 and 1993. They are or may claim to be British citizens and live with the first applicant.        The applicants are represented before the Commission by Ms. Kate Bell, a solicitor practising in London. The facts as submitted by the parties may be summarised as follows.        The first applicant was born and grew up in Jamaica. She entered the United Kingdom in March 1988 as a visitor and stayed with Mr. Powell whom she had known in Jamaica.        Mr. Powell, a British citizen, is the father of the three children who were born to the first applicant. S., the second applicant, was born on 15 August 1984 out of wedlock and may claim to be a British citizen by virtue of her mother's subsequent marriage to her father.   A., the third applicant, was born on 15 January 1993 and H, the fourth applicant, on 17 October 1993, both of whom acquired British citizenship at birth due to their mother's marriage to Mr. Powell.        In 1988, before her visa expired, the first applicant and Mr. Powell were arrested for possession of cocaine with intent to supply. The first applicant was charged also with trying to obtain a passport fraudulently. She received a three month suspended sentence for the latter. In respect of the drugs offences, she was found guilty on 24 February 1989 and sentenced to a two year suspended sentence. The judge made a recommendation of deportation. Mr Powell was sentenced to five years.        On 17 January 1990, the first applicant married Mr. Powell. He was released from prison in 1992 but after being convicted for a similar offence, he was sentenced to a further five year prison sentence.        On 7 August 1989, the Secretary of State signed a deportation order. It was not served on the first applicant.        On 3 January 1991, the first applicant applied through UKIAS (United Kingdom Immigration Advisory Service) to regularise her stay. No response was received to these representations until 22 October 1993 when the Home Office wrote to UKIAS to inform them the deportation order would be served in due course.        The first applicant's Member of Parliament made further representations to the Home Secretary on her behalf in February 1994 and on 26 February 1994 the order for deportation was served on her.        The first applicant's application for leave to apply for judicial review was dismissed on 27 May 1994.        Further representations to the Home secretary regarding the children were rejected by letter of 20 June 1994.        On 4 September 1994, the first applicant left the United Kingdom with her children, S. A. and H. They live in Jamaica.   COMPLAINTS        The applicants complain of a violation of their right to respect for their family and private life guaranteed under Article 8 of the Convention. The children had maintained close links with their father despite his imprisonment, visiting him twice a month in prison. They enjoy with him a bond amounting to family life. The deportation interferes with their family life and private life, since inter alia, they have been sent to a place with which they have no connections and no prospects. The deportation of the first applicant constitutes constructive deportation of the children who are British citizens and have the right of abode in the United Kingdom, where they born bred and educated. They have lost as a result the benefits of the health, education and welfare services of their own country and continuing their relationship with their father and friends in the United Kingdom. While the children could have remained, their separation from their mother, the first applicant, would have had damaging psychological effects. The measure was accordingly disproportionate and harsh.        Further, the measure discloses a violation of Article 3 of the Convention as the child applicants are required to adapt to circumstances which cause them adverse psychological consequences and even deterioration in their physical well-being.        The applicants also make reference to Article 2 of the First Protocol in relation to the loss of educational opportunities which they had enjoyed in the United Kingdom.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 18 November 1994 and registered on 5 December 1994.        On 6 April 1995, the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 15 August, following the refusal of the Commission on 4 July 1995 to postpone the examination of the case pending other similar applications. The applicant replied on 19 October 1995.        On 24 October 1995, the Commission granted the applicants legal aid.   THE LAW   1.    The applicants complain that the children have suffered adverse psychological consequences and even a deterioration in their physical well-being since their deportation. They invoke Article 3 (Art. 3) of the Convention which provides:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."        The case-law of the Convention organs establishes that ill- treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (Art. 3)   of the Convention. Further, the Court has held that the suffering occasioned must attain a certain level before treatment can be classified as a inhuman. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects (see eg. Eur. Court H.R., Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, para. 162).        The Commission has examined the material submitted by the applicants but beyond a reference to rashes suffered by one of the children does not find any substantiation of the alleged physical repercussions of the move to Jamaica. There is also no explanation of the nature or degree of the alleged psychological effects. The Commission accordingly finds that the complaint does not disclose that the second, third or fourth applicants have been exposed   to   treatment attaining the severity of inhuman or degrading treatment as prohibited by the above provision.        It follows that these complaints must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicants complain that the deportation of the first applicant constitutes a violation of their right to respect for their family and private life. As a result the second, third and fourth applicants were required to leave the country of which they are citizens and in which they have the right to reside.        Article 8 (Art. 8) of the Convention provides as relevant:        "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."        The Government refer to previous case-law to the effect that there is no breach of Article 8 (Art. 8) if it is reasonable for the family unit to be maintained abroad. This applies to cases where children are involved. They submit that it is not unreasonable to expect the applicants to continue their family life in Jamaica, since, inter alia, the first applicant is a Jamaican citizen familiar with Jamaican culture and all the children are still young and could adapt to Jamaican life. It is submitted that the applicants' family life with Mr. Powell has been of a limited character, in view of his various prison sentences and that the first applicant married him in circumstances when deportation was a realistic prospect. There are, it is pointed out, no apparent obstacles to Mr. Powell joining the family in Jamaica on his release from prison and reference is made to the serious crime committed by the first applicant and the fact that the applicants were dependent on public funds before they went to Jamaica.        The Government further contend that the concept of "private life" does not extend to social and economic benefits which may be derived from residence in a particular country and that the applicants' British citizenship cannot be interpreted as bestowing on them a private life right to grow up in the United Kingdom.        The applicants   seek to distinguish the earlier Commission case- law. It is pointed out that these often involved alleged violations of the rights of the parent who was an illegal immigrant and that no detailed consideration was given to the child's rights. Also, previous cases concerned children who had acquired British citizenship by being born on British soil while their parents were both there illegally: in this case, pursuant to a change in legislation, the second to fourth applicants obtained their citizenship, or claim to citizenship, by virtue of their mother's marriage to their father who is a British citizen - ius sanguinis rather than ius soli.        In answer to the claim that it is reasonable to expect the applicants to live in Jamaica, they point out that Mr. Powell, the husband and father of the family, remains in the United Kingdom serving a prison sentence and is unable to join them. The departure of the applicants means that they are totally separated from him and unable to enjoy such restricted family life as is consonant with detention. There is no justification for severing all direct contact between the father and his children, which measure is in fact contrary to the principles of family re-unification and protection of the welfare of the children. It is claimed that on his release the Jamaican authorities are not willing to allow him to enter due to his serious criminal record and their expectation that the family, most of whom are British citizens, should make their home in the United Kingdom.        In addition, the applicants dispute that they are of an "adaptable age", since the move has involved serious interruption to their settled lives and, for example, the removal of the second applicant from her schooling at the crucial age of moving from primary to secondary school. It has also in its effects infringed their physical and moral integrity. The applicants further argue that it is unreasonable and disproportionate to expect child British citizens to tolerate being exiled from the United Kingdom for the duration of their childhood, in effect, because they are of Jamaican ethnic origin. They refer to the general principle of international law prohibiting the expulsion of one's own nationals and that the United Kingdom cannot justify an interference with Article 8 (Art. 8) which breaches such a general principle.        Insofar as the applicants claim that the second, third and fourth applicants are being constructively deported from the United Kingdom of which they are citizens, the Commission notes that the United Kingdom has not ratified Protocol No. 4 (P4), which in Article 3 (Art. 3) provides that no-one shall be expelled from the territory of a State in which he is a national.   The Commission may therefore only examine the extent to which the removal of the first applicant affects the applicants' right to respect for their family or private life.        The Commission recalls according to its established case-law that, while Article 8 (Art. 8) of the Convention does not in itself guarantee a right to enter or remain in a particular country, issues may arise where a person is excluded or removed from a country where his close relatives reside or have the right to reside (see eg. 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. 8.7.82, D.R. 29, p. 205).        However, the Commission recalls that the State's obligation to admit to its territory aliens who are relatives of persons resident there will vary according to the circumstances of the case.   The Court has held that Article 8 (Art. 8) does not impose a general obligation on States to respect the choice of residence of a married couple or to accept the non-national spouse for settlement in that country (Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 94, para 68).   The Commission considers that this also applies to situations where members of a family, other than spouses, are non-nationals.   Whether removal or exclusion of a family member from a Contracting State is incompatible with the requirements of Article 8 (Art. 8) will depend on a number of factors: the extent to which family life is effectively ruptured, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (eg. history of breaches of immigration law) or considerations of public order (eg. serious or persistent offences) weighing in favour of exclusion (see eg. Nos. 9285/81, Dec. 6.7.82, D.R. 29 p. 205 and 11970/86, Dec. 13.7.87 unpublished).        In the present case, the applicant children are ten, five and one respectively and the latter two particularly will be young enough to adapt to the change in environment. The Commission finds that the material provided by the applicants does not disclose that their physical and moral integrity has been significantly interfered with by the move. The Commission is of the opinion that there are no insurmountable obstacles which prevent them from residing with the first applicant in Jamaica. It recalls that the first applicant, who had been brought up in Jamaica, entered as a visitor and did not obtain the necessary permission to settle in the United Kingdom on a longterm basis. It notes also the criminal offences of which the applicant was convicted and which led to the recommendation for deportation.        While Mr. Powell, husband of the first applicant and father of the second, third and fourth applicants, remains in the United Kingdom, the Commission recalls that he is serving a relatively short prison sentence and his contacts with the applicants were necessarily restricted even before they left for Jamaica.   The applicants have not substantiated their claim that there would be obstacles to him rejoining the applicants in Jamaica on his release. If it was the case that, due to decisions issued by competent authorities in both the United Kingdom and Jamaica, it was not possible for the family to live together, the Commission would find this to constitute a significant element to be taken into account in the assessment of the compatibility of a measure of exclusion of part of a family with the requirements of Article 8 (Art. 8) of the Convention.        In short, the Commission finds that there are no elements concerning respect for family or private life which in this case outweigh the valid considerations relating to the proper enforcement of immigration controls.   The removal accordingly does not exhibit a lack of respect for the applicants' right to respect for family or private life as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.        It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicants submit that the applicant children have been deprived of their right to a British education.        Article 2 of Protocol No. 1 (P1-2) of the Convention provides as relevant:        "No person shall be denied the right to education ....".        The Commission notes its findings above. In the circumstances of this case, it considers that the applicants' departure from the United Kingdom to accompany their mother, the first applicant, cannot be construed as a deprivation of the right to education.        It follows that this complaint is manifestly ill-founded within the meaning of Article 27, para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)