European Court of Human Rights

 

 

                      AS TO THE ADMISSIBILITY OF

 

                      Application No. 26985/95

                      by Ama POKU and others

                      against the United Kingdom

 

     The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

 

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 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 31 March 1995 by

Ama POKU and others against the United Kingdom and registered on

6 April 1995 under file No. 26985/95;

 

     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

     7 July 1995 and the observations in reply submitted by the

     applicants on 5 October 1995;

 

     Having deliberated;

 

     Decides as follows:

 

 THE FACTS

 

     The applicants are named as being:

 

1. Jason Poku, born on 22 May 1995, is a British citizen and the son

of the second and fourth applicants;

2. Ama Serwah Poku, citizen of Ghana;

3. Jermaine Kessie Adjei, born in 1992, British citizen, child of the

second and fourth applicants;

4. Samuel Kessie Adjei, husband of the second applicant, a citizen of

Ghana, with the permanent legal residence in the United Kingdom

acquired in 1991 by virtue of his earlier marriage to a British

citizen;

5. Michael Fybrace, born in 1986, entitled to British citizenship by

registration as from 10 July 1996,, son of the second applicant by a

previous relationship with the sixth applicant;

6. Owen Fybrace, father of the fifth applicant (with parental

responsibility order), British citizen;

7. Sarah Adjei, British citizen, daughter of the fourth applicant by

previous marriage, born on 14 June 1990.

 

     The applicants are represented by Ms. Nuala Mole of the AIRE

Centre in London. The facts as submitted by the parties may be

summarised as follows.

 

     Ama Poku, the second applicant, was given leave to remain in the

United Kingdom on 16 March 1985. Her leave expired on 30 November 1985.

 

     Ama Poku gave birth to Michael, the fifth applicant, on 10 July

1986. He was the son of Owen Fybrace, the sixth applicant. Owen Fybrace

and Ama Poku had a steady relationship for approximately four and a

half years though did not cohabit.

 

     Ama Poku was apprehended on 12 October 1989 and served with a

notice of intention to deport. Her appeal against the decision to

deport was dismissed on 20 March 1990 and leave to appeal to the

Immigration Appeal Tribunal refused on 18 July 1990.

 

     Jermaine, the third applicant, was born on 16 January 1992. His

father was Samuel Adjei, the fourth applicant.

 

     On 8 February 1994, Ama Poku was arrested and served with a

deportation order.

 

     On 31 August 1994, Ama Poku married Samuel Adjei, the fourth

applicant.

 

     An application was made for judicial review, challenging the

deportation. The application for leave was rejected on 11 October 1994

and the renewed application refused on 1 December 1994.

 

     In January 1995, Ama Poku, who was pregnant, was threatened with

a spontaneous abortion and a shirodkar stitch was inserted in an

attempt to save the pregnancy. She was ordered as much bed rest as

possible. She has a very difficult gynaecological and obstetric

history. She has had six miscarriages, the most recent in 1991 which

had occurred despite the insertion of a stitch. She has never carried

a child to full term. In the case of Michael, her waters broke at 19

weeks and she was hospitalised, the baby eventually being born at 26

weeks, weighing 600 grams and requiring to be kept in an incubator for

3 months and to be given blood transfusions. In the case of Jermaine,

her waters again broke at 19 weeks and the child born prematurely at

29 weeks, weighing 1.29 kg and requiring to be kept in an incubator for

three weeks.

 

     The Court of Appeal refused the renewed application for judicial

review on 10 March 1995 finding that there was no error of law and that

the decision to deport was irrational.

 

     Ama Poku was diagnosed at that time as suffering from gestational

diabetes and she attended the ante natal clinic at St. Thomas's

Hospital for monitoring each week. She also received a scan once per

week.

 

     Directions for removal were issued and a date for deportation set

for 2 April 1995. The Government however gave an undertaking not to

deport Ama Poku for one week pending receipt of further medical reports

on her condition.

 

     On 22 May 1995, Jason was born prematurely (32 weeks). Due to Ama

Poku's worsening condition (hypertension and proteinuria), it had been

to induce labour and following further difficulties, an emergency

caesarian section was performed. Due to respiratory difficulties, Jason

was put on a ventilator for five days and received supplemental oxygen

for a further four days. His health is now good and he is expected to

have a completely healthy outcome. Ama Poku made a good recovery and

was discharged after eight days.

 

     Samuel Adjei was previously married on 15 July 1989. He was

divorced on 30 November 1993. The daughter of the marriage, Sarah,

continues to live with her mother. However, Samuel Adjei has maintained

regular and frequent contact with Sarah since separating from her

mother. In particular, she spends weekends with him if he is not

working and when his shift covers a weekend, he sees her during the

week. During holidays, she spends approximately half the time with him.

 

     After the breakdown of his relationship with Ama Poku, Owen

Fybrace continued to see his son, Michael, approximately once every one

or two weeks.This contact ceased in about mid 1991 but recommenced in

mid 1993, after which Owen Fybrace saw Michael once a week. On the

occasional week, he did not see Michael, he would telephone. Since

October 1995, Owen Fybrace has no seen Michael on a regular basis but

keeps in contact by telephone.

 

COMPLAINTS

 

     Articles 2 and 3 of the Convention

 

     The deportation is alleged, at the time of introduction of the

application, to have posed an immediate threat to the life of the

unborn child and to the health of Ama Poku, the mother. The applicants

refer to medical reports which indicated that she was not fit to travel

and gave details of the applicant's medical history in regard to

premature delivery. While the deportation was not carried out at that

time, the applicants allege that it imposed inhuman suffering contrary

to Article 3 due to the anguish which the threat of removal in these

circumstances inflicted on Ama Poku.

 

     Article 3 is also invoked in respect of the three children,

Michael, Jermaine and Jason, with regard to the situation of

constructive deportation which might arise if they are obliged to leave

the United Kingdom to accompany their mother.

 

     Article 8 of the Convention

 

     The deportation is alleged to interfere with the right to respect

for the family and private life of all the applicants. The removal of

the second applicant will disrupt the stable family unit in which they

live and if the children accompany her they will lose the benefits of

their entitlement of residence in the United Kingdom and lose contact

with their respective fathers. Samuel Adjei, who is the family's

principal breadwinner, cannot be expected to leave his job and his

earnings are insufficient to allow him to send financial support to

Ghana. Further, Ama Poku no longer has any relatives in Ghana and no

home to go to there.

 

     Article 13 of the Convention

 

     It is alleged that domestic law fails to provide sufficient

protection or remedy in respect of the threatened violations of

Articles 3 and 8.

 

PROCEEDINGS BEFORE THE COMMISSION

 

     The application was introduced on 31 March 1995 and registered

on 6 April 1995. On 6 April 1995, the Commission (First Chamber)

indicated to the United Kingdom pursuant to Rule 36 of the Commission's

Rules of Procedure that it was desirable in the interests of the

parties and the proper conduct of the proceedings before the Commission

not to deport the applicant, Ama Poku.

 

     The Government's written observations were submitted on

7 July 1995 after one extension of the time-limit fixed for that

purpose.  The applicants replied on 5 October 1995.

 

     The Commission prolonged the interim measures pursuant to Rule

36 of its Rules of Procedure on 25 May, 4 July, 13 September and

24 October 1995. On 24 October 1995, the Commission requested

information from the applicants concerning the state of health of Ama

Poku and her baby. Following the submission of information on

7 December 1995, the Commission decided the same day not to prolong its

indication under Rule 36 of its Rules of Procedure.

 

     By letter dated 2 April 1996, the applicants provided further

information.

 

THE LAW

 

1.   The applicants complain that the proposed expulsion of Ama Poku

posed an immediate risk to the life of herself and the unborn child

(subsequently born and named Jason) identified as the first applicant.

They invoke Article 2 (Art. 2) of the Convention which provides in its

first paragraph that "Everyone's right to life shall be protected by

law."

     The Government submit that since no deportation took place before

the first applicant was born this complaint is largely academic.

 

     The applicants submit that Ama Poku would have been deported to

Ghana while pregnant but for the request by the Commission to the

Government to suspend enforcement of the deportation pursuant to Rule

36 of the Commission's Rules of Procedure. They argue that a threat,

which is sufficiently real and immediate, of conduct prohibited by the

Convention may conflict with its provisions.

 

     The Commission notes that according to its case-law under Article

3 (Art. 3) the assessment of whether on expulsion an applicant faces

risk of treatment contrary to that provision must be made in relation

to the time and on the basis of information available when the

expulsion is to take place (see eg. Chahal family v. the United

Kingdom, No. 22414/93, Comm. Rep. 27.6.95 pending before the Court).

Since, as the Government points out, Ama Poku was not in fact deported

before the birth of the first applicant in the United Kingdom, and the

material before the Commission indicates that there is no immediate or

significant risk to health of either Ama Poku or her baby at the

present time, the Commission finds no basis on which the pending

deportation measure can be found to disclose a violation of Article 2

(Art. 2) of the Convention. The Commission does not accept that on the

facts of this case the threat of the deportation by itself in the

circumstances pertaining at the time of the introduction of the

application disclose any appearance of a violation of Article 2

(Art. 2). In that context, it would note that there is no evidence of

any immediate life-threatening  effect on the health suffered by Ama

Poku or the baby as a result of the deportation proceedings: the

complications surrounding the birth were anticipated by her

previousmedical history and the applicants have not suggested that the

course of the birth was materially affected in any way. The element of

psychological suffering falls to be examined separately under Article

3 (Art. 3) of the Convention below.

 

It follows that this complaint must be rejected as manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

 

2.The applicants complain that the threat of the deportation during her

pregnancy inflicted on Ama Poku considerable anguish. The continued

threat of removal or separation from their mother or respective fathers

hanging over the heads of child applicants is also alleged to

constitute inhuman and degrading treatment. The applicants invoke

Article 3 (Art. 3) of the Convention which provides:

 

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

 

The Government submit that it would be the choice of the applicants if

the child applicants remain in the United Kingdom rather than accompany

Ama Poku, their mother. The facts of the case, in their view, fail to

reveal any kind of treatment contrary to Article 3 (Art. 3), in

particular, since no physical ill-treatment of Ama Poku by the United

Kingdom is alleged and the circumstances of the case are far removed

from any kind of treatment that can properly be called inhuman or

degrading.

 

The applicants underline the suffering which Ama Poku was subject to

pending the threat of deportation, describing how she was "hysterical

with fear" of the consequences to her unborn child. As regards the

effect of the proposed deportation on the child applicants at the

present time, the applicants refer to the nature of the measure as

analogous to constructive exile, which punishment is inhuman and

degrading when imposed an innocent child. The prospect of separation

from a parent for a child is also of such a nature and degree as to

raise issues under Article 3 (Art. 3) of the Convention.

 

     The case-law of the Convention organs establishes that ill-

treatment must attain a minimum level of severity if it is to fall

within the scope of Article 3 (Art. 3) of the Convention. Further, the

Court has held that the suffering occasioned must attain a certain

level before treatment can be classified as a inhuman. The assessment

of that minimum is relative and depends on all the circumstances of the

case, such as the duration of the treatment and its physical or mental

effects (see eg. Eur. Court H.R., Ireland v. the United Kingdom,

judgment of 18 January 1978, Series A no. 25, p. 65, para. 162).

 

     In respect of the psychological impact on Ama Poku of the

proposed deportation during her pregnancy, the Commission sees no

reason to doubt the claim that this inflicted on her considerable

anguish. In the absence however of any substantiated effect on her

physical or psychological health, the Commission is not satisfied that

the uncertainty and anxiety engendered by the situation was such as to

reach the minimum level of severity required by Article 3 (Art. 3) of

the Convention.

 

     In respect of the position of the applicant children, the

Commission notes that if Ama Poku is deported, three (Jermaine, Jason

and Michael) will potentially have the choice of accompanying her to

Ghana or remaining without her in the United Kingdom. Having regard to

the different paternal relationships in existence, this may mean that

these children will be either separated from their mother or in the

case of Michael lose the possibility of contact with his natural father

applicant. In the case of Sarah, there is the possibility that her

father will choose to accompany Ama Poku, his wife, to Ghana and she

will cease to enjoy regular and frequent contact with him.

 

     The Commission does not consider that this situation discloses

treatment falling to be classified as inhuman or degrading within the

meaning of Article 3 (Art. 3) of the Convention. Nor does the

Commission regard the possibility that the children might leave the

United Kingdom, where they legally have the right to reside, as

constituting punishment for the purposes of that provision. The

Commission would observe that the implementation of lawful immigration

measures against one member of a family will inevitably entail effects

on the existing relationships with other members of that family. It

considers that it would only in exceptional circumstances, for example,

where there is a substantiated level of intense physical and mental

suffering as a direct result of the implementation of the immigration

measure or where there was a particular aggravating factor (eg.

discrimination as in the East African Asians case, Comm. Rep. 14.12.73

D.R. 78-A p. 5) that an issue would be likely to arise under Article

3 (Art. 3). Where however the essence of the complaint is the impact

of the measure on family relationships, the Commission considers that

the matter is more appropriately to be examined under Article 8

(Art. 8) of the Convention.

 

     The Commission concludes therefore that the facts of the present

case fail to disclose any appearance of a violation of Article 3

(Art. 3) of the Convention and must be rejected as manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

 

3.   The applicants complain that the proposed deportation of Ama Poku

interferes with their right to their family and private life.

 

      Article 8 (Art. 8) of the Convention provides as relevant:

 

     "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 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 Government refer to the Commission case-law to the effect

that it is compatible with Article 8 (Art. 8) to expect children of

unlawful residents to follow their parents abroad. They point out that

the children are young and of an adaptable age, emphasise Ama Poku's

"very bad immigration history" and submit that the extended family

relationships between Michael and Owen Fybrace and Samuel and Sarah

Adjei are not of such a nature or degree as to outweigh the legitimate

interest in immigration controls.

 

     The applicants emphasise that they are all British citizens or

have a permanent right to reside in the United Kingdom, save Ama Poku.

Previous cases relied on by the Government involved the situation where

both parents had no right to remain and were being deported. Further

it is not reasonable to expect the applicants to continue their family

life in Ghana since the older children are well-settled into the

educational system; Michael will lose regular contact with his father;

Samuel Adjei will lose his legal residence rights in the United Kingdom

and also lose contact with Sarah, his daughter by a previous marriage.

 

     The Commission recalls according to its established case-law that

while 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 close

relatives reside or have the right to reside (see eg. 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. 9285/81, Dec. 8.7.82, D.R. 29, p. 205).

 

     However, the Commission notes that the State's obligation to

admit to its territory aliens who are relatives of persons resident

there will vary according to the circumstances of the case.  The Court

has held that 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 H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985,

Series A no. 94, p. 94, para. 68). The Commission considers that this

applies to situations where members of a family, other than spouses,

are non-nationals. 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 insurmountable

obstacles in the way of the family living in the country of origin of

one or more of them, whether there are factors of immigration control

(eg. history of breaches of immigration law) or considerations of

public order (eg. serious or persistent offences) weighing in favour

of exclusion (see eg. Nos. 9285/81, Dec. 6.7.82, D.R. 29 p. 205 and

11970/86, Dec. 13.7.87 unpublished).

 

     The Commission recalls that in this case all the applicants, save

Ama Poku, are either British citizens or have a permanent right to

remain in the United Kingdom. The Commission notes however that in

previous cases the factor of the citizenship has not been considered

of particular significance (eg. No. 11970/86, dec. 13.7.87,

unpublished, where the Commission found it compatible with Article 8

(Art. 8) to expect children of unlawful overstayers to follow their

parents even if they had acquired theoretical rights of abode in the

deporting country; and Nos. 23938/94 Sorabjee v. the United Kingdom,

dec. 23.10.95 and 24865/94 Jaramillo v. the United Kingdom dec.

23.10.95, where the Commission found no material distinction as to

whether the children had acquired citizenship by ius soli or ius

sanguinis).

 

     As regards her husband, Samuel Adjei and their two children Jason

and Jermaine, the Commission notes that there are no obstacles

effectively preventing them from accompanying Ama Poku and establishing

their family life in Ghana. The Commission has had regard to the

adaptable ages of the children, aged four and one respectively. As

regards however Samuel Adjei's relationship with his daughter Sarah by

another marriage, the Commission observes that if he decides to

accompany Ama Poku, his wife, this will interrupt the frequent and

regular contact which he enjoys with Sarah who lives with her mother

in the United Kingdom. The Commission recalls however that Samuel Adjei

and Ama Poku married in August 1994 when she had already been subject

to immigration proceedings and a deportation order had been served. He

must accordingly be taken to have been aware of her precarious

immigration status and the probable consequential effects on his other

family relationships by the enforcement of the deportation order. While

his daughter Sarah may also claim that her family life is affected and

cannot be said to be in the same position as her father, the Commission

considers that her situation also flows from the choice exercised by

her father rather from any direct interference by the State with her

family relationships. In this respect, her situation can be

distinguished from that of the child in the Berrehab case (Eur. Court

H.R. Berrehab judgment of 21 June 1988, Series A no. 138) where the

father himself was the subject of the expulsion measure by the State

which was found to disclose a violation of their right to respect for

for family life.

 

     As regards Ama Poku's son Michael and the effect on his

relationship with his father Owen Fybrace, the Commission notes that

contact has been somewhat irregular and now appears to have diminished

to contact by phone only. The resulting effect on their existing

"family life" if he left would accordingly appear to be minimal. While

Michael is older than Jason and Jermaine and has been integrated into

the United Kingdom school system, the Commission finds no indication

of any factor which would effectively prevent him from adapting to life

with his family elsewhere.

 

     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

controls. It concludes that the removal does not disclose a lack of

respect for the applicants' rights to family or private life as

guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.

 

     It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

 

4.   Finally, the applicants invoke Article 13 (Art. 13) of the

Convention, which provides that :

 

     "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."

 

     The Commission recalls however that Article 13 (Art. 13) does not

require a remedy under domestic law in respect of any alleged violation

of the Convention.  It only applies if the individual can be said to

have an "arguable claim" of a violation of the Convention (Eur. Court

H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.23,

para. 52).

 

     The Commission finds that the applicants cannot be said, in light

of its findings above to have an "arguable claim" of a violation of

their Convention rights.

 

     It follows that this complaint must be dismissed 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.

 

Secretary to the First Chamber        President of the First Chamber

 

     (M.F. BUQUICCHIO)                        (C.L ROZAKIS)