CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 septembre 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 }                          Application No. 24521/94                       by Sammy Martin DAVIS and others                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 4 September 1996, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  G.B. REFFI                  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 8 March 1994 by Sammy Martin DAVIS and others against the United Kingdom and registered on 4 July 1994 under file No. 24521/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the further information submitted by the applicants on 3 May 1996      and the further information provided by the respondent Government      by letter dated 18 June 1996.        Having deliberated;        Decides as follows:   THE FACTS        The first applicant is a Ghanaian citizen born in 1946 and resident in Ghana. The second applicant, also a Ghanaian citizen, is his wife and resides in London. The third to fifth applicants are their sons, born in 1979, 1981 and 1991 respectively. They reside with their mother. The third and fourth applicants have United Kingdom citizenship whereas the fifth applicant, due to the fact that he was born after the British Nationality Act 1981 came into force, has not.     On 21 April 1994 the second applicant was granted indefinite leave to remain in the United Kingdom in accordance with the stated policy of the United Kingdom Government not to deport people who have been in that country for more than fourteen years in the absence of any strong countervailing factors. The fifth applicant was also, as is usual, granted leave in line with the mother.        Before the Commission the applicants are represented by Ms. Nuala Mole of the AIRE Centre in London.        The facts of the case, as submitted by the applicants, may be summarised as follows.        The first applicant entered the United Kingdom in the early seventies. His wife joined him in 1977. For twelve years the first applicant worked as a storekeeper and for two years as a minicab driver without, however, regularising his stay.        On 24 July 1987 the first applicant was convicted by the Central Criminal Court of two charges of rape and of possession of a false passport and sentenced to six years' imprisonment. He was not recommended for deportation. An appeal against the conviction and sentence was refused on 18 May 1988.        On 18 September 1989 the Secretary of State made a decision to deport the first applicant. The Immigration Appeal Tribunal adjourned its hearing of the first applicant's appeal against the decision to deport several times, pending the determination by the Secretary of State of several petitions to use his powers pursuant to Section 17 of the Criminal Appeal Act 1968 to refer the first applicant's conviction for rape back to the Court of Appeal following the discovery of fresh evidence. The Secretary of State refused these petitions on 22 February 1991 and 14 October 1991.        On 29 October 1991 the Immigration Appeal Tribunal dismissed the first applicant's appeal against the decision to deport. Two subsequent applications for leave to move for judicial review were refused.        On 14 February 1994, pursuant to the re-opening of the case at the instigation of "Justice", the United Kingdom branch of the International Commission of Jurists, the Secretary of State refused to disclose the findings of the Metropolitan Police in their investigation and again refused a petition to refer the first applicant's conviction for rape back to the Court of Appeal.   On 23 February 1994 lawyers acting for the first applicant lodged an application with the Court of Appeal in order to compel the Secretary of State to make this new evidence, which apparently shed considerable light on several hitherto unexplained matters, available to them.         On the same date, prior to the listing of the aforesaid application before the Court of Appeal, the deportation order was served on the first applicant. Removal directions were set for 8 March 1994 on which date the first applicant was deported to Ghana.        On 31 October 1994 the Secretary of State refused the first applicant's application of 31 August 1994 for the revocation of the deportation order.        On 28 November 1994 the Court of Appeal quashed the Secretary of State's decision not to refer the first applicant's conviction back to the Court of Appeal and not to disclose the new evidence. On 20 January 1995 the first applicant's counsel were informed that the Secretary of State had decided to refer the case back to the Court of Appeal.   Consequently a further application was made to the Secretary of State requesting him to revoke the first applicant's deportation order.        On 4 September 1995 the Secretary of State granted the first applicant temporary admission to the United Kingdom in order that he could be present at the reconsideration of his case by the Court of Appeal.   The applicant arrived in the United Kingdom on 3 October 1995 and was granted leave to remain until 3 January 1996.        On 5 December 1995 the Court of Appeal upheld the applicant's conviction on the basis that the evidence before the court was insufficient to warrant the quashing of the original conviction as unsafe and unsatisfactory.        On 25 January 1996, further to the hearing of 13 December 1995, the adjudicator allowed the applicant's appeal against the refusal of the Secretary of State to revoke the deportation order.   The adjudicator stated that having considered the totality of the evidence, exceptional circumstances existed that made the refusal of the Secretary of State to revoke the deportation order not the right course on the merits.        On 10 April 1996 the Secretary of State granted the applicant temporary leave to remain as a spouse for one year, with the option to apply thereafter for indefinite leave to remain.   COMPLAINTS        The applicants complained that the deportation of the first applicant, at a time when the safety of the latter's conviction for rape was still the subject of litigation, constituted a violation of their right to respect for their family and private life which cannot be justified under any of the grounds of para. 2 of Article 8 of the Convention. The removal of the first applicant disrupted the stable family unit which the applicants had formed again after the first applicant had served his prison sentence. The third to fifth applicants submit that it would have been unreasonable to expect them to join their father in Ghana, a country with which their only link is that of descent. Furthermore, the third and fourth applicants, who have held British nationality from birth, were well integrated into their community and were doing well at school. It is submitted that they were not of an adaptable age.        The first applicant further complained of discriminatory treatment contrary to Article 14 of the Convention, in that his deportation following his prison sentence constituted an additional punishment which could not have been imposed on United Kingdom nationals.        The third and fourth applicants also invoked Article 14 of the Convention. They submitted that in order to have enjoyed family life with their deported father they would, unlike other children with United Kingdom citizenship, have had to forego their private life right to reside in the country of their birth and nationality.        The applicants finally complained that they did not have an effective remedy before a national authority within the meaning of Article 13 of the Convention in respect of the alleged violations outlined above. While referring to the Court's Berrehab judgment (Eur. Court H.R., judgment of 21 June 1988, Series A no. 138) they contended that British immigration rules do not contain a provision to permit a parent to remain in the United Kingdom on the basis of his or her relationship to a minor child who is a United Kingdom citizen.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 8 March 1994 and registered on 4 July 1994.        On 24 October 1995 the Commission decided to give notice of the application to the respondent Government pursuant to Rule 48 para. 2(b) of its Rules of Procedure without, at that stage, inviting the respondent Government to submit written observations on the admissibility and merits of the application.        By letter dated 26 April 1996 the applicants' representative informed the Commission that the first applicant had been granted leave to remain in the United Kingdom as a foreign spouse for a period of one year, with the option to apply thereafter for indefinite leave to remain.        By letter dated 18 June 1996 the Agent of the respondent Government also informed the Commission that the first applicant had been granted leave to remain in the United Kingdom as a foreign spouse on 20 March 1996 for a period of 12 months.        By fax dated 28 June 1996 the applicants' representative informed the Commission of the applicants' intention to withdraw their application.   REASONS FOR THE DECISION        In view of the declaration by the applicants' lawyer that the applicants wish to withdraw their application registered under file No. 24521/94, the Commission finds that the applicants no longer intend to pursue their petition within the meaning of Article 30 para. 1(a) of the Convention.        The Commission further considers that respect for Human Rights as defined in the Convention does not require it to continue with the examination of the application.   The Commission therefore accepts the applicants' request to withdraw the application.        It follows that the application may be struck off the list of cases pursuant to Article 30 para. 1 of the Convention.        For these reasons, the Commission, unanimously,        DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber