CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 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. 26985/95                       by Ama POKU and others                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 15 May 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. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  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 31 March 1995 by Ama POKU and others against the United Kingdom and registered on 6 April 1995 under file No. 26985/95;        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      7 July 1995 and the observations in reply submitted by the      applicants on 5 October 1995;        Having deliberated;        Decides as follows:     THE FACTS        The applicants are named as being:   1. Jason Poku, born on 22 May 1995, is a British citizen and the son of the second and fourth applicants; 2. Ama Serwah Poku, citizen of Ghana; 3. Jermaine Kessie Adjei, born in 1992, British citizen, child of the second and fourth applicants; 4. Samuel Kessie Adjei, husband of the second applicant, a citizen of Ghana, with the permanent legal residence in the United Kingdom acquired in 1991 by virtue of his earlier marriage to a British citizen; 5. Michael Fybrace, born in 1986, entitled to British citizenship by registration as from 10 July 1996,, son of the second applicant by a previous relationship with the sixth applicant; 6. Owen Fybrace, father of the fifth applicant (with parental responsibility order), British citizen; 7. Sarah Adjei, British citizen, daughter of the fourth applicant by previous marriage, born on 14 June 1990.        The applicants are represented by Ms. Nuala Mole of the AIRE Centre in London. The facts as submitted by the parties may be summarised as follows.        Ama Poku, the second applicant, was given leave to remain in the United Kingdom on 16 March 1985. Her leave expired on 30 November 1985.        Ama Poku gave birth to Michael, the fifth applicant, on 10 July 1986. He was the son of Owen Fybrace, the sixth applicant. Owen Fybrace and Ama Poku had a steady relationship for approximately four and a half years though did not cohabit.        Ama Poku was apprehended on 12 October 1989 and served with a notice of intention to deport. Her appeal against the decision to deport was dismissed on 20 March 1990 and leave to appeal to the Immigration Appeal Tribunal refused on 18 July 1990.        Jermaine, the third applicant, was born on 16 January 1992. His father was Samuel Adjei, the fourth applicant.        On 8 February 1994, Ama Poku was arrested and served with a deportation order.        On 31 August 1994, Ama Poku married Samuel Adjei, the fourth applicant.        An application was made for judicial review, challenging the deportation. The application for leave was rejected on 11 October 1994 and the renewed application refused on 1 December 1994.        In January 1995, Ama Poku, who was pregnant, was threatened with a spontaneous abortion and a shirodkar stitch was inserted in an attempt to save the pregnancy. She was ordered as much bed rest as possible. She has a very difficult gynaecological and obstetric history. She has had six miscarriages, the most recent in 1991 which had occurred despite the insertion of a stitch. She has never carried a child to full term. In the case of Michael, her waters broke at 19 weeks and she was hospitalised, the baby eventually being born at 26 weeks, weighing 600 grams and requiring to be kept in an incubator for 3 months and to be given blood transfusions. In the case of Jermaine, her waters again broke at 19 weeks and the child born prematurely at 29 weeks, weighing 1.29 kg and requiring to be kept in an incubator for three weeks.        The Court of Appeal refused the renewed application for judicial review on 10 March 1995 finding that there was no error of law and that the decision to deport was irrational.        Ama Poku was diagnosed at that time as suffering from gestational diabetes and she attended the ante natal clinic at St. Thomas's Hospital for monitoring each week. She also received a scan once per week.        Directions for removal were issued and a date for deportation set for 2 April 1995. The Government however gave an undertaking not to deport Ama Poku for one week pending receipt of further medical reports on her condition.        On 22 May 1995, Jason was born prematurely (32 weeks). Due to Ama Poku's worsening condition (hypertension and proteinuria), it had been to induce labour and following further difficulties, an emergency caesarian section was performed. Due to respiratory difficulties, Jason was put on a ventilator for five days and received supplemental oxygen for a further four days. His health is now good and he is expected to have a completely healthy outcome. Ama Poku made a good recovery and was discharged after eight days.        Samuel Adjei was previously married on 15 July 1989. He was divorced on 30 November 1993. The daughter of the marriage, Sarah, continues to live with her mother. However, Samuel Adjei has maintained regular and frequent contact with Sarah since separating from her mother. In particular, she spends weekends with him if he is not working and when his shift covers a weekend, he sees her during the week. During holidays, she spends approximately half the time with him.        After the breakdown of his relationship with Ama Poku, Owen Fybrace continued to see his son, Michael, approximately once every one or two weeks.This contact ceased in about mid 1991 but recommenced in mid 1993, after which Owen Fybrace saw Michael once a week. On the occasional week, he did not see Michael, he would telephone. Since October 1995, Owen Fybrace has no seen Michael on a regular basis but keeps in contact by telephone.   COMPLAINTS        Articles 2 and 3 of the Convention        The deportation is alleged, at the time of introduction of the application, to have posed an immediate threat to the life of the unborn child and to the health of Ama Poku, the mother. The applicants refer to medical reports which indicated that she was not fit to travel and gave details of the applicant's medical history in regard to premature delivery. While the deportation was not carried out at that time, the applicants allege that it imposed inhuman suffering contrary to Article 3 due to the anguish which the threat of removal in these circumstances inflicted on Ama Poku.        Article 3 is also invoked in respect of the three children, Michael, Jermaine and Jason, with regard to the situation of constructive deportation which might arise if they are obliged to leave the United Kingdom to accompany their mother.        Article 8 of the Convention        The deportation is alleged to interfere with the right to respect for the family and private life of all the applicants. The removal of the second applicant will disrupt the stable family unit in which they live and if the children accompany her they will lose the benefits of their entitlement of residence in the United Kingdom and lose contact with their respective fathers. Samuel Adjei, who is the family's principal breadwinner, cannot be expected to leave his job and his earnings are insufficient to allow him to send financial support to Ghana. Further, Ama Poku no longer has any relatives in Ghana and no home to go to there.        Article 13 of the Convention        It is alleged that domestic law fails to provide sufficient protection or remedy in respect of the threatened violations of Articles 3 and 8.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 31 March 1995 and registered on 6 April 1995. On 6 April 1995, the Commission (First Chamber) indicated to the United Kingdom pursuant to Rule 36 of the Commission's Rules of Procedure that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Commission not to deport the applicant, Ama Poku.        The Government's written observations were submitted on 7 July 1995 after one extension of the time-limit fixed for that purpose.   The applicants replied on 5 October 1995.        The Commission prolonged the interim measures pursuant to Rule 36 of its Rules of Procedure on 25 May, 4 July, 13 September and 24 October 1995. On 24 October 1995, the Commission requested information from the applicants concerning the state of health of Ama Poku and her baby. Following the submission of information on 7 December 1995, the Commission decided the same day not to prolong its indication under Rule 36 of its Rules of Procedure.        By letter dated 2 April 1996, the applicants provided further information.   THE LAW   1.    The applicants complain that the proposed expulsion of Ama Poku posed an immediate risk to the life of herself and the unborn child (subsequently born and named Jason) identified as the first applicant. They invoke Article 2 (Art. 2) of the Convention which provides in its first paragraph that "Everyone's right to life shall be protected by law."      The Government submit that since no deportation took place before the first applicant was born this complaint is largely academic.        The applicants submit that Ama Poku would have been deported to Ghana while pregnant but for the request by the Commission to the Government to suspend enforcement of the deportation pursuant to Rule 36 of the Commission's Rules of Procedure. They argue that a threat, which is sufficiently real and immediate, of conduct prohibited by the Convention may conflict with its provisions.        The Commission notes that according to its case-law under Article 3 (Art. 3) the assessment of whether on expulsion an applicant faces risk of treatment contrary to that provision must be made in relation to the time and on the basis of information available when the expulsion is to take place (see eg. Chahal family v. the United Kingdom, No. 22414/93, Comm. Rep. 27.6.95 pending before the Court). Since, as the Government points out, Ama Poku was not in fact deported before the birth of the first applicant in the United Kingdom, and the material before the Commission indicates that there is no immediate or significant risk to health of either Ama Poku or her baby at the present time, the Commission finds no basis on which the pending deportation measure can be found to disclose a violation of Article 2 (Art. 2) of the Convention. The Commission does not accept that on the facts of this case the threat of the deportation by itself in the circumstances pertaining at the time of the introduction of the application disclose any appearance of a violation of Article 2 (Art. 2). In that context, it would note that there is no evidence of any immediate life-threatening   effect on the health suffered by Ama Poku or the baby as a result of the deportation proceedings: the complications surrounding the birth were anticipated by her previousmedical history and the applicants have not suggested that the course of the birth was materially affected in any way. The element of psychological suffering falls to be examined separately under Article 3 (Art. 3) of the Convention below.   It follows that this complaint 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 threat of the deportation during her pregnancy inflicted on Ama Poku considerable anguish. The continued threat of removal or separation from their mother or respective fathers hanging over the heads of child applicants is also alleged to constitute inhuman and degrading treatment. The applicants 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 Government submit that it would be the choice of the applicants if the child applicants remain in the United Kingdom rather than accompany Ama Poku, their mother. The facts of the case, in their view, fail to reveal any kind of treatment contrary to Article 3 (Art. 3), in particular, since no physical ill-treatment of Ama Poku by the United Kingdom is alleged and the circumstances of the case are far removed from any kind of treatment that can properly be called inhuman or degrading.   The applicants underline the suffering which Ama Poku was subject to pending the threat of deportation, describing how she was "hysterical with fear" of the consequences to her unborn child. As regards the effect of the proposed deportation on the child applicants at the present time, the applicants refer to the nature of the measure as analogous to constructive exile, which punishment is inhuman and degrading when imposed an innocent child. The prospect of separation from a parent for a child is also of such a nature and degree as to raise issues under Article 3 (Art. 3) of the Convention.        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).        In respect of the psychological impact on Ama Poku of the proposed deportation during her pregnancy, the Commission sees no reason to doubt the claim that this inflicted on her considerable anguish. In the absence however of any substantiated effect on her physical or psychological health, the Commission is not satisfied that the uncertainty and anxiety engendered by the situation was such as to reach the minimum level of severity required by Article 3 (Art. 3) of the Convention.        In respect of the position of the applicant children, the Commission notes that if Ama Poku is deported, three (Jermaine, Jason and Michael) will potentially have the choice of accompanying her to Ghana or remaining without her in the United Kingdom. Having regard to the different paternal relationships in existence, this may mean that these children will be either separated from their mother or in the case of Michael lose the possibility of contact with his natural father applicant. In the case of Sarah, there is the possibility that her father will choose to accompany Ama Poku, his wife, to Ghana and she will cease to enjoy regular and frequent contact with him.        The Commission does not consider that this situation discloses treatment falling to be classified as inhuman or degrading within the meaning of Article 3 (Art. 3) of the Convention. Nor does the Commission regard the possibility that the children might leave the United Kingdom, where they legally have the right to reside, as constituting punishment for the purposes of that provision. The Commission would observe that the implementation of lawful immigration measures against one member of a family will inevitably entail effects on the existing relationships with other members of that family. It considers that it would only in exceptional circumstances, for example, where there is a substantiated level of intense physical and mental suffering as a direct result of the implementation of the immigration measure or where there was a particular aggravating factor (eg. discrimination as in the East African Asians case, Comm. Rep. 14.12.73 D.R. 78-A p. 5) that an issue would be likely to arise under Article 3 (Art. 3). Where however the essence of the complaint is the impact of the measure on family relationships, the Commission considers that the matter is more appropriately to be examined under Article 8 (Art. 8) of the Convention.        The Commission concludes therefore that the facts of the present case fail to disclose any appearance of a violation of Article 3 (Art. 3) of the Convention and must be rejected as manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicants complain that the proposed deportation of Ama Poku interferes with their right to their family and private life.         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 the Commission case-law to the effect that it is compatible with Article 8 (Art. 8) to expect children of unlawful residents to follow their parents abroad. They point out that the children are young and of an adaptable age, emphasise Ama Poku's "very bad immigration history" and submit that the extended family relationships between Michael and Owen Fybrace and Samuel and Sarah Adjei are not of such a nature or degree as to outweigh the legitimate interest in immigration controls.        The applicants emphasise that they are all British citizens or have a permanent right to reside in the United Kingdom, save Ama Poku. Previous cases relied on by the Government involved the situation where both parents had no right to remain and were being deported. Further it is not reasonable to expect the applicants to continue their family life in Ghana since the older children are well-settled into the educational system; Michael will lose regular contact with his father; Samuel Adjei will lose his legal residence rights in the United Kingdom and also lose contact with Sarah, his daughter by a previous marriage.        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 notes 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 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).        The Commission recalls that in this case all the applicants, save Ama Poku, are either British citizens or have a permanent right to remain in the United Kingdom. The Commission notes however that in previous cases the factor of the citizenship has not been considered of particular significance (eg. No. 11970/86, dec. 13.7.87, unpublished, where the Commission found it compatible with Article 8 (Art. 8) to expect children of unlawful overstayers to follow their parents even if they had acquired theoretical rights of abode in the deporting country; and Nos. 23938/94 Sorabjee v. the United Kingdom, dec. 23.10.95 and 24865/94 Jaramillo v. the United Kingdom dec. 23.10.95, where the Commission found no material distinction as to whether the children had acquired citizenship by ius soli or ius sanguinis).        As regards her husband, Samuel Adjei and their two children Jason and Jermaine, the Commission notes that there are no obstacles effectively preventing them from accompanying Ama Poku and establishing their family life in Ghana. The Commission has had regard to the adaptable ages of the children, aged four and one respectively. As regards however Samuel Adjei's relationship with his daughter Sarah by another marriage, the Commission observes that if he decides to accompany Ama Poku, his wife, this will interrupt the frequent and regular contact which he enjoys with Sarah who lives with her mother in the United Kingdom. The Commission recalls however that Samuel Adjei and Ama Poku married in August 1994 when she had already been subject to immigration proceedings and a deportation order had been served. He must accordingly be taken to have been aware of her precarious immigration status and the probable consequential effects on his other family relationships by the enforcement of the deportation order. While his daughter Sarah may also claim that her family life is affected and cannot be said to be in the same position as her father, the Commission considers that her situation also flows from the choice exercised by her father rather from any direct interference by the State with her family relationships. In this respect, her situation can be distinguished from that of the child in the Berrehab case (Eur. Court H.R. Berrehab judgment of 21 June 1988, Series A no. 138) where the father himself was the subject of the expulsion measure by the State which was found to disclose a violation of their right to respect for for family life.        As regards Ama Poku's son Michael and the effect on his relationship with his father Owen Fybrace, the Commission notes that contact has been somewhat irregular and now appears to have diminished to contact by phone only. The resulting effect on their existing "family life" if he left would accordingly appear to be minimal. While Michael is older than Jason and Jermaine and has been integrated into the United Kingdom school system, the Commission finds no indication of any factor which would effectively prevent him from adapting to life with his family elsewhere.        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. It concludes that the removal does not disclose a lack of respect for the applicants' rights to 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.   4.    Finally, the applicants invoke Article 13 (Art. 13) of the Convention, which provides that :        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        The Commission recalls however that Article 13 (Art. 13) 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 this complaint 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 First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L ROZAKIS)