Uppal and Others v. United Kingdom (No. 2)

Before the European Commission of Human Rights

App. 8224/78, No. 9285/81, Dec. 6 July 1982, D.R. 29 p. 211

(1981) 3 E.H.R.R. 399

9 July 1980

*399 Application No. 8224/78

(The Acting President, Mr. C. A. Norgaard; Messrs. Fawcett, Ermacora, Kellberg,

Daver, Opsahl, Polak, Frowein, Trechsel, Kiernan, Sampaio and Carrillo.)

9 July 1980

Friendly Settlement (Art. 28 (b)). Revocation of deportation order.

Without admitting any violation of the Convention, the Government revoked the deportation orders and allowed Mr. and Mrs. Uppal to remain in the United Kingdom. The applicants withdrew their applications. The Commission found that a friendly settlement had been secured on the basis of respect for human rights as defined in the Convention.

Representation

N. Peterman, solicitor (Messrs. Arnold, Gilbert and Karsberg), for the applicants.

REPORT OF THE COMMISSION (Friendly Settlement)

The Facts

The facts are set out in the Decision as to Admissibility at page 391 above.

Before the Commission the applicants submitted that the decision of 5 December 1977 to deport Mr. and Mrs. Uppal and the pending execution of that decision constituted a violation of their right to respect for family life ensured by Article 8 of the Convention, a violation allegedly aggravated by being discriminatory contrary to Article 14, not only as regards race, but also as regards birth and the artificial distinction between the status of illegal immigrants or overstayers. Mr. and Mrs. Uppal also submitted that the immigration procedures constituted a denial of the right under Article 6 (1) of the Convention to have their civil rights determined at a fair hearing by an impartial tribunal, and a failure by the State to provide an effective remedy for these alleged violations of the Convention as required by Article 13.

On 22 August 1978, the Acting President of the Commission indicated to the United Kingdom Government, in accordance with *400 Rule 36 of the Rules, that it would seem desirable in the interests of the parties and the proper conduct of proceedings if measures, which, according to the applicants' information, were in train to effect the immediate deportation of Mr. and Mrs. Uppal, could be stayed until the Commission had had an opportunity to consider again the admissibility of the application. In view of subsequent developments, the Commission did not renew this indication after 9 October 1978.

The Commission declared the application admissible on 2 May 1979. [FN1] Finally a friendly settlement of the case was reached, as described below.

FN1 See p. 391, supra.

Solution Reached

After declaring the application admissible, the Commission placed itself at the disposal of the parties with a view to reaching a friendly settlement of the matter, in accordance with Article 28 (b) of the Convention.

In accordance with its usual practice, it instructed its Secretary to contact the parties for this purpose. As a result the applicants' solicitor wrote to the Secretary on 16 May 1979 that the applicants, aware of the Commission's task under Article 28 (b) of the Convention, considered that theirs was a case which could be settled 'with honour' by allowing Mr. and Mrs. Uppal to remain in the United Kingdom as a humanitarian gesture. The humanitarian grounds put forward were the worsening of Mrs. Uppal's mental health and the physical health of the young child, Jaitinder, who not only requires surgery to cure his deafness, but also requires neuro-surgery for a serious bone condition of the head (Diastasis). It was stressed that the applicants did not regard their application as a test case and were of the opinion that the facts of their family situation 'are very distinguishable from a simple case where parents are claiming a right to remain [in the United Kingdom] because of the patrial status of their children'. The solicitor was instructed to say 'that, entirely without prejudice to the applicants' rights under their Petition, they would be prepared to ask the Commission not to consider their application any further if the United Kingdom Government were to formally indicate that they would allow Mr. and Mrs. Uppal to remain in the United Kingdom with permanent leave to remain and re-enter should they ever wish to go abroad on holiday or for any other purpose.'

There then ensued an exchange of correspondence between the applicants' solicitor and the Secretary, between the Secretary and the Deputy Agent of the United Kingdom Government and between the solicitor and Deputy Agent themselves.

On 20 February 1980, the Deputy Agent, referring to the letter dated 16 May 1979 from the applicants' solicitor, declared,

I have the honour ... to inform you that the Government, without prejudice to their position that there has been no violation of the *401 Convention, are prepared to allow Mr. and Mrs. Uppal to remain in the United Kingdom. Accordingly the deportation order against Mr. Uppal will be revoked and he will be given indefinite leave to remain. Mrs. Uppal will be given indefinite leave to enter the United Kingdom.

If Mr. and Mrs. Uppal forward their passports to the Immigration and Nationality Department of the Home Office, Lunar House, Wellesley Road, Croydon under reference U13942, the appropriate endorsements will be made.

In reply to a query raised by the applicants' legal representative concerning the right of Mr. and Mrs. Uppal to leave and re-enter the United Kingdom, the Deputy Agent of the United Kingdom Government explained in a letter dated 25 March 1980 addressed to the solicitor, a copy of which was sent to the Commission, that

... once leave to remain has been given to Mr. and Mrs. Uppal, they will be settled in the United Kingdom. If they were to leave the United Kingdom, their subsequent re-entry would be considered under paragraph 56 of the new Immigration Rules, HC 394, which were made and came into force on 1 March 1980. The relevant part of the rule is as follows: '... Any other passenger returning to the United Kingdom from overseas ... is to be admitted for settlement on satisfying the immigration officer that he was settled in the United Kingdom when he left and that he has not been away longer than two years'. The reference to 'any other passenger' covers Mr. and Mrs. Uppal since, whilst they are Commonwealth citizens, they were not settled here on 1 January 1973 and do not, therefore, as you have pointed out, fall within the first part of Rule 56. The second sentence of this rule is not confined to passengers who are not Commonwealth citizens, but relates to anyone who does not come within the first part of the rule.

I trust that this explanation makes it clear that were Mr. and Mrs. Uppal to leave the United Kingdom for a holiday they would be entitled to re-enter.

On 13 May 1980, the solicitor for the applicants declared:

With reference to Article 28 (b) of the European Convention of Human Rights and in particular with regard to the Declaration of the Government of the United Kingdom contained in their letter to the Commission of 20 February 1980, and with further reference to their letter from the Deputy Agent of the Government of the United Kingdom to ourselves of the 25 March 1980, we hereby confirm that Mr. and Mrs. Uppal on their own behalf and on behalf of their infant children, and Mr. and Mrs. Singh consider their application to have been settled and have instructed us to withdraw their application from the Commission, which we hereby do.

The Commission, at its session on 9 July 1980, found that the above-mentioned declarations showed that the parties had come to an agreement regarding the terms of a settlement. The Commission also found, having regard to Article 28 (b) of the Convention, that a friendly settlement of the matter had been secured on the basis of respect for human rights as defined in the Convention. For the above reasons, the Commission adopted this Report.