European Court of Human Rights

THIRD SECTION

 

DECISION

 

AS TO THE ADMISSIBILITY OF

 

Application No. 40447/98

by Cynthia MITCHELL

against the United Kingdom

 

The European Court of Human Rights (Third Section) sitting on 24 November 1998 as a Chamber composed of

 

         Mr     J.-P. Costa, President,

         Mr     N. Bratza,

         Mr     L. Loucaides,

         Mr     P. Kūris,

         Mrs   F. Tulkens,

         Mr     K. Jungwiert,

         Mrs   H.S. Greve, Judges,

        

with  Mrs   S. Dollé, Section Registrar;

 

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

 

Having regard to the application introduced on 26 February 1998 by Cynthia MITCHELL  against the United Kingdom and registered on 25 March 1998 under file No. 40447/98;

 

Having regard to the report provided for in Rule 49 of the Rules of Court;

 

Having deliberated;

 

Decides as follows:

 

THE FACTS

 

            The applicant is a British citizen born in 1968 and currently residing in Chelsea, London. In the proceedings before the Court she is represented by Mr Bulathwela of Antons, solicitors of Haringay, London.

 

            The facts of the case, as they have been submitted by the applicant, may be summarised as follows:

 

            The applicant was born in the United Kingdom and has lived there all her life. The applicant met her husband, Craig Mitchell a Jamaican citizen, in November 1991 and started to cohabit shortly after that date. On 6 November 1991, Mr Mitchell had been admitted to the United Kingdom as a visitor for 6 months subject to a condition prohibiting employment. Mr Mitchell did not seek to regularise his stay in the United Kingdom. His status was discovered when he was acquitted on drugs charges on 28 April 1993. At this time, Mr Mitchell admitted to immigration officers that he had undertaken casual labouring work and that he knew he had overstayed his leave to remain. He was served with a notice of intention to deport and detained. He was released on bail on 24 May 1993. On 2 July 1993 the applicant and Mr Mitchell married and on 27 March 1994 their daughter was born.

 

            Mr Mitchell’s appeal against the decision to deport was dismissed on 16 August 1993 and he was refused leave to appeal to the Immigration Appeal Tribunal on 28 October 1993.

 

            In 1993 the applicant’s previous solicitors applied, on Mr Mitchell’s behalf, to the Home Officeto grant him further leaveon the basis of his marriage to the applicant or in the alternative on the basis of their cohabitation.

 

            Immigration officers called at the applicant’s home to investigate if themarriage was genuine and discovered that Mr Mitchell had been arrested on 5 November 1994 for drug dealing. On 3 April 1995, Mr Mitchell was sentenced to 5 years’ imprisonment for possession with intent to supply crack cocaine. In the immigration service marriage questionnaire the applicant stated that she would accompany Mr Mitchell if he was deported. The applicant says that she and her daughter visited Mr Mitchell every fortnight since his conviction and maintained regular phone contact. On 5 October 1995, the Secretary of State signed a deportation order against Mr Mitchell.

 

            In February 1997, the applicant’s solicitors asked the Home Office to revoke the deportation order and to grant Mr Mitchell leave to stay. On 28 April 1997, the Secretary of State refused. On 8 September 1997, the Secretary of State confirmed that Mr Mitchell would be deported on his release on parole on 25 September 1997.

 

            By this time, the applicant was expecting her second child in October 1997. The applicant’s solicitors sought leave to apply for judicial review of the Home Office decisionbut the High Court refused on 18 September 1997.

 

            A revised decision dated 5 December 1997 from the Secretary of State stated:

 

            "insufficient evidence has been produced to substantiate the claim that a common-law relationship akin to a marriage has subsisted since November 1991, or at any time prior to the initiation of deportation proceedings against Mr Mitchell. ... as <the applicant> and the children of the marriage will be given the opportunity of accompanying Mr Mitchell on deportation, at public expense if necessary, the Secretary of State is of the view that any interference with family life would be minimal and would be justifiable when set against the need to maintain an effective immigration control."

 

            The Court of Appeal refused leave to apply for judicial review on 15 December 1997. Mr Mitchell was deported to Jamaica on 19 December 1997.

 

 

COMPLAINTS

 

            The applicant invokes Article 8 of the Convention.The applicant complains that the deportation of her husband denied her the right to respect for her family life. The applicant alleges that insufficient regard was given to the fact that she was a British citizen, that all her family lived in the United Kingdom and that her children were born there and had the right to remain there. The applicant also contends that there was insufficient regard to her cohabitation with Mr Mitchell for two years prior to the marriage. Further she submits that the deportation would prevent the loving and strong bond from continuing between the children and their father. The applicant contends that the deportation was not justified or necessary in the public interest and that there were compelling and compassionate circumstances to outweigh the serious nature of Mr Mitchell’s overstay and his convictions.

 

 

THE LAW

 

            The applicant complains that the deportation of her husband denies her right to respect for her family life. She invokes Article 8 of the Convention which provides:

 

            "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 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 Court recalls that a ContractingState has the right to control the entry and residence of non-nationals in its territory. In this regard the Court recalls the close connection between immigration control and questions pertaining to public order and the wide margin of appreciation which states enjoy in this respect (see Eur. Court HR, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no.94, pp. 33-34, § 67, and Beldjoudi v. France, judgment of 26 March 1992, Series A no. 234, p. 27, §74).

 

            The Court also recalls that whilst a right to enter or remain in a particular country is not as such guaranteed by Article 8 of the Convention (see inter alia No. 9213/80, Dec. 5.5.81, D.R.24, p. 239, and No. 25439/94, Dec 5.4.95, D.R 81-B, p. 142), the exclusion or removal of a person from a country where his close relatives reside or have the right to reside may raise issues under Article 8 (see inter alia No. 9088/80, Dec. 6.3.82, D.R. 28, p. 160; No. 9285/81, Dec. 6.7.82, D.R. 29, p. 205; No. 23938/94, Dec. 23.10.95, unpublished; No 24381/94, Dec. 31.8.94, unpublished, and No. 25073/94, Dec. 28.2.96, unpublished).

 

            The Court finds that it does not consider that the circumstances of the present case raise any separate issues in regard to the right to respect for private life which do not fall within the compass of the right to respect for family life. The Court does not, therefore, propose to address as a separate issue whether there has been any breach of the right to respect for private life.

 

            The Court recalls that the duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country (see Eur. Court HR, Abdulaziz, Cabales and Balkandi, loc. cit., p. 34, § 68).

 

            Whether removal or exclusion of a family member from a Contracting State is incompatible with the requirements of Article 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 of them, whether there are any 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 expulsion (see eg. Nos 9285/81, Dec 6.7.82, D.R. 29, p. 205, and 11970/86, Dec. 13.7.87).

 

            The Court recalls that where there are children of the marriage who enjoy the nationality of the host state, an essential question is whether the children are of an age when they can be expected to adapt to the change in environment (see No. 23938/94, loc. cit., and No. 24865/94, Dec. 23.10.95, unpublished).

 

            An important though not decisive consideration will also be whether the marriage, albeit manifestly not one of convenience, was contracted at a time when the parties were aware that the immigration status of one of them was such that the persistence of the marriage within the host state would from the outset be precarious. The Court considers that where this is a relevant consideration it is likely only to be in the most exceptional circumstances that the removal of the non-national spouse will constitute a violation of Article 8 (cf Eur. Court HR, Abdulaziz, Cabales and Balkandi, loc. cit., p. 34, § 68).

 

            The Court notes the seriousness of the offence which gave rise to Mr Mitchell’s imprisonment and that led the authorities to adopt a firm approach to the deportation (see Eur. Court HR, C v. Belgium judgment of 7 August 1996, Reports 1996‑111, No.12, pp. 924-5, §§ 34-36).

 

            In the present case, the Court recalls that at the time of the applicant’s marriage to Mr Mitchell he was on bail following service of a notice to deport. At no stage prior to her marriage does the Court consider that the applicant could have reasonably held any expectation that Mr Mitchell would be granted leave to remain in the United Kingdom. Further it is not apparent that there are any obstacles which would effectively prevent the applicant from joining Mr Mitchell in Jamaica. In particular the Court notes the applicant stated to the immigration authorities that she would accompany Mr Mitchell if he was deported. The Court considers the children to be of an adaptable age, and that there is no effective obstacle to their accompanying the applicant to Jamaica.

 

            Accordingly, the Court finds there are no elements concerning respect for family life which, in the circumstances of the present case, outweigh valid considerations relating to the proper enforcement of immigration controls. The Court concludes that the removal of the applicant’s husband does not disclose a lack of respect for the applicant’s right to respect for family life guaranteed by Article 8 § 1 of the Convention.

 

            It follows, therefore, that the application must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

 

 

For these reasons, the Court, unanimously,

 

DECLARES THE APPLICATION INADMISSIBLE.

 

 

 

 

 

            S. Dollé                                                                               J.-P. Costa

            Registrar                                                                                President