CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1998

.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. 27299/95                       by Sukhdev Singh JOHAL, Gurjyot SINGH and                       Parveenjyot SINGH                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 4 March 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. CONFORTI                  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 1 May 1995 by Sukhdev Singh JOHAL, Gurjyot SINGH and Parveenjyot SINGH against the United Kingdom and registered on 11 May 1995 under file No. 27299/95;        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      20 November 1996 and the observations in reply submitted by the      applicants on 4 and 8 March 1997;        Having deliberated;        Decides as follows:   THE FACTS        The first applicant is a British citizen, born in 1967 and resident in Birmingham. The second and third applicants are the children of the first applicant and K, and were born in the United Kingdom in 1993 and 1994 respectively. They are British citizens.        The applicants are represented before the Commission by A.D. Schiller, a solicitor practising in Birmingham.   a.    The particular circumstances of the case        K., an Indian national, entered the United Kingdom on 8 June 1991, having married a United Kingdom citizen, Y., on 1 March 1991 in India under an arranged marriage and having obtained the necessary entry clearance. She was given limited leave to remain until 8 June 1992 as a dependant spouse. On or about 5 August 1991, K. was forced to leave the matrimonial home due to violence inflicted on her by Y.. Y. informed the Secretary of State of K.'s departure. K. commenced proceedings for an injunction to restrain Y. from threatening or using violence against her. On 16 August 1991, Y. gave a Court undertaking to this effect. Divorce proceedings were commenced. A decree absolute was issued on 5 October 1992.        On 19 June 1992, after the expiry of the period of leave,   K. made a new application for leave to remain in the United Kingdom.   On 16 July 1992, she was interviewed by an Immigration Officer. On 28 October 1992, the Secretary of State notified her by letter that he had decided to make a Deportation Order against her under section 3(5)(a) of the Immigration Act 1971, although K. claims that she never received it, having moved address. A letter to the same effect was sent to her solicitors who acknowledged receipt of it on 3 November 1992 and informed the Secretary of State of her new address and requested appeal forms to be sent.        On 12 September 1992, K. met and started a relationship with the first applicant and, in the last week of September, they state that they started to co-habit. On 11 December 1992, they married. On 17 June 1993 their first child (the second applicant) was born   and 21 October 1994, their second child (the third applicant) was born. The Government state that they do not accept that the first applicant and K. began to cohabit before the notice of intention to deport was signed.        On 22 December 1992, the applicant's solicitors wrote to the Secretary of State on K.'s behalf for settlement on the basis of her marriage on 11 December 1992 to the first applicant. Whilst enquiries were being made   as to the circumstances of the marriage, by letter dated 7 January 1994, the first applicant and K. informed the Secretary of State of the date of their marriage and the date of the birth of the second applicant.        On 26 August 1994, the Secretary of State signed a Deportation Order under section 5 of the Immigration Act 1988 which included an indefinite prohibition on K. entering the United Kingdom. By letter dated 16 September 1994, the Secretary of State claimed that, since the marriage between the first applicant and K. had taken place after the commencement of enforcement proceedings against K., the decision to deport her could not be reversed. The Secretary of State considered that there were no factors, including the birth of both the second and third applicants, that provided grounds for rescinding the Deportation Order, again because the actual marriage did not pre-date the enforcement action. By a letter dated 23 November 1994, the Secretary of State, referring to the Immigration Department guidance concerning marriage stated:        "I should explain that this guidance refers to genuine and      subsisting marriages and common-law relationships akin to      marriage that pre-date enforcement action. As you are      aware, [K.] was served on 28 October 1992 with a notice of      intention to deport her. Her marriage does not predate      enforcement action and cannot avail her under these      circumstances. You have indicated that [K.] has a common-      law relationship with her second husband which pre-dates      enforcement action, but you have provided no evidence to      substantiate this claim".        The letter further stated that there was no evidence that the marriage was genuine and subsisting, and that Immigration Officers who visited her home in April and September 1994 did not find either her husband or evidence of his presence.        By letter dated 13 February 1995, the Secretary of State made clear his view that the age of the children, 18 months and 3 months, was clearly young enough for them to be able to adapt to life abroad and that any economic or social hardship that they might suffer in India was not sufficient to outweigh K.'s abuse of immigration control between 8 and 19 June 1992.        K. commenced judicial review proceedings claiming that the Secretary of State had failed to follow his own policy guidelines (DP2/93).   On 16 March 1995, leave to review the decision of the Secretary of State to deport her was refused on the grounds that the policy guidelines relied on did not apply in her case. On 25 March 1995, officers of the Immigration Service acting on behalf of the Secretary of State detained K. while details were taken to apply for an Indian passport on her behalf so that she could be deported to India.   b.    Relevant domestic law and practice        By section 3 (1) of the Immigration Act 1971 (the 1971 Act) a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so. Leave either to enter or to remain when already in the United Kingdom, may be given either for a limited period or for an indefinite period. Pursuant to paragraph 3 of the Immigration (Variation of Leave) Order 1976, where a person has leave to enter or remain in the United Kingdom for a limited period and applies to the Secretary of State before the expiry of that period for such limited leave to be varied, the duration of his leave shall, by virtue of this Order, be extended until the expiration of 28 days after the date of the decision on the application.        By section 5(1) of the 1971 Act where a person is under section 3 (5) liable to deportation, the Secretary of State may make a Deportation Order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom.        By section 24(1) of the Act, a person who is not a British citizen shall be guilty of an offence punishable on summary conviction with a fine or with imprisonment or with both if having only a limited leave to enter or remain in the United Kingdom, he knowingly remains beyond the time limited by the leave. However the Secretary of State will consider applications for leave to remain in such circumstances in the exercise of his discretion. Where the Secretary of State decides to sign a Deportation Order before the application was received, the Secretary of State will reconsider that decision in the light of the circumstances advanced in support of the application for leave to remain. In making the decision in such circumstances, Home Office officials are guided by an instruction known as "DP2/93" which provides guidance on cases involving marriage and children and expressly takes account of the Convention in general and Article 8 in particular.        The relevant provision of the instruction provides that, as a general rule, deportation under section 3(5)(a) or section 3(5)(b) (in non-criminal cases), or illegal entry action should not be initiated or pursued where the subject has a genuine and subsisting marriage to a person settled in the United Kingdom if (a) the marriage pre-dates enforcement action; and (b) the marriage has lasted 2 years or more or, in the case of a common-law relationship the couple have cohabited for 2 years or more. However, it does not automatically follow that deportation/removal is the right course where this test is not met. Full account should be taken of any evidence that a strong relationship has existed for more than 2 years (this will include any reasons why the couple did not marry earlier, e.g. waiting for a divorce to be finalised, saving to buy their own home); or the settled spouse has lived here from an early age or it is otherwise unreasonable to expect him/her to accompany on removal; or (c) one or more children of the marriage has the right of abode in the United Kingdom, most commonly as a result of having been born in the United Kingdom to a parent settled here.        In considering whether it is reasonable for a spouse to accompany on removal under the paragraph 2(c) above, whilst the onus is on the United Kingdom settled spouse to make out a case for why it is unreasonable for him/her to join the family outside the United Kingdom, in general terms cases should be considered if the United Kingdom settled spouse (a) has strong family ties in the United Kingdom; or (b) has lengthy residence in the United Kingdom; or (c) suffers from ill health such that his/her quality of life would be significantly impaired if he/she were to accompany his/her spouse on removal.        With regard to divorced parents, the relevant legislation provides that where one parent is settled in the United Kingdom and the removal of the other would result in deprivation of frequent and regular access currently enjoyed by either parent, section 3(5)(a), 3(5)(b) (in non criminal cases) or illegal entry action should be abandoned. Reliance cannot be placed on the argument that the United Kingdom settled parent can travel abroad to continue access.        With regard to common law relationships where there is conclusive evidence that a genuine and subsisting common law relationship akin to marriage exists, it should be considered under this instruction as if it were a marriage. The onus rests firmly on the individual who seeks to benefit to provide conclusive evidence of the nature of the relationship.        It is the Secretary of State's normal policy to grant leave to remain and to rescind a decision to make a Deportation Order if it is shown subsequently that a case satisfied the conditions laid down in that instruction.     COMPLAINTS   1.    The applicants invoke Article 3 of the Convention. They complain that if they were to follow K. to India they would be destitute since the first applicant would not be able to find a job, having no links with the country and he would therefore not be able to support the family as he now does. As a result of that poverty, the second and third applicants would be deprived of health care, educational and social services. Further, they claim that they would be marginalised due to K.'s status as a woman who had left an arranged marriage. Even if the second and third applicants stay in the United Kingdom, they would still suffer inhuman and degrading treatment since they would be separated abruptly and permanently from their mother at a very young age with serious psychological consequences.   2.    The applicants complain that the deportation of K. would constitute an interference in their right to respect for their family and private life contrary to Article 8 of the Convention. They also claim under Article 8 that the Home Office guidelines DP2/93 provide that K. would be allowed to remain in the United Kingdom if she divorced the first applicant and that there is no reason for the apparently preferential treatment given to divorced parents. The second and third applicants claim that whether they follow their mother to India or remain in the United Kingdom with the first applicant, their right to respect for family life will have been violated in that they will have been separated from one of their parents at a very young age.   3.    The second and third applicants further complain that if they follow their mother to India they would be deprived of their right to education as laid down in Article 2 of Protocol No. 1 to the Convention due to their lack of financial resources.   4.    Finally, the applicants complain that they are subject to discrimination contrary to Article 14 as regards their enjoyment of rights laid down in the Convention due to their having a foreign mother or, in the case of the first applicant, a foreign wife. Further, they are treated differently from families where the parents are divorced, where policy guidelines DP2/93 apply.   5.    The applicants further complain of a violation of Article 13 in that judicial review proceedings can only consider whether the Secretary of State had taken due regard of his policy guidance, and the court has no jurisdiction to determine the case on its merits.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 1 May 1995 and registered on 11 May 1995.        On 26 June 1996 the Commission decided to communicate the applicants' complaints concerning Articles 8, 13 and 14 to the respondent Government.        The Government's written observations were submitted on 20 November 1996, after an extension of the time-limit fixed for that purpose. The applicants replied on 4 and 8 March 1997, also after an extension of the time-limit.         On 3 December 1996, the Commission granted the applicants legal aid.     THE LAW        The applicants invokes Articles 3, 8, 13 and 14 (Art. 3, 8, 13, 14) in respect of the proposed expulsion of K., who is respectively their wife and mother. They also invoke Article 2 of Protocol No. 1 (P1-2) of the Convention in respect of the second and third applicants.        Article 3 (Art. 3) of the Convention provides:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."        Article 8 (Art. 8) provides as relevant:        "1. Everyone has the right to respect for his private and      family life, ...        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".        Article 13 (Art. 13) of the Convention provides :        "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".        Article 14 (Art. 14) of the Convention which provides:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any      ground such as sex, race, colour, language, religion,      political or other opinion, national or social origin,      association with a national minority, property, birth or      other status."        Article 2 of Protocol No. 1 (P1-2) provides as relevant:        "No person shall be denied the right to education."        The Government submit that, had K. applied for an extension of leave before 8 June 1992, the overwhelming likelihood is that leave would not have been granted because at that time K. was no longer cohabiting with her husband and had no claim within the immigration rules to remain. The Government further submit that the deportation of K. would not interfere with the applicants' right to respect for their family life. Article 8 (Art. 8) did not confer on married couples a right of choice of the place of their residence. Therefore, the first applicant could be expected to follow his wife to India. Moreover, the first applicant married K. at a time when, it can fairly be presumed, he and K. knew of her precarious immigration position. She had been arrested and questioned in July 1992, two months before they met, because she was remaining in the country without leave and the Home Office had written both to her and her solicitors informing them that the Secretary of State had decided to sign a Deportation Order against K. and she had actually sought the forms upon which to appeal.        The Government also submit that the second and third applicants are very young children, aged 3 and 2 respectively and that they can adapt to life in India very easily. There is, according to the Government, no insurmountable obstacle which will prevent any of the applicants from accompanying K. to India when she is returned and that the family unit can be maintained there. If the first applicant were to remain in the United Kingdom this would be a result flowing from his choice and not from interference by the United Kingdom with the respect due to his private or family life.        The Government submit that, even assuming that there was an interference with the applicants' right to respect for their family life, such interference was justified under paragraph 2 of Article 8 (Art. 8-2). K.'s deportation was in accordance with law and pursued proportionately a legitimate aim namely, the proper control of immigration. The first applicant had remained in the United Kingdom for more than four years without any lawful justification when in fact she has been aware since the expiry of her original leave in June 1992 that she has had no entitlement to remain. In assessing proportionality, the authorities took into account the seriousness of the breach of the immigration rules, the fact that K. and the first applicant married and had children at a time when they knew K was an overstayer and in all probability knew of the decision to deport her and the fact that the second and third applicants are very young and can readily adapt to life in India. Moreover, the interference was necessary in a democratic society in the interest of the economic well-being of the country and for the prevention of disorder or crime. The interference thus did not exceed the margin of appreciation afforded to the Contracting States.        Having regard to the above, the Government submit that the expulsion cannot disclose any violation of the right to education guaranteed under the Article 2 of Protocol No. 1 (P1-2) to the Convention. As regards allegations of discriminatory treatment under Article 14 (Art. 14), the Government submit that the position of divorced people with children and married people with children is not analogous. Even assuming that they would be considered as comparable, the difference in treatment is justified: a divorced parent cannot be expected to follow his/her ex-spouse to the country of deportation for the purposes of maintaining a link with his/her children, while a parent still married to the other parent can be expected to do so.        Finally, the Government submit that there is no arguable claim that the applicants' rights have been violated and therefore there can be no complaint under Article 13 (Art. 13) as regards an alleged lack of an effective remedy.        The applicants submit that the measure of expulsion discloses a violation of their right to respect for family and private life under Article 8 (Art. 8) of the Convention. Had K. applied for an extension of leave before 8 June 1992, the Secretary of State might well have exercised his discretion to allow K. to remain given the compassionate circumstances following the breakdown of her marriage and the social ostracism that she would face in India having left her arranged marriage. The applicants also submit that a relationship between K. and the first applicant began in September 1992 and conception of the first child (the second applicant) took place before the refusal of K.'s application for an extension of her leave on 28 October 1992. Thus, at the date the relationship started, no decision had been taken as to the future immigration status of K. and K. did not know and could not be expected to know the decision that the Secretary of State was likely to reach.        The applicants further submit that the fact that the first applicant married K. on 11 December 1992 should be looked at in the light of the fact that at the time K. was over three months pregnant with the first applicant's child and in that respect it cannot be said to be a marriage of convenience for immigration purposes. Moreover, contrary to the Government's submissions, the applicants maintain that it cannot be realistically suggested that the family unit can be maintained in India, given that the first applicant has lived all his life in the United Kingdom and has a job by which he is able to support his family whereas he has no employment prospects in India. The first applicant refers in particular to the economic and social difficulties that would be suffered by the second and third applicants but also submits that the family as a whole would sink into poverty and destitution. The applicants also submit that, in view of the fact that K entered the United Kingdom lawfully and her breach of immigration rules is minor (she overstayed her leave by ten days before applying for renewed leave), the response of the United Kingdom authorities to expel K is disproportionate. It would also result in them suffering inhuman and degrading treatment contrary to Article 3 (Art. 3).        The second and third applicants complain that in following their mother to India they would be deprived of the right to education guaranteed under Article 2 of Protocol No. 1 (P1-2).        The applicants submit that the first applicant in particular is discriminated against by the Home Office guidelines DP2/93 which in effect provide that K. would be allowed to stay in the United Kingdom if she divorced the first applicant thus bestowing preferential treatment on divorced couples as opposed to those who make a commitment to married life which is the usual forum for enjoying family life. They are also discriminated against on the basis that K. is a foreign wife and mother.   The applicants further complain that they have no effective remedy before a national authority in violation of Article 13 (Art. 13) of the Convention.        The Commission considers, in light of the parties' submissions, that the case raises serious issues of fact and law under the Convention the determination of which should depend on an examination of the merits of the application as a whole. The Commission concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE without prejudging the      merits.        M.F. BUQUICCHIO                             M.P. PELLONPÄÄ         Secretary                                  President    to the First Chamber                       of the First Chamber