EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 14830/89

                        Abdullah YOUSEF

                            against

                      the United Kingdom

                   REPORT OF THE COMMISSION

                   (adopted on 30 June 1992)

TABLE OF CONTENTS

                                                          Page

I.   INTRODUCTION

     (paras. 1 - 13). . . . . . . . . . . . . . . . . . . .1-2

     A.   The application

          (paras. 2 - 4). . . . . . . . . . . . . . . . . . .1

     B.   The proceedings

          (paras. 5 - 8). . . . . . . . . . . . . . . . . . .1

     C.   The present Report

          (paras. 9 - 13) . . . . . . . . . . . . . . . . . .2

II.  ESTABLISHMENT OF THE FACTS

     (paras. 14 - 27) . . . . . . . . . . . . . . . . . . .3-6

     A.   The particular circumstances of the case

          (paras. 14 - 25). . . . . . . . . . . . . . . . .3-5

     B.   The relevant domestic law and practice

          (paras. 26 - 27). . . . . . . . . . . . . . . . .5-6

III. OPINION OF THE COMMISSION

     (paras. 28 - 53) . . . . . . . . . . . . . . . . . . 7-13

     A.   Complaints declared admissible

          (para. 28). . . . . . . . . . . . . . . . . . . . .7

     B.   Points at issue

          (para. 29). . . . . . . . . . . . . . . . . . . . .7

     C.   As regards Article 8 of the Convention

          (paras. 30 - 44). . . . . . . . . . . . . . . . 7-11

     D.   As regards Article 13 of the Convention

          (paras. 45 - 51). . . . . . . . . . . . . . . .11-13

     E.   Recapitulation

          (paras. 52 - 53). . . . . . . . . . . . . . . . . 13

APPENDIX I  : HISTORY OF PROCEEDINGS. . . . . . . . . . . . 14

APPENDIX II : DECISION ON ADMISSIBILITY . . . . . . . . . . 15

               OF THE APPLICATION

I.   INTRODUCTION

1.   The following is an outline of the case, as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.   The application

2.   The applicant is a citizen of Kuwait, born in 1960 and resident

in Sajat, Kuwait.  He was represented before the Commission by

Mr. P. Simm, Solicitor, Messrs. Edwards Frais, Liverpool.

3.   The application is directed against the United Kingdom.  The

respondent Government were represented by their Agent, Mr. M.C. Wood,

succeeded by Mr. N. Parker and Mrs. A. Glover, all of the Foreign and

Commonwealth Office.

4.   The case concerns the refusal by British immigration authorities

to allow the applicant to re-enter the United Kingdom where his young

son by a broken marriage lives and with whom he wished to stay in

contact.  It raises issues under Articles 8 and 13 of the Convention.

B.   The proceedings

5.   The application was introduced on 7 February 1989 and registered

on 28 March 1989.  After a preliminary examination of the case by the

Rapporteur, the Commission considered the admissibility of the

application on 6 July 1989.  It decided to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.  The

Government's observations were submitted, after an extension of the

time limit, on 20 December 1989, to which the applicant replied on

6 March 1990.

6.   On 7 September 1990 the Commission decided to invite the parties

to present their submissions orally at a hearing.  The President of the

Commission granted the applicant legal aid on 26 October 1990.  The

hearing, on admissibility and merits, was held in Strasbourg on

8 November 1990.  The Government were represented by Mr. N. Parker,

Agent, Mr. J. Eadie, Counsel, Mr. S. Bramley, Home Office, Adviser, and

Mr. C. Miller, Home Office, Adviser.  The applicant was represented by

Mr. P. Simm, Solicitor, Ms. S. Lewis Anthony, Inter Rights, Adviser,

and Ms. M. O'Reilly, Adviser.  Following the hearing and deliberations

the Commission declared the application admissible on the same day.

7.   On 14 December 1990 the parties were sent the text of the

Commission's decision on admissibility and invited to submit such

further evidence or additional observations as they wished.  No further

observations were submitted by the parties.

8.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  Consultations with the parties took place between

8 February 1991 and 25 March 1992.  In the light of the parties'

reaction, the Commission now finds that there is no basis on which such

a settlement can be effected.

C.   The present Report

9.   The present Report has been drawn up by the Commission in

pursuance of Article 31 para. 1 of the Convention and after

deliberations and votes in plenary session, the following members being

present:

          MM.  C. A. NØRGAARD, President

               F. ERMACORA

               E. BUSUTTIL

               G. JÖRUNDSSON

               A. WEITZEL

               H. G. SCHERMERS

          Mrs. G. H. THUNE

          Sir  Basil HALL

          M.   C. L. ROZAKIS

          Mrs. J. LIDDY

          MM.  J.-C. GEUS

               M. P. PELLONPÄÄ

10.  The text of this Report was adopted on 30 June 1992 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

11.  The purpose of the Report, pursuant to Article 31 of the

Convention is:

     i)   to establish the facts, and

     ii)  to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

12.  A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

13.  The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.  ESTABLISHMENT OF THE FACTS

A.   The particular circumstances of the case

14.  The applicant first entered the United Kingdom in 1978 for the

purpose of nautical studies under the sponsorship of his employers, the

United Arab Shipping Company.  He returned on several occasions between

1979 and 1985 in connection with his studies and training.  On

6 July 1985 the applicant married a British citizen.  On the basis of

this marriage he was initially granted leave to remain until

13 August 1986.  A child of the marriage, Tariq, was born on

15 March 1986.

15.  On 4 February 1986 the applicant was convicted of an offence

under the Theft Act 1968 (Abstracting electricity - fined £100).  He

was advised on 20 August 1986 that this conviction would be taken into

account in considering any future application for an extension of his

stay.

16.  On 12 August 1986, he re-applied at the immigration office in

Liverpool for further leave to remain as the husband of a British

citizen.  When his wife was interviewed, however, she said that she

intended to divorce him for physical and mental cruelty (treatment

denied by the applicant);  she also intended seeking an injunction to

prevent the applicant having access to their son.  When the applicant

was interviewed he stated that he was unemployed, that he had not

worked for the United Arab Shipping Company for two years, that he had

failed his studies and would not pursue them further and that the

family still lived together, the mortgage and other living expenses

being met from public funds.

17.  While the applicant's re-application was being considered his

wife informed the immigration officer that she had decided not to

proceed with plans to divorce her husband but to make a final attempt

at reconciliation.  She added, however, that she would proceed with a

divorce if matters were again to become unsatisfactory. Given his

wife's statements it was decided to grant the applicant a further

period of leave to remain until 13 August 1987.

18.  The applicant travelled to Spain on 1 August 1987.  While he was

abroad, his wife attended the Immigration Office at Liverpool and said

that her husband was due to return on 8 August.  She wished action to

be taken to prevent her husband gaining access to herself and their

child, Tariq.  She stated that she intended to divorce him, because of

his violence towards her, and to leave their home for an address which

she did not wish to disclose before her husband returned.  She added

that the home was liable to be repossessed by the applicant's debtors.

She subsequently informed the immigration officer that she was not

certain that she did not want to see her husband as she had yet to

discuss divorce with him and had been unable to secure alternative

accommodation.  The applicant claims that his wife was pressured by

immigration officers, for racist reasons, to take this stance.  The

applicant arrived at Manchester Airport on 8 August 1987 and sought

leave to enter to rejoin his wife. He was granted temporary admission

pending inquiries and, for the convenience of all parties,

responsibility for the case was transferred to the Immigration Office

at Liverpool.

19.  On 1 October 1987, the wife was interviewed and said that her

marriage to the applicant was definitely over and that she had now left

their home.  Her solicitors later provided a letter confirming that she

had filed a divorce petition on 23 September and that their

instructions were to pursue it.  On 6 October, the immigration officer

interviewed the applicant.  He said that his wife was still at their

home.  When his wife's earlier statement to the contrary was put to him

he replied, "She told me she would come back.  I was told by my

solicitors to say that she was living with me."  The applicant also

said that he was unemployed with no source of income.

20.  The immigration officer then considered the facts of the case:

The applicant had sought entry in order to rejoin his wife.  It was

evident, however, that his marriage no longer subsisted and, therefore,

that each of the parties did not have the intention of living

permanently with the other as a spouse.  The officer was therefore not

satisfied that the applicant qualified for admission under the

Immigration Rules and accordingly refused him leave to enter on

6 October 1987.  While in detention pending arrangements for his return

to Kuwait the applicant took an overdose of paracetamol tablets and he

was immediately taken by ambulance to hospital where he was admitted

for observation until 12 October.  The Hospital Registrar opined that

there was no evidence to suggest mental disorder or any lasting ill

effects. The applicant was granted further temporary admission and his

solicitors applied for judicial review of the immigration officer's

decision.  This application was refused by the High Court on

3 November 1987.  Counsel advised against an appeal to the Court of

Appeal given its little prospect of success; thus a renewed application

for leave was abandoned.

21.  The applicant had a strong loving relationship with his son and

sought his custody in the divorce proceedings.  During those

proceedings the wife openly recognised the good relationship between

the father and the child.  Accordingly, interim care and control were

given to the wife, with regular short access visits for the applicant,

supervised by the social services.  The applicant exercised supervised

access to Tariq once a week for an hour at a time between November 1987

and October 1988 and then on five occasions under the same conditions

between 1 November 1988 and 23 January 1989.  The nature of the access

was restricted because of the impending threat of the applicant's

deportation and the wife's fear that in those circumstances the

applicant might abscond with the child.  The applicant apparently

conceded that if he had had freer access to Tariq he would have

absconded with him.

22.  A matrimonial court welfare report dated 10 March 1988 talked of

"a strong bond that exists between father and son".  A further report

dated 26 October 1988 talked of the child, Tariq, "relating in a warm

and loving way to both" of his parents.  The final welfare report of

23 January 1989 not only talked of a "strong and affectionate bond

between the father and the child", but clearly stated that it would

have been beneficial to the child if that could be maintained in more

normal circumstances, i.e. without the threat of the applicant's

removal from the United Kingdom which effectively prevented his

reasonable access to the child.

23.  On 30 January 1989 the matrimonial court (Liverpool County Court)

held that it was in the best interests of the child to have access to

his "caring and loving" father, but no access was ordered because of

the applicant's pending removal from the United Kingdom. The County

Court envisaged limited access on agreement by the parents should the

applicant return.  On 25 January 1989 the Minister of State had

rejected representations made in November 1988 that the applicant be

allowed to remain in the United Kingdom to ensure access to his son on

the basis of the judgment of the European Court of Human Rights in the

Berrehab case (judgment of 21 June 1988, Series A no. 138).

24.  In a letter of 30 November 1988, the applicant's representatives

at that time, the Liverpool Law Centre, informed the Home Office for

the first time that he had a strong and loving relationship with

another British citizen by whom he had had a child, Leon, born on

29 August 1987.  According to the Law Centre, the relationship between

this lady and the applicant, begun in November 1986, had not developed

into a fuller loving relationship until the applicant and his wife had

separated.  The Secretary of State was urged to allow the applicant

exceptionally to remain to continue the relationship for the benefit

of this child.  The Minister of State rejected these new elements on

25 January 1989.  He considered that it would be "quite wrong" to allow

the applicant to transfer to the relationship with the other British

woman all the arguments he had been pursuing so vigorously to be

admitted in order to stay with his wife.  He insisted that the

applicant leave the country.  He found the applicant's case

distinguishable from the Berrehab judgment by which, anyway, he

considered himself not bound.  The applicant left the United Kingdom

pursuant to the Secretary of State's removal directions on

24 February 1989.  He received legal advice that an application for

judicial review of the Minister's refusal to exercise his discretion,

exceptionally and outside the Immigration Rules, would have little

prospect of success.

25.  Since leaving the United Kingdom the applicant has had virtually

no contact with his first son, Tariq.  He claims to have sent the child

several cards, but his ex-wife has stated that only one letter, written

a month after his departure, has been received.  He has not applied for

leave to enter as a visitor to see Tariq.  He has, however, kept in

regular contact with the mother of his second child, although he has

made no application for entry clearance as her fiancé.  He states that

he is experiencing difficulties renewing his passport and is therefore

unable to travel.

B.   The relevant domestic law and practice

26.  Section 3(1)(a) of the Immigration Act 1971 prohibits the

unauthorised entry of anyone other than British citizens into the

United Kingdom.  Leave of entry may be given by immigration officers

(section 4(1) of the 1971 Act) to spouses provided, inter alia, that

the couple has the intention of living permanently together and that

they can maintain themselves without recourse to public funds

(paragraph 46 ("spouses") of the Statement of Changes in Immigration

Rules HC 169, as amended by paragraph 10 of HC 503).  Other than entry

as a temporary visitor or tourist, there is no provision in these Rules

to authorise long-term entry and leave to remain for the purpose of

exercising regular parental access rights to a child.  Such leave could

only be granted outside the Rules, exceptionally and at the discretion

of the Secretary of State.  Section 13 of the 1971 Act provides, inter

alia, for a right of appeal to an independent Adjudicator against a

refusal of entry, which appeal, in the circumstances of this kind of

case, must be lodged from outside United Kingdom territory.  Whilst an

Adjudicator's task is principally to ensure the lawful application of

the Immigration Rules, he may also make recommendations that matters

falling entirely within the Secretary of State's discretion be decided

differently.  Such recommendations are sometimes followed. Judicial

review of ministerial decisions may be granted and the offending

decision quashed if it could be shown to be illegal, improper or

irrational.  It would lie if the decision maker had taken account of

irrelevant considerations or failed to take into account relevant

considerations.

27.  Kuwaiti citizens do not need visas to enter the United Kingdom.

Applying for entry clearance is therefore optional, albeit advisable.

A passenger to the United Kingdom could be admitted as a visitor for

up to six months.

III. OPINION OF THE COMMISSION

A.   Complaints declared admissible

28.  The Commission has declared admissible the applicant's complaints

that the refusal to allow him to re-enter the United Kingdom in order

to facilitate his access to his son, Tariq, was in breach of

Articles 8 and 13 (Art. 8, 13) of the Convention.

B.   Points at issue

29.  The following are the points at issue in the present application:

-    whether the refusal to allow the applicant to re-enter the United

Kingdom was in violation of his right to respect for family life

ensured by Article 8 (Art. 8) of the Convention;

-    whether the applicant has effective remedies, pursuant to

Article 13 (Art. 13) of the Convention, under English law for his

Article 8 (Art. 8) claim.

C.   As regards Article 8 (Art. 8) of the Convention

30.  The relevant part of Article 8 (Art. 8) of the Convention reads

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."

     a) Interference with a right to respect for family life

31.  The applicant claims to have suffered an interference with his

right to respect for family life in relation to his son, Tariq.  While

he was in England it was recognised by the High Court that the two of

them had a strong loving relationship.  He refers to the fact that the

Prime Minister of the day, Margaret Thatcher, had publicly stressed a

father's special duties towards his child notwithstanding a broken

marriage.  The applicant was aware of his duties and sought to perform

them by providing love and support for his son, but he had been

deterred and subsequently stopped from doing so by the Secretary of

State's decision to refuse him permission to re-enter the United

Kingdom.  This, in his submission, constituted a clear interference

with his right under Article 8 para. 1 (Art. 8-1) of the Convention.

32.  The Government refute the applicant's claim.  They submit that

"family life", within the meaning of Article 8 para. 1 (Art. 8-1) of

the Convention, no longer existed between the applicant and Tariq at

the relevant time, given the custody and limited access arrangements

ordered by the matrimonial courts.  Furthermore, by then the applicant

had established another relationship with a British woman who bore him

a son.  Even if there were "family life" between the applicant and

Tariq, there was no interference, given the possibility open to the

applicant to visit the United Kingdom for up to six months at a time,

to apply to enter as the fiancé of the other British woman or for the

ex-wife and Tariq to visit the applicant in Kuwait.

33.  The Commission refers to the judgment of the European Court of

Human Rights in the Berrehab case in which the Court held that from the

moment of a child's birth "there exists between him and his parents a

bond amounting to 'family life', even if the parents are not living

together.  Subsequent events, of course may break that tie", but that

is a question of fact to be determined in each case (Eur. Court H.R.,

Berrehab judgment of 21 June 1988, Series A no. 138, p. 14, para. 21).

34.  As regards the facts of the present case, the Commission notes

that the applicant had lived with his son for the first 18 months of

the child's life and that he had tried to have regular access to him

despite opposition from his ex-wife.  The matrimonial courts had

recognised the strength of the affection between father and son.  In

these circumstances the Commission concludes that there was "family

life", within the meaning of Article 8 para. 1 (Art. 8-1) of the

Convention, between the applicant and his son at the relevant time.

Thus the refusal to allow the applicant to re-enter the United Kingdom

amounted to an interference with the exercise of the right to respect

for family life and falls to be considered under the second paragraph

of Article 8 (Art. 8-2).

     b) In accordance with the law

35.  It is not disputed between the parties that the interference with

the applicant's right to respect for family life was in accordance with

the law, namely the Immigration Act 1971 and the Statement of Changes

in Immigration Rules HC 169 as amended (para. 26 above).

     c) Legitimate aim

36.  It is also not contested by the applicant that the Secretary of

State's decision pursued the legitimate aim of the prevention of

disorder, the effective enforcement of immigration policies under

domestic law falling within this notion.  In this connection the

Commission has constantly emphasised the close connection between the

enforcement of immigration controls and considerations of public order

(cf. eg No. 8245/78, Dec. 6.5.81, D.R. 24 p. 98, and No. 9285/81,

Dec. 6.7.82, D.R. 29 p. 205).

37.  During the proceedings before the Commission in this case,

reference was also made to the protection of the interests of the

economic well-being of the country in the light of the applicant's

unemployment and dependency on State welfare benefits.  The Government

submit that this element of the case is of relevance but not of

overriding importence.  The Commission would agree with the Government.

38.  Accordingly the Commission concludes that the Secretary of

State's refusal to allow the applicant to re-enter the United Kingdom

pursued the legitimate aim of preventing disorder and, subsidiarily,

of protecting the economic interests of the country.

     d) Necessary in a democratic society

39.  The key issue under Article 8 (Art. 8) of the Convention in the

present case is whether it was necessary in the circumstances to refuse

the applicant's re-entry into the United Kingdom.

40.  The applicant claims that the refusal was neither necessary nor

proportionate to the aims described above.  He submits that to have

allowed him to remain to facilitate continued access to his son would

not have led to disorder.  He emphasises that he was not an alien

seeking admission to the United Kingdom for the first time; he was a

person who had lived lawfully there for many years, studying, working

and sustaining a long relationship with the person who later became his

wife and bore him Tariq.  On separation from her the applicant

scrupulously nurtured his relationship with his child.  Thus the

breakdown of his marriage, his relationship with another British woman,

his immigration history and criminal conviction were irrelevant to the

fact that he had a strong loving relationship with his son.  It is the

quality of that relationship which is the determining factor, not the

quantity of access which was restricted by the domestic courts because

of his pending removal from the United Kingdom.  The courts' welfare

reports recognised that it would have been beneficial for the child to

have had continued access to his father in more normal circumstances.

He considers that the possibility of entering the United Kingdom as a

visitor is impractical for financial reasons and because of the

unlikelihood of being granted such leave by the immigration

authorities.  (He also claims to be experiencing difficulties in Kuwait

renewing his passport and, therefore, of being able to travel.)  Given

the acrimony between him and his ex-wife, she would probably not bring

Tariq to visit the applicant in Kuwait, even if they could afford to.

He contends that the circumstances of his application are comparable

to that of Mr. Berrehab in whose case both the Commission and Court

found a breach of Article 8 (Art. 8) of the Convention (loc. cit.

p. 16 para. 29).

41.  The Government submit, having regard to their margin of

appreciation in the field of immigration policy, that any interference

with the applicant's right to respect for family life was necessary and

proportionate to a pressing social need, namely, the maintenance of

effective immigration controls.  Such controls benefit settled

immigrants as well as the indigenous population and secure good

relations between the different communities living in the United

Kingdom.  As regards the specific facts of the present case, the

Government refer to the allegations of the applicant's wife about the

breakdown of the marriage (allegations denied by the applicant), the

applicant's relationship with another British woman and child, the

short time the applicant lived with his son, the limited access

arrangements after the divorce, an unimpressive immigration history

(failed examinations, unemployment), his criminal conviction,  his

failure to keep in touch with his son since returning to Kuwait,

(although he has kept in touch with the second British woman), and the

possibility for him to return to the United Kingdom as a visitor

without the need to obtain prior entry clearance.  They contend that

the circumstances of the applicant's case cannot be favourably compared

with those of Mr. Berrehab.

42.  The Commission considers that Article 8 (Art. 8) does not impose

a general obligation on States to allow aliens to remain on their

territory for the purpose of enjoying access to children of a broken

marriage.  Whether a refusal to allow an alien to re-enter or remain

in a particular country for this purpose is necessary will depend on

the facts of the individual case.  The Commission refers to the

Berrehab case, which both parties have relied on, and which concerned

the expulsion of a Moroccan.  He had lived and worked without reproach

since 1977 in the Netherlands and had married a Dutch citizen who bore

him a daughter, Rebecca.  The marriage broke down and he was expelled

from the Netherlands in 1983 when his daughter was nearly four years

old.  Until then he had maintained good relations with his ex-wife,

held joint guardianship of the child, saw his daughter four times a

week, for several hours at a time, and contributed to her maintenance

and education.  Contact was sustained after the expulsion.  (He

subsequently remarried his ex-wife and returned to the Netherlands on

that basis in 1985.)  The Court held as follows:

     "28.  In determining whether an interference was 'necessary in

     a democratic society', the Court makes allowance for the margin

     of appreciation that is left to the Contracting States ...

     In this connection, it accepts that the Convention does not in

     principle prohibit the Contracting States from regulating the

     entry and length of stay of aliens.  According to the Court's

     established case-law, ... however, 'necessity' implies that the

     interference corresponds to a pressing social need and, in

     particular, that it is proportionate to the legitimate aim

     pursued.

     29.  Having to ascertain whether this latter condition was

     satisfied in the instance case, the Court observes, firstly, that

     its function is not to pass judgment on the Netherlands'

     immigration and residence policy as such.  It has only to examine

     the interferences complained of, and it must do this not solely

     from the point of view of immigration and residence, but also

     with regard to the applicants' mutual interest in continuing

     their relations.  As the Netherlands Court of Cassation also

     noted ... the legitimate aim pursued has to be weighed against

     the seriousness of the interference with the applicants' right

     to respect for their family life.

     As to the aim pursued, it must be emphasised that the instant

     case did not concern an alien seeking admission to the

     Netherlands for the first time but a person who had already

     lawfully lived there for several years, who had a home and a job

     there, and against whom the Government did not claim to have any

     complaint.  Furthermore, Mr. Berrehab already had real family

     ties there - he had married a Dutch woman, and a child had been

     born of the marriage.

     As to the extent of the interference, it is to be noted that

     there had been very close ties between Mr. Berrehab and his

     daughter for several years ... and that the refusal of an

     independent residence permit and the ensuing expulsion threatened

     to break those ties.  That effect of the interferences in issue

     was the more serious as Rebecca needed to remain in contact with

     her father, seeing especially that she was very young.

     Having regard to these particular circumstances, the Court

     considers that a proper balance was not achieved between the

     interests involved and that there was therefore a disproportion

     between the means employed and the legitimate aim pursued.  That

     being so, the Court cannot consider the disputed measures as

     being necessary in a democratic society.  It thus concludes that

     there was a violation of Article 8 (Art. 8)."

43.  Taking into account the Government's margin of appreciation in

this field, the Commission considers that the facts of the present case

do not compare favourably with those of Mr. Berrehab.  The Commission

finds that the applicant had a weaker relationship with his son Tariq

than Mr. Berrehab had with his daughter, Rebecca, because of the

applicant's preoccupation with the second British woman.  This is

reflected in the fact that the applicant has not kept in touch with

Tariq but has maintained contact with this lady.  The Commission notes

that the applicant was unemployed, reliant on state benefits and was

unable to make any contribution to his son's maintenance and education.

It also notes his minor criminal conviction.  Mr. Berrehab, in

contrast, was employed, paid maintenance for his daughter, contributed

to her education and his conduct was irreproachable.  The applicant did

not have custody of Tariq and was awarded limited access of a visit per

week, whereas Mr. Berrehab had joint guardianship of Rebecca with his

wife and he saw her four times a week.  In these circumstances the

Commission is satisfied that the Secretary of State's decision refusing

the applicant re-entry into the United Kingdom was not disproportionate

to the legitimate aims of preventing disorder, through the enforcement

of immigration controls, and the protection of the economic interests

of the country.  In the Commission's opinion, this decision can

therefore be considered as necessary under Article 8 para. 2 (Art. 8-2)

of the Convention.

     Conclusion

44.  The Commission concludes, by a unanimous vote, that there has

been no violation of Article 8 (Art. 8) of the Convention.

D.   As regards Article 13 (Art. 13) of the Convention

45.  Article 13 (Art. 13) of the Convention provides as follows:

     "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."

46.  The applicant complains that he had no effective domestic remedy,

contrary to Article 13 (Art. 13) of the Convention, to test his

substantive Article 8 (Art. 8) claim.  He submits that his case fell

outside the Immigration Rules and his immigration status was a matter

for the pure discretion of the Secretary of State.  A refusal by the

Secretary of State to exercise that discretion in the applicant's

favour attached no right of appeal and no possibility of judicial

review.

47.  The Government contend that the applicant has no arguable claim

under Article 8 (Art. 8) of the Convention which would require an

effective domestic remedy.  Even if the applicant's Article 8 (Art. 8)

complaint were arguable, they submit that the applicant had effective

domestic remedies by way of judicial review before the High Court, or

an appeal to an Adjudicator, who could make a recommendation.

48.  The Commission refers to the constant case-law of the European

Court of Human Rights that "Article 13 (Art. 13) of the Convention

cannot reasonably be interpreted so as to require a remedy in domestic

law of any supposed grievance under the Convention that an individual

may have, no matter how unmeritorious his complaint may be: the

grievance must be an arguable one in terms of the Convention"

(Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A

no. 131, p. 24, para. 52).  In view of the Commission's considerations

regarding the applicant's complaint under Article 8 (Art. 8) of the

Convention (paras. 30-44  above), that complaint cannot be regarded as

unarguable on its merits.  The Commission must therefore proceed to

examine whether the applicant had at his disposal effective domestic

remedies within the meaning of Article 13 (Art. 13) of the Convention.

49.  The Commission notes that the Immigration Act 1971 and the

Statement of Changes in Immigration Rules HC 169, as amended, make no

provision for entry to be granted to an alien after divorce wishing to

exercise effective access to his child who is entitled to live in the

United Kingdom.  Only a request to the Secretary of State for

compassionate leave to re-enter outside the Immigration Rules could be

made.  This the applicant tried and failed.  The Government suggest

that the applicant could have appealed from outside the United Kingdom

to an Adjudicator who could have made a recommendation that the

Secretary of State exercise his discretion in the applicant's favour,

outside the Immigration Rules, and that such a recommendation would

receive serious consideration from the Secretary of State who might

follow it.  However the Commission observes that the role of the

immigration appellate authorities is to ensure observance of the

Immigration Rules and that such a recommendation would be a matter of

discretion for the Adjudicator.  It considers that the possible

exercise of an Adjudicator's discretion, to be followed by the possible

exercise of the Secretary of State's discretion, does not offer

sufficient guarantees of efficacy which might satisfy the requirements

of Article 13 (Art. 13) of the Convention.

50.  The Government also suggest that the applicant could have sought

judicial review of the Secretary of State's refusal to exercise his

discretion outside the Immigration Rules in the applicant's favour.

However, the Government have not been able to indicate any domestic

legal precedents showing that such a remedy against the exercise of a

Minister's discretion, which is based on prerogative rather than

statute, would have had any prospect of success.  In the circumstances

the Commission is not persuaded that the immigration appellate

authorities or the High Court with judicial review could provide,

either individually or as an aggregate, a remedy satisfying Article 13

(Art. 13) of the Convention.

     Conclusion

51.  The Commission concludes, by a unanimous vote, that there has

been a violation of Article 13 (Art. 13) of the Convention in that the

applicant did not have any effective domestic remedy available to him

in respect of his claim under Article 8 (Art. 8) of the Convention.

E.   Recapitulation

52.  The Commission concludes, by a unanimous vote, that there has

been no violation of Article 8 (Art. 8) of the Convention (para. 44

above).

53.  The Commission concludes, by a unanimous vote, that there has

been a violation of Article 13 (Art. 13) of the Convention in that the

applicant did not have any effective domestic remedy available to him

in respect of his claim under Article 8 (Art. 8) of the Convention

(para. 51 above).

Secretary to the Commission            President of the Commission

     (H.C. KRÜGER)                           (C.A. NØRGAARD)

                          APPENDIX I

                    HISTORY OF PROCEEDINGS

Date                          Item

_________________________________________________________________

07.02.89                      Introduction of application

28.03.89                      Registration of application

Examination of Admissibility

06.07.89                      Commission's decision to give

                              notice of application to respondent

                              Government and to invite parties to

                              submit written observations on

                              admissibility and merits

20.12.89                      Government's observations

06.03.90                      Applicant's observations

07.09.90                      Commission's decision to hold a

                              hearing

08.11.90                      Hearing on admissibility and merits,

                              the parties being represented as

                              follows:

                              Government :

                              Mr. N. Parker, Agent

                              Mr. J. Eadie, Counsel

                              Mr. S. Bramley, Home Office, Adviser

                              Mr. C. Miller, Home Office, Adviser

                              Applicant :

                              Mr. P. Simm, Solicitor

                              Ms. S. Lewis Anthony, Inter Rights,

                                                  Adviser

                              Ms. M. O'Reilly, Adviser

08.11.90                      Commission's decision to declare

                              application admissible

Examination of the Merits

14.12.90                      Parties invited to submit whatever

                              further information or observations

                              they wished

02.03.91                      Consideration of state of proceedings

06.07.91                      Consideration of state of proceedings

07.12.91                      Consideration of state of proceedings

04.04.92                      Consideration of state of proceedings

30.06.92                      Commission's deliberations on merits,

                              and on text of its Article 31 Report.

                              Final votes taken.  Adoption of Report