European Court of Human Rights

THIRD SECTION

 

DECISION

 

AS TO THE ADMISSIBILITY OF

 

Application no. 27663/95

by Theodora AJAYI and others

against the United Kingdom

 

            The European Court of Human Rights (Third Section) sitting on 22 June 1999 as a Chamber composed of

 

            Mr  J-P. Costa, President,

            Sir  Nicolas Bratza,

            Mr  L. Loucaides,

            Mr  P. Kūris,

            Mr  W. Fuhrmann,

            Mrs H.S.Greve,

            Mr  K. Traja,

 

 

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 10 January 1995 by Theodora AJAYI and others against the United Kingdom and registered on 20 June 1995 under file no. 27663/95;

 

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

 

            Having regard to the observations submitted by the respondent Government on 10 January 1997 and the observations in reply submitted by the applicants on 10 April 1997;

 

            Having deliberated;

 

            Decides as follows:

THE FACTS

 

            The first and fourth applicants were born in 1992 and 1995 respectively and are both British citizens. Their mother, the second applicant, born in 1962, is a Nigerian citizen. The third applicant, husband to the second applicant, father of the fourth applicant and step-father to the first applicant, is a British citizen, born in 1960. Since the end of 1997 the family have returned from Ireland to live in the United Kingdom in Milton Keynes.

 

            The applicants are represented by Nuala Mole, a lawyer working for the AIRE Centre in London. The facts may be summarised as follows.

 

A. The particular circumstances of the case

 

            B, the second applicant, first entered the United Kingdom on 18 August 1990 having been granted leave to remain as a visitor for six months. On 16 December 1990, B was discovered by an immigration officer to have taken up paid employment in breach of her entry requirements and she was arrested by the immigration authorities. Later that same day the Notice of Intention to make a deportation order was signed. B lodged an appeal with the Adjudicator.

 

            On 27 April 1991, B married F, the first applicant's father, a British citizen whom she had known for about three months. B applied for leave to remain as a spouse and dropped her appeal against the decision to deport. B became pregnant but was forced to leave the matrimonial home due to violence inflicted on her by F, and she moved into a hostel for battered women. On 10 February 1992, the first applicant was born. On 18 May 1992, B's application to remain on the basis of her marriage which had broken down was refused. A decree nisi dissolving the marriage was issued in October 1992. F contested paternity of the first applicant but the matter was proved by DNA testing. He has retained no contact with his daughter.

 

            On 21 April 1992, a deportation order was signed by the Secretary of State against B. An application to revoke the order was refused on 29 October 1992. Leave to apply for judicial review of this decision was granted and the judicial review hearing took place on 12 May 1994. It was held that the Secretary of State had failed to take into account the rights of the first applicant, a British citizen, when making the decision not to revoke the deportation order. The matter was remitted back to the Secretary of State. On 5 October 1994, by letter, the Secretary of State made a fresh refusal to revoke the Deportation Order of 21 April 1992. In a letter sent by the Immigration and Nationality Department to B's solicitors, received on 10 October 1994, it was stated:

 

"The Secretary of State has considered the suggested             difficulties which [the first applicant] might face in Nigeria and her rights as a British citizen and has balanced them against her mother's breach of the immigration control ... and remains of the view that there are insufficient grounds for revoking the deportation order."

 

            On 20 October 1994, B married the third applicant, a British citizen whom she had known for some time. The Secretary of State was informed of B's marriage. In a letter dated 1 December 1994, B's solicitors informed the Home Office that B was pregnant. This letter apparently crossed in the post with a letter to B's solicitors dated 7 December 1994 from the Home Office which stated:

 

"[B's] marriage on 20 October 1994 to a British citizen gives her no right to remain in the United Kingdom and the Secretary of State is not prepared to grant her leave to remain on this basis ... removal directions have been deferred for a period of six weeks after which further steps will be taken to effect [B's] removal".

 

            On 16 December 1994, representations were made by B's Member of Parliament (M.P.) to the Secretary of State informing him of B's pregnancy and the fact that she had developed fibroids which could lead to complications during childbirth, potentially requiring specialised medical supervision.

           

            On 9 January 1995, the applicants' representatives were informed by the Home Office that no fresh decision had been taken in the light of the information concerning B's pregnancy. However, that same evening B was served with fresh removal directions for herself and the first applicant to travel to Nigeria on 29 January and was informed by the immigration officers that the directions had been set in full knowledge of the pregnancy. The removal arrangements were however deferred for the Secretary of State to consider the representations made by B's M.P. Shortly afterwards, in a letter dated 2 March 1995, the Parliamentary Under Secretary of State informed the applicants' M.P. that since medical facilities existed in Nigeria for B's condition no grounds existed to justify revoking the deportation order.

 

            On 11 July 1995, the fourth applicant was born in the United Kingdom. On 24 September 1995, B was visited by immigration officers and two days later was served with a notice of variation of restrictions, obliging her to report to a police station on a weekly basis.

 

            In May 1996, B, the second applicant, applied for a visa to travel to Ireland. While the visa application was still pending before the Irish authorities, removal directions were set by the Home Office for the second applicant to be returned to Nigeria on 12 June 1996. On 11 June 1996, following intervention by the applicants' representatives before the European Commission of Human Rights, the removal directions were deferred to allow the second applicant to obtain the visa. The second applicant, as the wife of an EC national, was granted a visa by the Irish authorities and in August 1996 all the applicants moved to Ireland. For some months, the third applicant was unsuccessful in his attempts to find employment there. The financial cost of the family's move to Ireland and the expenses incurred by the third applicant, who travelled to work in the United Kingdom each week, left the applicants with very little disposable income. They had limitedpersonal savings. The visa granted to the second applicant to travel to Ireland provided no entitlement to social security assistance because the third applicant had failed to find employment there.

 

            In a letter dated 13 August 1996 the Immigration and Nationality Directorate stated in reference to the second applicant being granted a visa to travel to Ireland:

 

         "the Secretary of State remains of the intention to deport the second applicant to Nigeria should she fail to embark elsewhere".

 

            In or around March 1997 the second applicant gave birth to a third child. At some time before April 1997 the third applicant obtained employment in Ireland at a much lower wage than he was earning in the United Kingdom.

 

In September 1997, the applicants applied to return to the United Kingdom as, under European Union law, after spending a qualifying period in Ireland they could return to the United Kingdom. The deportation order against the second applicant was revoked. On 3 October 1997, a travel visa was issued and the whole family returned to the United Kingdom at the end of 1997. On 15 January 1998, the second applicant applied for a United Kingdom residence permit under European Union law and a permit was issued on 8 May 1998 until 12 May 2003.

 

B.        Relevant domestic law and practice

 

Section 3(5) of the Immigration Act 1971 provides that:

 

“A person who is not a British citizen shall be liable to deportation from the United Kingdom

(a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave ... .”

 

Section 24(1) of the Act provides:

 

“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 ... (b) if, having only a limited leave to enter or remain in the United Kingdom, he knowingly ... (ii) fails to observe a condition of the leave.”

 

Immigration Rules are made pursuant to Section 3(2) of the Act. The Immigration Rules HC 251 were applicable in the period June 1990 - 30 September 1994.

 

Paragraph 162 provides:

 

“On considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case ... . ”

 

Paragraph 164 (which is repeated in the new Immigration Rules HC 395 in force from June 1994 onwards at § 364) states:

 

“In considering whether to give effect to a recommendation for deportation ... the Secretary of State will take into account every relevant factor known to him, including: age; length of residence in the United Kingdom; strength of connections with the United Kingdom; personal history, including character, conduct and employment record; domestic circumstances; the nature of the offence of which the person is convicted; previous criminal record; compassionate circumstances; any representations received on the applicant’s behalf.”

 

Paragraph 166 provides:

 

“Deportation will normally be the proper course where the person has failed to comply with or has contravened a condition or has remained without authorisation. Full account is to be taken of all the relevant circumstances known to the Secretary of State including those listed in paragraph 164 before a decision is reached.”

 

The Secretary of State has issued guidance to those in his Department who determine cases involving marriage and children. The guidance is known as DP2/93. Paragraph 2 states:

 

“As a general rule deportation action 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 predates enforcement action; and

b) the marriage has lasted two years or more or, in the case of a common law relationship ... the couple have cohabited for two years or more ... .”

 

 

COMPLAINTS

 

            The applicants claim that the proposed removal of the second applicant and the measures taken to enforce it violated their rights under the Convention as follows:

 

1.         The first, second and fourth applicants complain that the proposed removal of the second applicant to Nigeria violated Article 3 of the Convention. The first applicant claims that if she was to follow her mother to Nigeria it would amount to her constructive deportation from the United Kingdom, the country of her birth and of which she is a citizen. She complains that obliging her to live in Nigeria, a country which has none of the advantages which would accrue to her in the United Kingdom, would be to subject her to inhuman and degrading treatment. She complains that if she was to remain in the United Kingdom the enforced separation from her mother would also constitute a violation of Article 3, particularly since she was abandoned by her real father and her mother is her only true parent.

 

            The second applicant, B, complains that the decisions by the Secretary of State to remove her whilst pregnant with her second child were, in the light of her medical condition, violations of Article 3 on behalf of herself and the fourth applicant, her then-unborn child.

 

2.         The applicants complain under Article 8 of the Convention that the said removal would have interfered with their right to private and family life.

 

3.         The first applicant complains under Article 2 of Protocol No.1 to the Convention that, should she be removed to Nigeria, she would be deprived of education in British schools.

 

4.         Further, all four applicants complain under Article 13 of the Convention that there was no effective remedy in respect of the removal.

 

5.         Finally, the first, third and fourth applicants complain that the proposed removal of the second applicant discriminated against them under Article 14 of the Convention as the children and husband of a foreign mother and wife. The first applicant complains that the proposed deportation of her mother discriminated against her as a child who was abandoned by her British father, whereas if her father not abandoned her, she submits, the immigration authorities would have had to take into account the access rights of her father.

PROCEDURE

 

The application was introduced on 10 January 1995 and registered on 20 June 1995.

 

On 16 October 1996, the European Commission of Human Rights decided to communicate the applicants’ complaint concerning Articles 8 and 13 of the Convention and Article 2 of Protocol No. 1 to the respondent Government.

 

The Government’s written observations were submitted on 10 January 1997. The applicants’ replied on 7 April 1997, after an extension of the time-limit.

 

On 6, 18 and 20 January 1998, the applicants provided further information about their circumstances.

 

On 29 May 1998, the Government submitted comments on the information provided, to which the applicants replied on 28 July 1998.

 

            On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

 

 

THE LAW

 

The first, second and fourth applicants invoke Article 3, 8, and 13 of the Convention in respect of the proposed expulsion of the second applicant. The first applicant, the daughter of the second applicant, invokes Article 2 of Protocol 1 as well. The third applicant, the husband of the second applicant, invokes Articles 8 and 13 of the Convention. The first, third and fourth applicant invoke Article 14 of the Convention.

 

1. Concerning Article 3 of the Convention

 

            The first, second and fourth applicants complain of a breach of Article 3 of the Convention in respect of the proposed expulsion.

 

            Article 3 of the Convention provides:

 

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

  

            The first applicant submits that the expulsion of her mother would have constituted “constructive deportation” from the country of which she is a citizen, depriving her of the advantages available to her there.  The second applicant refers to the decision to remove her being taken despite the medical difficulties surrounding her pregnancy and the risk thereby to the fourth applicant, then unborn.

 

            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 of the Convention. Further, the Court has held that the suffering occasioned must attain a certain level before treatment can be classified as 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, § 162).

 

            The Court notes as regards the alleged risk to the second and fourth applicant in this case that no ill-effects in fact occurred. In the absence of any substantiated effect on their physical or psychological health, the Court is not satisfied that the uncertainty and anxiety engendered by the situation was such as to reach the minimum level of severity prohibited by Article 3 of the Convention. Insofar as the first applicant complains of constructive deportation, the Court does not find that this discloses treatment falling to be classified as inhuman and degrading within the meaning of this provision. In particular, there is no indication as to the degree or nature of the alleged hardship or deprivation which the first applicant would have faced if she had accompanied her mother to Nigeria.

 

            In these circumstances, this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

 

2. Concerning Article 8 of the Convention

 

            The applicants complain of a breach of Article 8 of the Convention in respect of the proposed expulsion.

 

Article 8 provides:

 

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

 

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 submit, inter alia, that as the United Kingdom has not ratified Protocol No. 4 the Court can only consider the proposed deportation (alleged “constructive exile”) under Article 8. They argue that the  proposed deportation of the applicant did not fail to respect the family or private life of any of the applicants. Article 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. The third applicant married and started a family with the second applicant knowing that she had been served with a deportation order and their family life was built on that foundation. Further, the first and fourth applicants are young enough to adapt to life in Nigeria and the fact that they are British citizens is not of particular significance in this context. The Government also submit that there is no insurmountable obstacle which would have prevented the first, third and fourth applicants from accompanying the second applicant to Nigeria. They state that the third applicant could have got a job there. If the third applicant had chosen to stay in the United Kingdom, this would have been his choice and not an interference by the State in his life.

 

Similarly, the Government submit that the inconveniences caused by the family’s removal to Ireland and the third applicant’s failure to find employment quickly was not attributable to the existence of the deportation order itself. Family life was not ruptured but relocated. The applicants could benefit from free health care in Ireland. The fact that they would have been better off financially in the United Kingdom is not evidence of lack of respect for private or family life. They also dispute the applicants’ claim that under European Union law the third applicant would have obtained an automatic right to reside in the United Kingdom as the result of a period resident in another European Union State.

 

The Government submit that, in the alternative, any interference was proportionate to the legitimate aims pursued under Article 8 § 2 of the Convention, namely, the proper enforcement of immigration controls. A margin of appreciation is conceded to the State when an original assessment is made. In this case, the second applicant committed a criminal act when she worked in breach of the immigration rules. On arrival in the United Kingdom, she had told immigration officers that she had work and family in Nigeria. Then she had started family life in England in full knowledge that she had no right to remain. In addition to these factors, the Government claim that the State is entitled to maintain a policy of general application and to have regard to the effects of breaching such policy.

 

            The applicants submit, inter alia, that the measures adopted disclose a breach of Article 8 of the Convention. They point out that the third applicant married the second applicant believing she would be allowed to remain with him. This was a legitimate expectation in respect of genuine and valid marriages with foreigners. The first and fourth applicants claim that the proposed deportation of B, the second applicant, constituted the constructive deportation of themselves, emphasising that they are British citizens and have the right of abode in the United Kingdom. They would have lost, as a result, the benefits of the health, education and welfare services of their own country. While the first, third and fourth applicants could theoretically have remained, they complain that the separation from the second applicant would have deprived them of a family life. The second applicant complains that if she had been deported she would have lost the enjoyment of her family life with her husband and two children. The third applicant was born, bred and is employed in the United Kingdom, with no links to Nigeria, and financially supports the first, second and fourth applicants. His parents and his brothers and sisters and their families reside in the United Kingdom. Even assuming that he would have been granted a visa to enter and reside in Nigeria, he feared that he would not be granted a work-permit because he is not professionally skilled. He submits that in the light of this fact it would have been impossible for him to follow his wife, the second applicant, and that her deportation would have violated his right to family life.

 

The applicants submit that the interference with family and private life occasioned by the proposed expulsion of the second applicant from the United Kingdom was disproportionate to the legitimate aim pursued under Article 8 § 2 of the Convention. They state that it is clear that the United Kingdom has no discretion under European Union law to prevent her return after spending a qualifying period in another member State. In addition, the applicants contend that the second applicant’s breach of the immigration rules seven years ago in the circumstances of this case did not warrant the fragmentation of a stable family unit. There was no realistic prospect of family life continuing in Nigeria.

 

            Notwithstanding that the applicants moved to Ireland and the second applicant has not been deported to Nigeria, they submit that they are still victims of a violation. The primary cause of their living in Ireland was the Government’s refusal to allow them to live in the United Kingdom, which was the only thing they could do to avoid splitting up the family. The applicants’ family life was damaged by the severe financial consequences of the move and the enforced separation. The fact that the third applicant subsequently obtained employment in Ireland does not prevent there having been a breach of Article 8 of the Convention in the intervening period.  In particular, the third applicant had to travel to work in the United Kingdom which caused him to be separated for five or six days every week, disrupting his family life for several months. This situation, they claim, caused particular distress to the applicants because of the second applicant's pregnancy and her medical history of fibroid complications during childbirth. The applicants further complain that the costs incurred by their move to and from Ireland, the absence of social security assistance and particularly the third applicant's travel and accommodation expenditure, meant that their financial stability was precarious. The applicants complain that they were forced to move to Ireland to avoid the second applicant being deported by the United Kingdom authorities and that they suffered very significant hardship as a result.

 

            The Court does not find it necessary to determine whether the applicants may still claim to be victims of a violation of Article 8 of the Convention since the second applicant obtained a United Kingdom residence permit because it finds this aspect of the case may be rejected for the reasons set out below.

 

            The Court recalls that, while Article 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. However, 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 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, § 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, the extent of the ties in the Contracting State, 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 weighing in favour of exclusion ( see eg. see Eur. Court HR, Abdulaziz and others judgment referred to above at § 68, Berrehab v. the Netherlands judgment of 21 June 1988, Series A no. 138, § 29, Beldjoudi v. France judgment of 26 March 1992, Series A No. 234, p. 28, § 78,Gül v. Switzerland judgment of 19 February 1996, Reports 1996-I p. 159 at p. 176, § 42,Bouchelkia v. France judgment of 29 January 1997, Reports of judgments and decisions 1997-I, p. 65, §§ 50-53).

 

Another important 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 the case 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 Balkandali, op. cit., p. 34, § 68).

 

            In the present case, the Court recalls that the second applicant had entered the United Kingdom in 1990 with limited permission for six months and breached the conditions of that entry by taking up paid employment, which was the reason for the commencement of the deportation proceedings against her. At the time of her marriage to the third applicant, the deportation order against her had been signed and she had been notified of the intention to deport her. Notwithstanding the fact that the third applicant was a British citizen, the applicants cannot claim that this gave the second applicant any right overriding the deportation order already issued. Similarly, the first and fourth applicants were born at a time when the second applicant’s applications to obtain leave to remain were still pending and she could claim no right of residence. The situation of the applicants is therefore to be distinguished from that in the Mehemi case (Eur. Court HR, Mehemi v. France judgment of 26 September 1997, Reports 1997-VI, p. 1959, § 37), where the marriage of the applicant and his wife predated the expulsion proceedings and the applicant had very strong links with the expelling country.

 

            The Court further observes that the children were of an adaptable age at the time at which the order was to be enforced.  Nor are the problems adverted to with respect to the loss of advantages in moving from the United Kingdom shown to be of such a nature or degree as to impinge on respect for family life. Accordingly, it finds no elements concerning respect for family life which in the circumstances of the case outweigh valid considerations relating to the proper enforcement of immigration controls. The Court concludes that the proposed removal of the second applicant did not disclose a lack of respect for the applicants’ right to respect for family life guaranteed by Article 8 § 1 of the Convention.

 

            It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

 

            3. Concerning Article 2 of Protocol No. 1

 

            The first applicant complained that the proposed deportation would have deprived her of education in British schools, invoking Article 2 of Protocol No. 1, which provides as relevant:

 

            “No person shall be denied the right to education ... .”

 

The Government state that the applicants could not complain about not receiving education in a country where they were no longer resident. However, if the second applicant had chosen to take her children with her, there would have been no deprivation contrary to Article 2 as the reason for the children not receiving education in the United Kingdom would have been the second applicant’s decision to take the children with her, not the proposed deportation. In any event there were adequate educational facilities in Nigeria.

 

The first applicant claims that she would have been unable to afford education at a similar standard in Nigeria.

 

            The Court adverts to its findings above, namely, that the proposed deportation of the second applicant was a valid measure of immigration control and notes, furthermore, that the first applicant was not required to move to Nigeria. In these circumstances, it considers that the measures taken by the immigration authorities cannot be construed as disclosing any interference with the first applicant’s right to education.

 

            It follows that this part of the application must also be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

            4. Concerning Article 14 of the Convention

 

            The first, third and fourth applicants complain that the proposed removal of the second applicant discriminated against them as the children and husband of a non-national mother and wife. The first applicant also submits that she was also treated differently as she had been abandoned by her father, since otherwise the immigration authorities would have had to have regard to the access rights of her father.

 

They invoke Article 14 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.”

 

            The Government submit that this aspect of the case is manifestly ill-founded.

 

            Even assuming that the applicants can be said to be in a comparable position as regards other British citizens whose mother or spouse is also a British citizen, the Court recalls that whether a difference in treatment constitutes discrimination in the sense of Article 14 of the Convention depends on whether or not there exists an objective and reasonable justification. This requires that the difference pursues a legitimate aim and that there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. In this assessment of whether and to what extent differences in otherwise similar situations justify a different treatment, Contracting States enjoy a margin of appreciation which will vary according to the circumstances, subject-matter and background (see eg. Eur. Court H.R., Lithgow and Others judgment of 8 July 1986, Series A no. 102, pp. 66-67, § 177).

 

            Having regard to the above, the Court recalls that it has found the proposed measure to be compatible with the requirements of Article 8 of the Convention in respect of the implementation by the United Kingdom of its immigration policy. It recalls the fact that the second applicant was in breach of immigration regulations and that there were no effective obstacles preventing the applicants from continuing their family life elsewhere. The Court consequently finds that the proposed measure of deportation of the second applicant had a reasonable and objective basis falling within the margin of appreciation enjoyed by the domestic authorities. There is, therefore, no evidence of discrimination contrary to Article 14 of the Convention disclosed in the present case.

 

            It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

            5. Concerning Article 13 of the Convention

           

            The applicants submit that there was no effective remedy in respect of the removal. Judicial review did not provide any effective opportunity to obtain a determination on the merits of their complaints by an independent body.

 

They invoke Article 13 of the convention which 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.”

 

The Government submit that as there is no arguable claim that the applicants’ rights were violated there is no legitimate complaint under Article 13 of the Convention. In any event the Government submit that judicial review would provide a remedy as the court would be reviewing immigration policy which specifically refers to the Convention.

 

            The Court recalls that Article 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, § 52).

 

   The Court finds that the applicants cannot be said, in the light of its findings above, to have an "arguable claim" of a violation of their Convention rights.

 

            It follows that this part of the application also must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

 

For these reasons, the Court, unanimously,

 

DECLARES THE APPLICATION INADMISSIBLE.

 

 

 

 

 

 

 

   S. Dollé                                                                                         J.-P. Costa

   Registrar                                                                                        President