CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1996

.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. 25073/94                       by Hammond Kwaku LARBIE                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 28 February 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                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  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 17 June 1994 by Hammond Kwaku LARBIE against the United Kingdom and registered on 2 September 1994 under file No. 25073/94;        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 Ghanaian citizen born in 1954.   He entered the United Kingdom in 1984, and now runs a freight shipping business.   He has had indefinite leave to remain in the United Kingdom since 11 December 1990.   He is represented before the Commission by Ms. H. Amoo-Gottfried, a solicitor, and by Ms. J. Asher, a barrister. The facts of the application, as submitted by the applicant's representative, may be summarised as follows.        The applicant met his wife, F, on 6 June 1991.   A child was born on 20 November 1992, and the couple married on 16 April 1993.        F had entered the United Kingdom in 1985, with leave to enter for six months as a visitor.   She did not seek to extend her leave until 1988, when she applied for leave to remain on the basis of her marriage to a British citizen, a Mr. Taylor.   The Immigration Service established that F and Mr. Taylor did not live together, and F's application was refused on 6 September 1990.   She was warned of her liability to deportation.   In January 1991, F was unable to say where her husband was, and could not give any addresses where they had previously lived.   The Immigration Service suspected that the marriage had always been a sham, and F was served with a notice of intention to deport her for failing to comply with previous instructions to leave the United Kingdom.   F appealed, and an application for asylum was made.   The asylum application was refused on 10 June 1992 on the ground that the Provisional National Defence Council - with which F's former boyfriend had been involved - had become supportive of the government, and because F herself was not a member of any organisation or in any danger in Ghana.   The appeal against the notice of intention to deport was dismissed on 20 April 1993.   In his decision of 20 April 1993, the adjudicator said that the "appeal ... has seemed to amount to an abuse of these procedures".        On 21 April 1993 F applied for leave to remain in the United Kingdom as the wife of the applicant, and as a result of this application, a deportation order made on 29 July 1993 pursuant to the decision of 20 April was not served.        On 27 October 1993 F's (and the applicant's) MP wrote to the Secretary of State about the case.   Amongst other things, he wrote "I understand Mr Larbie runs a successful shipping company employing seven staff".        On 26 November 1993 the Secretary of State wrote to the MP. He wrote:        " [F's] case was fully reviewed as a consequence of her marriage      on 16 April to a person settled here and the presence in the      United Kingdom of a child of the relationship.   However, in      reviewing the case, account was taken of the fact that Mrs Larbie      has on her own admission lived in the United Kingdom for eight      years of which only six months has been with extant leave.      Furthermore, her latest marriage only took place after she had      been served with a notice of intention to deport her.   Her      husband is a Ghanian, who has lived in the United Kingdom for      five years and having lived the majority of his life in Ghana,      he can reasonably be expected to readapt to living there, as can      their young child.        I have had Mrs Larbie's case considered fully and carefully in      the light of all these circumstances, including the fact that Mrs      Larbie is now expecting a second child, but I am not prepared to      revoke the deportation order against her.   Her removal from the      United Kingdom will be enforced as soon as the necessary      arrangements are made.   If her husband wishes to do so, he may      accompany her on her deportation, if necessary at public expense.      Her child's fare will also be met at public expense if      necessary."        An official of the Immigration Service wrote to the F's solicitors on 7 April 1994.   He repeated the substance of the Under Secretary's letter of 26 November 1993, and declined to defer the removal directions which had been set for 8 April 1994.        In July 1994 F applied, out of time, for judicial review of the letters of 26 November 1993 and 7 April 1994.   The application for leave was refused on 27 July 1994, Mr Justice Ognall holding that the Secretary of State had not failed to take into account all relevant considerations.   In particular, he noted that the Secretary of State had borne in mind the difficulties the applicant would face if he had to choose between returning to Ghana with F or continuing to run his business in London.        F's renewed application for leave was refused by the Court of Appeal on 8 September 1994.   The Court of Appeal took note of the letter of 27 October 1993 from F's MP to the Secretary of State in which reference was made to the applicant's business.        F's removal, which had been suspended pending the judicial review proceedings, was set for 11 September 1994, and she and the baby (born on 31 December 1993) returned to Ghana on 10 September 1994.   The applicant paid for her ticket.   The elder child stayed in the United Kingdom with the applicant.        On 15 September 1994 the applicant's representative requested the Secretary of State to revoke the deportation order and to allow F to re-enter the United Kingdom.   The applicant's representative states that the Secretary of State refused to revoke the deportation order on 14 November 1994, and that an appeal has been entered.   No copy of the decision of 14 November 1994 or any subsequent appeal has been submitted.   COMPLAINTS        The applicant alleges violation of Articles 3 and 8 of the Convention.        Under Article 3 of the Convention, the applicant complains that the Secretary of State might have misunderstood the position of F's former boyfriend: he had in fact been accused of involvement in a plot to kill the chairman of the Provisional National Defence Council, rather than being on the same side as the Council.   The applicant requested the application of Rule 36 of the Commission's Rules of Procedure.        Under Article 8 of the Convention, the applicant considers that the removal of F interferes disproportionately with his family life. He underlines that he has indefinite leave to remain in the United Kingdom, and that both children hold British passports.   He accepts that he was aware of F's immigration status when they met and married, but considers that the immigration authorities nevertheless failed to give sufficient weight to the existence of his business interests in the United Kingdom.   In particular, he points to the fact that he runs the business with a partner, and that they employ a number of permanent and temporary staff, whose interests should also have been taken into account in determining whether to grant F permission to remain.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 17 June 1994 and registered on 2 September 1994.        On 9 September 1994 the President of the Commission refused the applicant's request for Rule 36 of the Commission's Rules of Procedure to be applied.   THE LAW   1.    The applicant alleges F's deportation to Ghana to be in violation of Article 3 (Art. 3) of the Convention.   Article 3 (Art. 3) provides as follows:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."        The Commission notes that the present application has been brought by the applicant, rather than by F.   Whilst the applicant is undoubtedly affected by F's having to leave the country, that is a matter for the Commission to consider under Article 8 (Art. 8) of the Convention.        No risk of the applicant being subjected to torture or inhuman or degrading treatment in Ghana has been alleged or made out.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant also alleges a violation of Article 8 (Art. 8) of the Convention.   He considers that the interference with his family life was not necessary in a democratic society.   He does not accept that the domestic authorities properly weighed the various factors involved, in particular the difficulties which would be caused if he was in effect required to follow his wife and their children to Ghana. Article 8 (Art. 8) of the Convention provides, so far as relevant, as follows:        "1.    Everyone has the right to respect for his ... 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 Commission recalls that Article 8 (Art. 8) of the Convention does not in itself guarantee a right to enter or remain in a particular country, although issues may arise where a person is excluded, or removed from a country where his close relatives reside or have the right to reside.   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: whether removal or exclusion of a family member from a Contracting State is compatible 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 or considerations of public order weighing in favour of exclusion (see Sorabjee v. the United Kingdom, No. 23938/94, Dec. 23.10.95, with further references).        The Commission notes the applicant was aware of F's immigration history and the pending deportation order when they married, and he must have been aware that her continued stay in the United Kingdom was precarious.   As to the children, who hold British passports, the Commission notes that the elder child remained in the United Kingdom when F left.   If the applicant chooses to stay in the United Kingdom, the younger child will be able to join him if and when her parents decide.        The Commission does not under-estimate the problems for the applicant - and for his business and its employees in particular - if he wishes to join F and their younger child in Ghana, but in the view of the Commission those problems cannot be regarded as the direct responsibility of the United Kingdom under the Convention.   The applicant was able to raise this matter before the domestic authorities: the matter was raised on judicial review, and the Divisional Court found that the Secretary of State had considered it. The Commission is unable to accept that the applicant's business interests, and those of his employees, should have prevailed over the interests of immigration control or that the authorities failed to give adequete weight to this aspect.   Moreover, it remains the case that the applicant is a Ghanaian national, and has not submitted that - apart from the business aspects - life would be particularly difficult for him there.        The Commission concludes that F's having to leave the United Kingdom does not disclose a lack of respect for the applicant's right to respect for his family life as guaranteed by Article 8 para. 1 of the Convention.        It follows that this part of the application is also 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)