CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 mai 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. 27949/95                       by Aaiza and Azam CHOUDRY                       against the United Kingdom        The European Commission of Human Rights sitting in private on 13 May 1996, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              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 22 May 1995 by Aaiza and Azam CHOUDRY against the United Kingdom and registered on 21 July 1995 under file No. 27949/95;      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      26 October 1995 and the observations in reply submitted by the      applicant on 30 October and 31 December 1995;        Having deliberated;        Decides as follows:   THE FACTS        The first applicant is a British citizen born in India in 1959 and resident in Peterborough. The second applicant, the first applicant's husband, is a Pakistani citizen born in Pakistan in 1955 and resident in Peterborough.        The applicants are represented before the Commission by Ms. Nuala Mole of the AIRE Centre, London.        The facts as submitted by the parties may be summarised as follows.        Particular circumstances of the case        The first applicant, born in India, has been settled in the United Kingdom for 19 years, having arrived in 1975 aged 16 for an arranged marriage.   In 1985, she became a British citizen. The marriage broke down after a short period and the   first applicant was divorced. She has a history of psychiatric disorders (depressive and hypomanic illness) and suicidal tendencies and has had continuous psychiatric treatment since 1988. This has on seven occasions required periods of hospital admission on occasion under the compulsory powers of the mental health legislation.        On 31 March 1994, the first applicant married the second applicant.        The second applicant has lived in the United Kingdom for about eight and a half years. He has lost an arm after an accident in 1967 and after another accident in 1982 his left leg was amputated. He since has been fitted with prostheses in the United Kingdom. All the second applicant's relatives, save his elderly parents, live in the United Kingdom. He arrived in the United Kingdom as a visitor to stay with his brother on or about 29 September 1985. Leave to remain as a visitor was extended until 30 June 1986 but a further request for an extension refused on 21 October 1986. His application for leave to remain in the United Kingdom as a dependant of his brother was refused on 3 November 1987 on the basis of failure to produce the requested evidence of dependence. He was given a further opportunity to establish his claim to dependency but in light of findings that he had been living independently in Pakistan before his arrival the renewed application was refused on 27 April 1989. On 23 May 1991, he was served with a notice of intention to deport him for overstaying his leave. His appeal against this decision was dismissed by an adjudicator on 13 March 1992. He made further representations and he was re-interviewed about his circumstances on 17 June 1993. A deportation order was signed on 20 September 1993 and served on him on 26 March 1994.        The second applicant made an application to remain on the basis of his marriage to the first applicant, a British citizen. This application was refused on 24 May 1994. Further representations were made on his behalf but on 19 May 1995, the Secretary of State informed the applicants that he maintained his decision of refusal of entry. In that letter, the Secretary of State stated that medical support did exist for the first applicant in Pakistan and there was no evidence that she would be denied access to it. He also noted that before arriving in the United Kingdom the second applicant had lived in Mirpur and he was not persuaded that the couple would not be able to live in that city or that they would be obliged to live in rural Pakistan as suggested.        The applicants applied for judicial review of the Secretary of State's decision. Leave was refused and the renewed application for leave was rejected by the Court of Appeal on 17 July 1995. Removal directions were set for 27 July 1995.        By letter dated 30 October 1995, the applicants' representatives informed the Commission that the first applicant, exercising the rights conferred on her by European Community law, took up residence in Ireland with the second applicant, where she continues to receive the appropriate psychiatric supervision and her husband has the possibility to maintain his prostheses. They state that pursuant to the applicable Community law the second applicant will, after residing for the relevant qualifying period in Ireland, be able to return to the United Kingdom with the first applicant.   COMPLAINTS        The applicants invoke Articles 2, 3, 8 and 13 of the Convention.        As regards the first applicant, the applicants submit that the medical condition of the first applicant shows that her husband's deportation will cause her already precarious mental health to suffer serious deterioration. There is a medical report which refers to the risk of a serious relapse and a prediction that in light of her history there is "every likelihood" that she will engage in acts of self- destruction. It is alleged that she will be unable to   obtain the necessary psychiatric and counselling treatment in Pakistan and she is on medication which requires constant monitoring, which is also unlikely to be available in Pakistan. She has no family or other links with Pakistan apart from her connection with her husband.        As regards the second applicant, the applicants submit that he will be unable to use in Pakistan the efficient and comfortable prostheses which enable him now to lead an almost normal life. In   hot weather prostheses become highly uncomfortable to wear and cause the limb stumps to become inflamed. Also in Pakistan, there would not be the orthopaedic facilities of the quality now available to him with the servicing, repairing and improvement of his prostheses. Further, it is submitted that he has cooperated throughout with the immigration authorities, is in employment and has no criminal record. All his family, save his elderly parents who have a pending application to enter the United Kingdom as dependents of his brother, are now resident in the United Kingdom.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 22 May 1995. On 20 July 1995, the applicant's lawyer requested that the Commission indicate interim measures concerning the removal of the second applicant pursuant to Rule 36 of the Commission's Rules of Procedure. On 21 July 1995, the Acting President refused to do so. However, on that date, the application was registered and notice of it was given to the United Kingdom under Rule 46 of the Rules of Procedure.        On 11 September 1996, the Commission decided to invite the Government to make written submissions on the admissibility and merits of the application. It decided to give the case priority pursuant to Rule 33 of its Rules of Procedure.        The Government's written observations were submitted on 26 October 1995 after one extension of the time-limit fixed for that purpose.   The applicants supplied further information and comments on 30 October 1995 and in their observations in reply to the Government on 31 December 1995, also after an extension in the time-limit.   THE LAW        The applicants complain that the proposed deportation of the second applicant from the United Kingdom disclosed violations of Articles 2 (Art. 2) (right to life), 3 (Art. 3) (prohibition against inhuman and degrading treatment) 8 (Art. 8) (right to respect for family and private life) and 13 (Art. 13) (right to an effective remedy before national authorities) of the   Convention.        As regards the alleged threat to the life of the first applicant, the Government dispute the extent to which they can be under an obligation to take positive steps to prevent some-one committing suicide and that in any case such an obligation cannot extend to not taking a lawful measure. Further the necessary causal link to the suicide is absent, the proximate cause being the decision of the individual. The Government point out that there is no allegation that the applicants will be subject to any ill-treatment by the Pakistan authorities. The treatment   in question falls far short of the level of inhuman and degrading which is prohibited under Article 3 (Art. 3); in particular, the first applicant's psychiatric illness can be treated in Pakistan and it is not accepted that there will be any worsening of her mental health; it is not accepted that the second applicant would find it more difficult to use his artificial limbs but, even if he did, this would not amount to inhuman or degrading treatment, since in particular he lived and worked for most of his life in Pakistan before his arrival in the United Kingdom.        In relation to the applicants' complaints under Article 8 (Art. 8) of the Convention, the Government submit that there is nothing to stop the applicants establishing their family life in Pakistan. They re-iterate that the second applicant lived and worked there before. Thus the measure is proportionate to the legitimate aim of maintaining the integrity of its immigration system in protection of the economic well-being of the country, in particular since the second applicant had overstayed his leave and married in the knowledge of the pending deportation order. They dispute that the first applicant's British citizenship confers on her in the context of her right to respect for her private life any rights to social and economic benefits of living in the United Kingdom.        Under Article 13 (Art. 13), the Government rely on the right of appeal against the deportation to an adjudicator, which the second applicant exercised in this case.        For their part, the applicants submit that the United Kingdom must incur a positive obligation under Article 2 (Art. 2) where there is real risk that their action will endanger the life of an applicant. They submit that the medical evidence indicates that the threatened removal of her husband will exacerbate a long-existing condition to the point that it will become life-threatening. They state that she will be unable to receive the necessary treatment for that condition in Pakistan.        The applicants rely on various decisions of the Convention organs which indicate that treatment contrary to Article 3 (Art. 3) may arise from circumstances to which an individual is subjected eg. lack of medical care, and not restricted to deliberate ill-treatment. They contend that the exceptional circumstances of their case do meet the severity test under Article 3 (Art. 3), in light of the effect that the first applicant's mental health and the second applicant's physical handicaps will have either on their forced separation from each other or their removal together to a difficult environment. They submit that the second applicant will not be able to use his new prostheses in Pakistan and will be reduced once more from being a whole person to a one armed one legged man.        The applicants dispute that it is reasonable to expect them to establish their family and private life in Pakistan. The second applicant, due to his age and disabilities, will find it difficult to work and support the family and both would suffer major disruptions to their private life, to which concept they claim should be attached a wider significance than that proposed by the Government. Even though it now appears that they will eventually be able to return to the United Kingdom from Ireland, they submit that it is quite disproportionate to the aim pursued by the United Kingdom Government that these two exceptionally vulnerable people should have been obliged to uproot themselves to make use of the community law option open to them.        Finally, as regards Article 13 (Art. 13) of the Convention and lack of effective remedies, the applicants contend that since the second applicant falls outside the scope of the applicable immigration rules on marriage policy the decision as to whether to grant leave to remain lies solely with the Secretary of State and is not subject to review by any court.        The Commission notes however that since communication of this case, to which it attributed priority, the applicants have gone to live in Ireland where it is said that they are able to receive all necessary treatment and facilities and to continue their business activities. In these circumstances, the Commission finds that they can no longer claim to be victims of any risk to life or of being subjected to inhuman and degrading treatment contrary to Articles 2 and 3 (Art. 2, 3) of the Convention. In this context, it notes that the risk incurred by a deportation must be assessed as at the time the deportation is to take place (Application No. 22414/93, Chahal v. the United Kingdom, Comm. Rep. 27.6.95 para. 107, pending before the Court). It follows that where a proposed deportation does not in fact take place and the threat no longer exists, as in this case, no issues remain for consideration. The Commission is not persuaded, on the facts of this case, that the existence of the deportation order, which placed the second applicant under threat of removal until the applicants went to live in Ireland, could by itself be regarded as disclosing any appearance of a breach of Articles 2 or 3 (Art. of the Convention.        As regards the question whether nonetheless there has been an interference with family and private life, since the applicants consider that they were obliged to leave the United Kingdom to live in Ireland in order to avoid execution of the deportation order, the Commission recalls that according to established case-law 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).   Whether removal or exclusion of a family member from a Contracting State is incompatible with the requirements of Article 8 will depend on a number of factors: the extent to which family life is (Art. 8) 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 applicants have to all appearances succeeded in continuing with their family life in Ireland, where they are able to receive all necessary care and facilities and continue their business activities. The Commission notes that they consider that after the relevant qualifying period under applicable community law they will be able to return, if they so wish, to the United Kingdom. The Commission does not consider that the availability of the "community law route" embarked upon by the applicants to obtain residence rights in the United Kingdom is sufficient to render the decision of the United Kingdom to issue a deportation order against the second applicant a disproportionate measure for the purposes of Article 8 (Art. 8) of the Convention. In this context, the Commission observes that the applicants have not drawn its attention to any significant elements of hardship nor does it find any appearance of arbitrariness or unreasonableness in the decision-making procedure of the immigration authorities, the applicants having married in full knowledge of the existence of the deportation order.        The Commission concludes that the facts of the case fail to disclose any lack of respect for the applicant's rights to family or private life as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.        Finally, as regards Article 13 (Art. 13) of the Convention, the Commission recalls that this provision does not require a remedy under domestic law in respect of any alleged violation of the Convention. It only applies if the individual can be said to have an "arguable claim" of a violation of the Convention (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52). The Commission finds that the applicants cannot be said, in light of its findings above, to have an "arguable claim" of a violation of their Convention rights.        It follows that the application   must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission             President of the Commission         (H.C. KRÜGER)                             (S. TRECHSEL)