CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1997

.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. 29308/95                       by Sybil WILLIAMSON                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 21 May 1997, the following members being present:              Mrs.   J. LIDDY, President                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              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 3 September 1995 by Sybil WILLIAMSON against the United Kingdom and registered on 17 November 1995 under file No. 29308/95;        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 applicant is a Nigerian national, born in 1958, and resident in Mitcham.        The facts of the case, as submitted by the applicant, may be summarised as follows.        Between July 1977 and September 1980, the applicant resided lawfully in the United Kingdom for study purposes. It appears that the applicant further spent two months in the United Kingdom in 1985 and on 6 April 1988 obtained permission to stay in the United Kingdom as a visitor for a period of six months. Her subsequent application for a working permit was rejected and, consequently, she left the country at some unspecified point in time. On 3 May 1989 the applicant sought leave to enter the United Kingdom for business purposes, which was refused and she was removed to Nigeria.        In October 1991, the applicant was arrested and detained in the United Kingdom on charges of fraud and blackmail. In the course of the investigation it was found that the applicant was carrying a British passport which had been lawfully issued to another person. As it appeared that this passport had been used to travel to Nigeria in October 1991, it was concluded that she was not a British citizen and had unlawfully entered the United Kingdom. Her true identity was established in the course of the above criminal proceedings against her. It was further established that, in 1991, she was employed as a housekeeper by Mr W., the victim of the facts with which the applicant has been charged. Mr W. is an Australian national, born in 1936, and lawfully residing in the United Kingdom.        In the course of her pre-trial detention, the applicant was referred to two mental hospitals for an examination and treatment of certain psychological disorders of which she appeared to suffer.        The applicant was found fit to stand trial and, on 29 March 1994 following proceedings on appeal, was convicted of the charges against her and sentenced to five years' imprisonment. On 19 May 1993, the Secretary of State of the Home Office had stated that no steps as regards the applicant's removal from the United Kingdom would be taken until her appeal against sentence and conviction would have been resolved. The applicant was released after having served three and a half years.        On 26 April 1994, after having been served with notice as an illegal entrant, the applicant applied for asylum. On 5 May 1994 the applicant married Mr W. in London and subsequently filed an application to remain in the United Kingdom based upon this marriage. This application was refused on 15 September 1994 as the applicant was considered to be an illegal entrant and her marriage not genuine. The applicant filed an application for judicial review, but withdrew this application at some later point in time.        On 5 January 1995, the applicant's request for asylum was rejected and directions were given for her removal to Nigeria. She filed an appeal with the Adjudicator. On 14 July 1995, she requested an adjournment of the appeal hearing planned for 10 August 1995. She made this request on the basis that she was pregnant and expected to give birth at the end of November 1995, and that her pregnancy entailed serious medical problems. On 12 January 1996, the applicant gave birth to twins.        Accepting that the applicant could not attend and give evidence for reasons of health, the Adjudicator postponed the hearing planned for 2 August 1996 by one month.        On 4 September 1996, the Adjudicator adjourned the hearing given the applicant's apparent mental and physical state of health. Finding that there "is not a reasonable degree of likelihood that a useful hearing will take place" and that "a repeat of requests for adjournment and impracticable situations are likely to arise", the Adjudicator directed the applicant to submit a written statement before 5 November 1996 giving full details of her claim for asylum.        On 5 December 1996, the Immigration Service informed the Adjudicator that, as the applicant's marriage to Mr W. postdates the service of notice of illegal entry, neither her marriage or the subsequent birth of her children avail her.        To date, the proceedings before the Adjudicator are still pending. The applicant expects to give birth to a third child in June 1997.     COMPLAINT        The applicant complains that her deportation will constitute an unjust interference with her right to respect for her family and private life within the meaning of Article 8 of the Convention. She submits that her husband needs her constant care, in view of his poor health. She further submits that she has no relatives or other persons in Nigeria who could support her emotionally or financially, that both her husband and herself are unable to take care, as a single parent, of twin babies.   THE LAW        The applicant complains that her removal from the United Kingdom will be contrary to her rights under Article 8 (Art. 8) of the Convention.        This provision reads as follows:        "1.    Everyone has the right to respect for his private and      family life, his home and his correspondence.        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 question arises whether or not the applicant has exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention as the applicant withdrew her application for judicial review against the decision of 15 September 1994 in which the immigration authorities refused the applicant leave to remain on grounds of her marriage to Mr W.        Even assuming that the applicant has exhausted available and effective domestic remedies, the Commission considers that the application is in any event inadmissible for the following reasons.        The Commission recalls its established case-law that, although 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 or her close relatives reside or have the right to reside (cf. 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. 14852/89, Dec. 7.4.93, D.R. 74, p. 29).        However, the Commission further recalls that the State's obligation to admit to its territory alien relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest. The Court has held that, as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non- nationals into its territory and that, where immigration is concerned, 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 HR, Abdulaziz, Cabales and Balkandali v. United Kingdom judgment of 28 May 1985, Series A no. 94, p. 94, para. 68 and Ahmut v. the Netherlands judgment of 28 November 1996, to be published in Reports 1996, para. 67).        The Commission considers that the answer to the question 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 significant obstacles preventing the family living in the country of origin of one or more of them and whether there are factors of immigration control (eg. history of breaches of immigration law) or considerations of public order (cf. No. 9285/81, Dec. 6.7.82, D.R. 29, p. 205; No. 11970/86, Dec. 13.7.87 unpublished; No. 23938/94, Dec. 23.10.95, unpublished and No. 26985/95, Dec. 15.5.96, unpublished).        The Commission recalls that in previous cases it did not find it incompatible with Article 8 (Art. 8) of the Convention to expect children of illegal immigrants to follow their parents even if these children had acquired theoretical rights of abode in the deporting country (cf. No. 23938/94, Dec. 23.10.95, unpublished and No. 24865/94, Dec. 23.10.95, unpublished).        In the present case, the Commission notes that the applicant is an illegal entrant. The applicant's two children, who are just over one year old, are likely to follow their mother on removal. The Commission considers that the applicant's children can be expected to be able to adapt to the change in environment, in view of their very young age.        The Commission acknowledges that the contacts between the children and their father would be rendered difficult in the likely event that the children will accompany the applicant. However, the Commission considers that this situation flows from a choice exercised by the children's parents rather than from any direct interference by the State with these links. In this respect, the Commission notes that the applicant had already been served with notice as an illegal entrant before she married the children's father. Unlike the situation in the Berrehab case (Eur. Court HR, Berrehab v. the Netherlands judgment of 21 June 1988, Series A no. 138), Mr W. must accordingly be taken to have been aware of the applicant's precarious immigration status and the probable consequential effects on his relation with any children resulting from a relationship with her of the enforcement of the deportation order (cf. No. 26985/95, Dec. 15.5.96, unpublished). Moreover, the Commission does not find it established that it is impossible for Mr W. to accompany the applicant to Nigeria or to remain in contact with his wife and children abroad.        In these circumstances, the Commission finds that there are no elements concerning family or private life which in this case outweigh the valid considerations relating to the proper enforcement of immigration controls. It concludes that the applicant's deportation does not disclose a lack of respect for family or private life as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.        It follows that the application must be rejected 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.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber