European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 12698/06
by Amina Hassan OSMAN and Others
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 4 September 2007 as a Chamber composed of:

Mr J. Casadevall, President,
Sir Nicolas Bratza,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä, judges,
and Mrs F. Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 4 April 2006,

Having regard to the formal declarations accepting a friendly settlement of the case.

Having deliberated, decides as follows:

THE FACTS

The applicants, sisters, were Somali citizens living in Nairobi, Kenya:

• Amina Hassan Osman, born in 1980;

• Leila Hassan Osman, born in 1982;

• Nasra Hassan Osman born in 1984;

• Hawa Hassan Osman, born in 1989.

They were represented before the Court by Mr M. Paramedvaran, a solicitor practising in London. The respondent Government were represented by their Agent, Ms Kate Jones (née McCleery) of the Foreign and Commonwealth Office, London.

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1979 Mrs Nadifi Ahmen Hassan married Hassan Osman and they lived together in Mogadishu, Somalia. They had six children: in addition to the four applicants there were Farhan and Mohammed, who is the twin of Amina (above).

The parents divorced in 1991, the children remaining with Mrs Hassan. In 1991 the civil war began in Somalia. The family home was partially destroyed by artillery.

In 1992 Mrs Hassan married Abdulkadir Mohamud and they fled together towards the Kenyan border with the children and Mrs Hassan’s father. When her father became ill on the journey, the family split. Mrs Hassan took her father by the easier route to Ethiopia and Mr Mohamud travelled with the children to Nairobi with other refugees.

In 1992 Mrs Hassan’s father died in Addis Ababa.

In 1993 Mrs Hassan learned from Mr Mohamud that Hawa had fallen ill and that Farhan was struggling to cope in Kenya. A decision was taken, despite the risks, to return Hawa and Farhan to their grandmother’s care in Mogadishu. Mr Mohamud escorted the children there. Amina, Leila and Nasra were left with a Somali family, connected to distant relatives. They were not, and are not legally resident in Kenya. The girls occupied a single cramped room in an overcrowded property, which had poor sanitation and was of unsafe construction. The girls slept on mattresses on the floor and survived on two meals a day, lacking funds for more food. Mohammed resided elsewhere.

On his return to Somalia, Mr Mohamud fell ill. He gave money from his family to enable Mrs Hassan to travel to the United Kingdom. She arrived there in or about 5 or 6 December 1994, claiming asylum shortly after.

On 5 May 1995, the Secretary of State refused her asylum claim but she was granted leave to remain exceptionally on the basis of humanitarian protection. Mr Mohamud, whose health was deteriorating, then arranged for Hawa and Farhan to be conveyed to Ethiopia to make an application for entry clearance to the United Kingdom as Mrs Hassan’s dependants.

On 27 March 1996 he died. The entry clearance applications apparently lapsed. Without means or family support, Hawa and Farhan were compelled to return to Mogadishu.

In 1997 Mohamed Ali Hussein, Mrs Hassan’s first cousin who had arrived in the United Kingdom in 1994, began sending funds to Kenya to support the children.

On 30 October 1998, applications for entry clearance were lodged at the British High Commission in Nairobi on behalf of Amina, then aged 17, Leila, then aged 16 and Nasra, then aged 14.

In 2000, Hawa, still in Mogadishu, began to suffer from deteriorating eyesight. She required surgery which was not available in Somalia. Mrs Hassan arranged for her to be conveyed to Kenya to join her sisters. On 31 May 2001, an application for entry clearance was also lodged for her. She was then aged 12.

On 3 December 2001 Mrs Hassan acquired settled status in the United Kingdom.

On 2 January 2002 the British High Commission in Nairobi refused entry clearance, as they had not demonstrated that they could be maintained and accommodated without reliance on public funds. The applicant children lodged an appeal, invoking inter alia Article 8 of the Convention.

On 4 September 2003, the Adjudicator heard the appeal. Mrs Hassan and her first cousin Mohammed Ali Hussein gave evidence that they could provide funds of some 200 to 300 United States dollars per month. In his decision of 3 October 2003, the Adjudicator found that although adequate accommodation was available the level of maintenance available meant that some dependency on public funds would be inevitable. He found that Mohammed was living an independent life. However, he considered that the refusal of entry to the applicant sisters was disproportionate in terms of Article 8 of the Convention due to, inter alia:

• the applicants’ very poor living conditions;

• the health problems suffered by three sisters;

• the fact that all had been under 18 at the time of the applications;

• his assessment that family reunion could only be achieved in the United Kingdom as there were insurmountable obstacles to Mrs Hassan residing in either Somalia, from which she had fled due to war and where lawlessness continued, or Kenya, where she had no legal status.

On 21 January 2004, the Immigration Appeal Tribunal ("IAT") granted permission to appeal to the Secretary of State.

On 23 February 2005, the IAT upheld the Secretary of State’s appeal. It found that the matters set out by the Adjudicator could not be regarded as very unusual or extraordinary and consequently the rights and interests of the individuals could not outweigh the aims of effective immigration control.

On 6 November 2005, the Court of Appeal rejected, at an oral hearing, a renewed application for permission to appeal.

COMPLAINTS

The applicants complained under Article 8 of the Convention that the refusal of entry was a disproportionate interference with their private and family life and disclosed a failure to comply with a positive obligation.

THE LAW

On 24 November 2006, the Government of the United Kingdom informed the Court that they granted the applicants entry clearance to the United Kingdom.

On 3 August 2007 the Court had received the following declaration from the respondent Government.

“Following the grant of entry clearance to the applicants, I, John Grainger, Agent for the Government of the United Kingdom, declare that the Government of the United Kingdom offer to pay ex gratia 3,615 pounds sterling to Ms Nadifo Ahmed Osman, Ms Amina Hassan Osman, Ms Leila Hassan Osman, Ms Nasra Hassan Osman, and Ms Hawa Hassan Osman with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover costs and expenses, will be payable within three months from the date of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

On 3 August 2007 the Court received the following declaration from the applicants’ representative.

“Following the grant of entry clearance to the applicants, we, Wilson & Co., solicitors, the applicants’ representatives, note that the Government of the United Kingdom are prepared to pay ex gratia the sum of 3,615 pounds sterling to Ms Nadifo Ahmed Osman, Ms Amina Hassan Osman, Ms Leila Hassan Osman, Ms Nasra Hassan Osman, and Ms Hawa Hassan Osman with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover costs and expenses, will be payable within three months from the date of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

We accept the proposal and waive any further claims against the United Kingdom in respect of the facts giving rise to these applications. We declare that this constitutes a final resolution of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Fatoş Aracı Josep Casadevall
Deputy Registrar President