CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 juillet 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 }                      Application No. 27559/95                     by T.O. A.                     against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 8 July 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. MARXER                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 17 March 1995 by T.O. A. against the United Kingdom and registered on 9 June 1995 under file No. 27599/95;        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      14 January 1997 and the observations in reply submitted by the      applicant on 9 April 1997;   -     the agreement between the parties;        Having deliberated;        Decides as follows:   THE FACTS        The applicant was born in 1985. When he applied to the Commission he was a Ghanaian citizen with pending registration as a British citizen. On 3 October 1996 he was registered as a British citizen. He resides in London. Before the Commission he is represented by Bindman and Partners, solicitors practising in London.        The facts of the case, as they have been submitted by the parties, may be summarised as follows.        The applicant's mother B., a Ghanaian citizen, entered the United Kingdom in October 1982 as a visitor with leave to remain for one month with a prohibition against taking employment. She remained after her leave had expired and entered employment as a machinist. B.'s husband, the applicant's father, also a Ghanaian citizen, was killed in a road accident in Ghana shortly after the applicant's birth.        B. has seven children, one who was born and lives in Ghana with her deceased husband's elderly mother, and six others, including the applicant, who were all born in the United Kingdom and who live with and are supported by B. in London. The applicant is her second child. In 1991, the father of her third and fourth children was deported back to Ghana. He has never provided any support for his children. B. has had no contact with the father of her fifth child, a Canadian citizen. Her sixth and seventh children were born in October 1995 and June 1996 after the present application to the Commission. B. has a brother who lives in London who provides her with some financial support, and a sister who lives in the USA. Both of B.'s parents are dead.        On 6 May 1990, more than seven years after having entered the United Kingdom, B., who had come to the attention of the immigration authorities, was interviewed under caution and served a notice of intention to deport her.        An appeal against this decision before the Adjudicator was dismissed on 10 September 1991. The Adjudicator found that she had remained in the United Kingdom without authority since 1982. As regarded her personal circumstances, he considered that she was of an age when she could easily readjust in Ghana; that she would be able to return to the town of Kumasi where she had lived previously and where she had family connections, including the father of her third and fourth children and her mother-in-law; and that she had an occupation as seamstress. As regarded the children, he noted that they were fit, save one child who had a minor problem of a squint currently undergoing treatment. He found the younger ones would have no difficulty in adjusting to life in Ghana and that in Kumasi, a town where most people spoke English, there would be no language problem. He concluded, having balanced the personal circumstances against the need to maintain effective immigration control, that the applicant had not established that an exception should be made. No application for leave to appeal was submitted to the Immigration Appeal Tribunal. On 5 March 1992, a deportation order was signed against her.        On 16 June 1992, representations were submitted to the Secretary of State for the Home Office through B.'s Member of Parliament raising, inter alia, the fact her children in the United Kingdom had never been served with a deportation order. In a letter dated 14 August 1994 the Secretary of State replied:        "... we prefer not to serve the dependent children of deportees      with deportation notices in order to avoid children leaving under      the stigma of having themselves deported... we expect (B.) to      take the children with her rather than to subject them to      deportation procedures which could otherwise be avoided."        Removal directions were set on a number of occasions but were deferred for a number of reasons: B.'s pregnancy and birth of her sixth child, medical treatment being undergone by another of her children, B. moving house with her children in breach of a restriction order, and for judicial review proceedings to be heard in 1995.        In response to further removal directions set for B. and four children on 15 August 1994, B.'s solicitors wrote again to the Secretary of State submitting that the children could not be deported since they were entitled to remain and that their mother, their sole carer, should not be removed. By a letter dated 5 September 1994 the Secretary of State replied:        "The rights of the children were fully investigated. However,      they are not British Citizens and do not have the right of abode      here and they will be expected to accompany their mother, if      necessary at public expense."        On 8 February 1995, B. made an application in the High Court for leave to apply for judicial review challenging the decisions made by the Secretary of State on 15 August 1994 and on 5 September 1994. It was alleged that there had been a failure by the Secretary of State to take account of, inter alia, the fact that the applicant would be eligible to apply for British citizenship on 15 February 1995 when deciding to uphold the deportation order against B. The application was refused and was renewed in the Court of Appeal on 15 March 1995. The application was again refused.        On 3 October 1996, the applicant was registered as a British citizen pursuant to section 1 (4) of the British Nationality Act 1981.        On 14 January 1997 the Home Office took a decision to make deportation orders against the four oldest siblings of the applicant residing in the UK, all of whom are minors (respectively aged 9, 7, 4 and 1.5 years). Notice of appeal has been lodged in all four cases.     COMPLAINTS        The applicant claims that the decision to remove his mother from the United Kingdom constitutes a violation of his rights under Articles 3, 8, Article 2 of Protocol No. 1 and Article 13 of the Convention.   1.    The applicant complains that the proposed removal of his mother to Ghana violates Article 3 of the Convention. The applicant claims that if he was to follow his mother to Ghana he would be required to adapt to an entirely new environment and that in light of his age and, in effect his exile from the country of his birth, to be so forced to adapt would constitute ill-treatment and punishment. If he remains in the United Kingdom, the enforced separation from his mother, he submits, would also constitute a violation of Article 3.   2.    The applicant complains under Article 8 of the Convention that the said removal will interfere with his right to a family life and a private life. He claims that the proposed deportation of his mother constitutes the constructive deportation of himself, and asserts that he has British citizenship and has the right of abode in the United Kingdom, where he was born, bred and is being educated. He will lose as a result the benefits of the health, education and welfare services of his own country, his friends and the culture he has grown up in. The applicant has never been to Ghana and has no knowledge of any other language than English. While the applicant could theoretically remain, the separation from his mother, his only surviving parent, would have damaging psychological effects. It is likely that he would have to be taken into local authority care and it is presently unforeseeable, in light of his mother's immigration history, that she would be granted entry clearance to travel and visit him. The applicant submits that the measure by the Secretary of State to uphold his mother's deportation order was accordingly disproportionate and harsh.   3.    The applicant also complains under Article 2 of Protocol No. 1 that, should he be removed to Ghana, he will be deprived of education in British schools and will be unable to afford education at a similar standard. He complains that he has been educated in English all his life and that his inability to speak any Ghanaian languages will disadvantage him further. If, when he is of an age to return, he does so it is doubtful that he will qualify to attend university.   4.    Further, the applicant complains under Article 13 of the Convention that there is no effective remedy in respect of the removal.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 17 March 1995 and registered on 9 June 1995.        On 16 October 1996, the Commission decided to communicate the application to the respondent Government.        The observations of the respondent Government were submitted on 14 January 1997. The applicant replied on 9 April 1997, after an extension of time-limit.        The Commission decided on 21 January 1997 to grant the applicant legal aid.        On 4 March 1998 the Commission decided to hold a hearing on the admissibility and merits of the case.        Following an exchange of correspondence between the parties, an agreement was reached whereby the deportation order against the applicant's mother was removed, the mother was granted indefinite leave to remain, and the deportation proceedings against the applicant's siblings were discontinued. The Government agreed to pay the applicant's reasonable costs, and the applicant agreed to settlement of the case.   REASONS FOR THE DECISION        In view of the agreement between the parties, the Commission notes that the matter has been resolved within the meaning of Article 30 para. 1 (b) of the Convention.        The Commission finds no special circumstances regarding respect for human rights as defined in the Convention which require examination of the application to be continued, in accordance with Article 30 para. 1 in fine of the Convention.        For these reasons, the Commission, unanimously,        DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.        M.F. BUQUICCHIO                        M.P. PELLONPÄÄ         Secretary                             President    to the First Chamber                  of the First Chamber