CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 23 octobre 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. 33185/96                       by Olufunke AYOOLA                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 23 October 1997, the following members being present:              Mrs    J. LIDDY, President            MM     M.P. PELLONPÄÄ                  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 13 June 1996 by Olufunke AYOOLA against the United Kingdom and registered on 25 September 1996 under file No. 33185/96;        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      13 March 1997 and the observations in reply submitted by the      applicant on 9 July 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a citizen of Nigeria.   She was born in 1961, and is represented before the Commission by Ms H. Tyrrell, Solicitor, of North Kensington Law Centre, London.   The facts of the application, as submitted by the parties, may be summarised as follows.        The applicant's mother and two brothers are settled and resident in the UK.   The applicant first arrived in the United Kingdom in August 1977.   She was given leave to remain, initially as a visitor and later as a student.   She completed her studies and returned to Nigeria in September 1983, where she obtained employment.        The applicant returned to the United Kingdom on a visit from October to December 1983, and on three further short visits between then and July 1988.        Between 1986 and 1987 she contracted typhoid fever and suffered in a car crash.   Traumatised by these injuries she also suffered long term psychological difficulties.        In 1988 the applicant's brother invited the applicant for a holiday.   In July 1988 she was granted leave to enter as a visitor for 6 months.   Since then she has been trying to remain in the United Kingdom and was able to do so as a student until 22 October 1991.        An application for indefinite leave to remain was refused on 20 September 1991.   The applicant's appeal against this decision was dismissed by an adjudicator on 2 October 1992.        A further application for indefinite leave to remain on compassionate grounds was refused on 20 September 1993 as the applicant had not submitted evidence to support the application for leave.   A notice to deport was served on 21 April 1994.   In dismissing an appeal against the notice on 15 December 1994, the adjudicator noted that the applicant had recovered physically from the effects of the typhoid fever, but was still psychologically upset and depressed.   She also noted the applicant's emotional ties with her mother and two brothers, and that she was well enough to attend Bible College and to undertake computer studies.   She concluded: "Weighing up the evidence, it is only that the bulk of the family are in the United Kingdom which persuades me to recommend to the Secretary of State that he should look sympathetically at the [applicant's] case, and allow her stay."        A deportation order was made against the applicant on 12 July 1995.   The applicant applied for judicial review of the deportation order.   In her application she referred, inter alia, to an opinion of the Department of Health that appropriate medical treatment would be available in Nigeria.   She stated that that opinion was "open to serious challenge", as in fact the medical facilities in Nigeria are woefully inadequate, especially for a person with very little means. The application was refused by the High Court on 16 January 1996.   The judge stated that Parliament had said that it was for the Secretary of State to decide such matters, and not judges.   The judge's task, notwithstanding that the applicant had a compelling case in many ways, was to determine whether no reasonable Secretary of State could have reached the decision.   He was unable so to conclude, but added that he did not "make [his] decision with any great enthusiasm".   He concluded "... it does seem to me that everything has been considered and everything that could possible be urged upon the Secretary of State has been put forward.   In the end one has to apply the law as it is and I must accordingly refuse leave."        On 29 May 1996 removal directions to Nigeria were issued.   Those directions have not, to date, been executed.   COMPLAINTS        The applicant claims that if deported, she will lose contact with close family members.   She alleges violation of Article 8 of the Convention.        The applicant underlines that she is highly qualified (she has a first class honours degree in chemistry).   She occupies her time with bible and computer studies.   She suffers from anxiety and depression, and requires intermittent surgery for a cleft palate.   Her mother and three older brothers have indefinite leave to remain in the United Kingdom; the applicant and her mother, who live very near to each other, see each other at least once a week and speak on the telephone every other day.   The applicant sees her three brothers at least once a week.   She also has eight nieces and nephews in the United Kingdom to whom she is very close.        The applicant claims that she is especially dependent on her family because of her history of anxiety and depression, as is supported by psychiatric evidence.   The applicant's connection with Nigeria is weak - although she has a father and brother there, she is not close to them.   After 14 years in the United Kingdom, she feels that it is her home.   Separation from her mother and brothers in the United Kingdom would cause enormous distress.        The applicant contends that interference with her privacy and family life cannot be justified as she did not enter the country illegally, has no criminal record, and has academic qualifications which will make it possible for her to support herself.   She has not received state welfare benefits.   The applicant considers that her mother cannot be expected to follow her to Nigeria because of the health problems for which she was given leave to remain in the United Kingdom, and her three brothers all have academic careers and families in the United Kingdom.        The applicant has presented a psychiatric report on her condition which concludes that she is a vulnerable individual, who can be pushed into disabling psychiatric illness by adverse experiences.   The support of her family could help her to consolidate the improvements which have been registered over the years.        During the applicant's stay in the UK she has also undergone four operations in order to repair cleft lip and palate, and further surgical intervention may be required.   The applicant claims that adequate medical treatment will not be available in Nigeria if she is returned.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 13 June 1996 and registered on 25 September 1996.        On 27 November 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 13 March 1997, after an extension of the time-limit fixed for that purpose.   The applicant's observations in reply were submitted on 9 July 1997, after the expiry of the time-limit.        On 28 May 1997 the Commission granted the applicant legal aid.   THE LAW        The applicant complains that the deportation order and removal directions issued to her constitute an unjustified interference with her private and family life within the meaning of the Article 8 (Art. 8) of the Convention.   Article 8 (Art. 8) of the Convention provides as follows:        "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 ... the economic well-being of the country, ... for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The Government note that the applicant did not renew her application for leave for judicial review after the refusal of 16 January 1996.   They consider that, to the extent that she claims that there was no evidential basis for the Secretary of State's view that she could lead an independent life in Nigeria, that claim was in essence a claim that the Secretary of State's view was irrational. Such a claim could and should have been pursued before the Court of Appeal, and to that extent the applicant has not exhausted domestic remedies.        The Government submit that the return of the applicant to Nigeria would not interfere with her family life because she does not, in fact, enjoy family life within the meaning of Article 8 (Art. 8): they point out that while there is a family relationship between the applicant and her mother and brothers, the central feature of family life is that people live together as a family.   In the present case, there is no evidence that the applicant is financially dependent on her mother (or vice versa), and they do not live together.   They refer to the case of X and Y v. the United Kingdom (No. 52691/71, Dec. 8.2.72, D.R. 39, p. 104).        In any event, even if the applicant does enjoy family life with her mother, the Government submit that its extent and quality are such that any interference is slight: the applicant could remain in contact by telephone and post with her mother, in much the same way as she is at the moment.   There could also be visits.   Accordingly, the Government see any limited interference as justified for the protection of the economic well-being of the country, in particular the integrity of its immigration system.   In this connection, they point out that although the members of the applicant's family are settled in the United Kingdom, with indefinite leave to remain, none of the time spent by the applicant in the country counted as qualifying time which would permit her, under the Immigration Rules, to settle, too.   As to the relationship between the applicant and her brothers, the Government point out that the amount of contact is not very different from the contact that many friends have with each other, and does not fall within the concept of family life.   Again, the Government consider that any interference is slight and justified under Article 8 para. 2 (Art. 8-2).        As to the exhaustion of domestic remedies, the applicant notes that she was unable to secure legal aid for a renewed application to the Court of Appeal, and she did not have the means to pay for one privately.        On the merits, the applicant contends that the existence of "family life" cannot depend on whether the members of the family live together, and points out that in the case of Gül (Eur. Court HR, Gül v. Switzerland judgment of 19 February 1996, Reports 1996-I), the young man concerned had an extensive family network in Turkey.   She underlines that she is financially substantially dependent on her UK based family, and it would be unrealistic to expect telephone contacts and visits to continue meaningfully if she were in Nigeria.   She also points out that her contact with her brothers must be looked at in the context of an extended family in the Nigerian context, which is necessarily different from the "classic" British family.        The Commission recalls that while the Convention does not guarantee the right, as such, to enter or remain in a particular country, the exclusion of a person from a country where his close relatives reside may raise an issue under Article 8 (Art. 8) (see, for example, No. 23981/94, Dec. 23.10.95, Sorabjee v. the United Kingdom and the further case-law referred to there).   However, the State's obligations to admit to its territory aliens who are relatives of persons resident there will vary according to the circumstances of the case.        In the present case, the applicant states that she is very close to her family members - her mother and brothers, who all have indefinite leave to remain in the United Kingdom.   She states that her mother lives close to her and that they see each other "at least once a week" and speak on the telephone every other day.   She sees her brothers also at least once a week.   Further, she has eight nieces and nephews in the United Kingdom.        It remains the case, however, that the applicant has not submitted any details of financial dependency, and indeed she lives separately from the other members.   The Commission considers that on the basis of her statements, it cannot be said that she is financially dependent on her family.   Moreover, she does not see any of them more often than once a week.        The Commission notes that the applicant is an adult and educated person.   She was aged 16 when she first went to the United Kingdom, and was aged 27 when she arrived in the country in 1988.   It is thus true that the applicant has stayed in the United Kingdom for a long period, altogether 14 years, but she has nevertheless spent the major part of her life - and all her youth to the age of 16 - in Nigeria.   The Commission considers that she can reasonably be expected to readapt there, notwithstanding that readaption may not be easy.        As regards the applicant's health problems, and assuming exhaustion of domestic remedies in this regard, the Commission notes the opinion of the United Kingdom Department of Health that adequate medical treatment is available for the applicant in Nigeria.   The applicant has not submitted any evidence which could indicate that this opinion is inaccurate.            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 control.   It concludes that the proposed removal of the applicant does not disclose a lack of respect for her private or family life as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.        It follows that the application 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.         M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber