THE FACTS

The facts presented by the parties and apparently not in dispute

between them may be summarised as follows:

The applicant is a Greek national, born in Athens in 1938 and at

present resident in London. He is married and has one daughter, who was

born in April 1965. His wife, who is English, lives with the daughter

in Sunderland in the north of England.

The applicant and his wife were married in Sierra Leone in 1964. They

came to the United Kingdom in October 1966, when the applicant was

admitted for an initial period of twelve months. In August 1967 they

left England to go and live in Greece.

The applicant was apparently tricked into allowing his wife to bring

their daughter into the United Kingdom from Greece in August 1969 and

since then the daughter has been living in England against his will.

In order to support his child financially and morally the applicant has

been forced to go and live in the United Kingdom as well. In September

1969 he was admitted for three months as a visitor. He returned again

to the United Kingdom in February 1970 and was once more admitted for

a period of three months, during which time he applied to the Home

Office for an extension of his permitted stay. After obtaining

employment approved by the Department of Employment his leave to stay

was extended for twelve months until .. May 1971. In July 1971 this

permission was extended for a further year, i.e. till .. May 1972.

From the time that the applicant followed his wife and daughter to

England in September 1969 he had been living separate from them though

contributing regularly to their maintenance. On .. October 1969 the

child was made a ward of court, care and control being given to the

mother. On .. January 1972, the High Court confirmed that the child

should remain a ward of court and under her mother's care and control;

at the same time her father was granted access to her for one weekend

per month. An appeal lodged by the applicant against this order was

dismissed.

In May 1972 the applicant applied for permanent residence in the United

Kingdom. No decision had been taken on this application when, in July

1972, he temporarily left the country. He returned on .. August 1972

and was then admitted for one month only. He subsequently left the

United Kingdom again for a short period, returning on .. August 1972,

when he was given leave to stay for three months.

On .. January 1973 the Home Office informed the applicant that as he

was not living with his family he could not claim to remain in the

United Kingdom as a "foreign husband", i.e. merely on the ground

that he was married to a British wife, and his application for

permanent residence was refused. He was merely given an extension of

stay until .. May 1973. On .. January 1973 the applicant was informed

of his right of appeal to an adjudicator against this decision of the

Home Office. No such appeal was lodged by the applicant, apparently

because he did not consider that the appeal was relevant to his case.

Complaint

The applicant complains of the difficulties he has had in obtaining

permission to stay in the United Kingdom. It appears from a letter

dated 4 September 1972 to the Commission that he is concerned that he

might lose the right to live in England and thereby be permanently

deprived of access to his child.

PROCEEDINGS BEFORE THE COMMISSION

By two partial decisions, of 14 (1) and 20 December 1972 (2), the

Commission declared other parts of the present application

inadmissible, but decided, in accordance with Rule 45, 3 b) of the

Commission's Rules of Procedure, to give notice of the application to

the Government of the United Kingdom and to invite it to submit its

observations in writing on the question of admissibility of the

application so far as it concerns the above complaint, which the

Commission considered might give rise to a question under Article 8 of

the Convention.

--------------------------

(1)  see page 66.

(2)  see footnote page 70.

--------------------------

On 27 February 1973 the Government submitted its observations on

admissibility. The applicant's reply was submitted on 18 March 1973 and

he has subsequently written three further letters to the Commission,

dated 1 June, 14 June and 16 July 1973.

SUBMISSIONS OF THE PARTIES ON ADMISSIBILITY

1.   United Kingdom law and practice

The respondent Government first makes submissions on relevant aspects

of the United Kingdom's law and practice concerning immigration. It

states that an alien who has married a British wife does not as such

acquire a right to live in the United Kingdom. However, in 1966 when

the applicant came to the United Kingdom it was the practice that an

alien married to a British woman could be admitted to join her in the

United Kingdom if she had substantial residential and family

connections there and provided that he was not personally undesirable.

If an alien satisfied the immigration officer that he complied with

this test he would be admitted for an initial period of twelve months

without restrictions on his employment. At the end of the twelve months

the time limit would normally be cancelled providing the marriage

subsisted and he was living with and supporting his wife and family.

If these conditions were satisfied, the alien fell within the category

known as the "foreign husband" category in the policy controlling

immigration.

The Government continues that under another head of United Kingdom

immigration policy, when an alien has remained in the United Kingdom

for four years in approved employment, and had not spent substantial

periods outside the United Kingdom, consideration may be given to

removing both the restrictions on his stay and on his employment,

subject to the consideration of all the relevant facts such as whether

in the light of his character, conduct or associations it is

undesirable to permit him to stay. This category is recognised under

the present, as well as previous, immigration rules, and extracts from

the 1970 Rules and the 1973 Rules are attached as an annex to the

submissions.

The Government also points out that a person who has a limited leave

to enter or remain in the United Kingdom has a legal right of appeal

to an adjudicator against any variation of the leave or against any

refusal to vary it. An adjudicator may allow the appeal if the decision

or action is not in accordance with the law or applicable immigration

rules, or if, where a decision involves the discretion of the Secretary

of State or one of his officers, the adjudicator considers that

discretion should have been exercised differently.

2.   Relevant facts

Commenting on the facts of the case relevant to admissibility, the

respondent Government states that after the applicant's entry into the

United Kingdom in February 1970, and following his application to the

Home Office for an extension of his permitted stay, he was told that

his marriage gave him no claim to remain as a "foreign husband",

because he was living apart from his wife. In March 1971 he was

informed that if he remained in the United Kingdom for four years and

did not spend substantial periods of time outside the country,

consideration would be given to cancelling the conditions under which

he was allowed to stay, in accordance with the policy set out above.

The applicant was reminded of this policy in the letter from the Home

Office mentioned above of .. January 1973.

Referring to the time in May 1972 when the applicant applied for

permanent residence in the United Kingdom, the respondent Government

states that enquiries were then made about the subsistence of the

marriage. These revealed that he and his wife were living apart and

there was little hope of a reconciliation. In the meantime the

applicant left the United Kingdom in July 1972. When he returned on ..

August 1972, the applicant, in answer to a question from an immigration

officer about his proposed length of stay, informed the officer that

depended on his marital relations and that he was considering a

divorce. He was then admitted for one month and advised to contact the

Home Office immediately regarding an extension of his stay.

In reply, the applicant refers first to the Government's statement

above that in 1970 he was told he had no claim to remain in the United

Kingdom as a "foreign husband" and makes the following observation:

"However at that time the Home Office did not have any evidence that

I was not living constantly with my wife. I was never informed that I

might have fallen into another category, on the contrary many a time

I tried for a personal interview with a senior Home Office official but

was never granted access to one."

The applicant denies having said to an immigration officer on .. August

1971 that he was considering a divorce. Under no circumstances would

he consider a divorce before his daughter's security is ensured or

before she reaches the age of 16. The applicant continues that far from

being advised by the immigration officers to contact the Home Office

he had the greatest difficulty in entering the United Kingdom. He was

able to do so only after satisfying them that in a few hours time he

was due to attend a court hearing concerning his daughter.

3.   Questions of admissibility

The respondent Government contends that the applicant is not the victim

of a violation of the Convention and that he has not exhausted the

domestic remedies which are available to him.

The respondent Government refers to the constant jurisprudence of the

Commission (and in particular Applications Nos 172/56 I Y.B. page 211

and 1855/63, VIII Y.B. page 200) according to which the right of a

person to enter and take up residence in a country of which he is not

a national is not as such guaranteed by the Convention, although in

certain circumstances the refusal to give persons access to, or allow

them to take up residence in a particular country, might result in the

separation of such persons from the close members of their family which

could raise serious problems under Article 8 of the Convention.

In this case, however, it is submitted, it is clear that at no time up

to the present has the applicant been refused entry into the United

Kingdom. Moreover he has now been given an extension to stay in the

country till .. May 1973 and this may be varied to allow a further

extension. The Government also refers to the provision in the

immigration rules whereby, subject to residence requirements and

general considerations concerning a person's behaviour, an alien who

has been in employment in the United Kingdom for four years may apply

for consideration to be given to cancelling the conditions under which

he is allowed to remain in the country.

The respondent Government therefore submits that the applicant has at

no stage been prevented from exercising his right of access to his

daughter by reason of any action of the Government, since at no time

has he been refused entry. It is the submission of the Government that

as the applicant has at no time suffered an interference with his

rights under Article 8 as a result of its actions the applicant cannot

claim to be a victim of a violation within the meaning of Article 25

(1). Accordingly, the applicant's complaint is incompatible with the

provisions of the Convention or, in the alternative, is manifestly

ill-founded.

Without prejudice to the foregoing submission, the Government submits

that the right of appeal to an adjudicator referred to above, against

a refusal to vary the terms of entry into the United Kingdom,

constitutes a domestic remedy within the meaning of Article 26 of the

Convention which is required to be exhausted. Reference is made again

to Application No. 172/56 I Y.B. page 200 and in particular to pages

217 and 218. It is accordingly submitted that the application should

be rejected under Article 27 (3) of the Convention.

The applicant, in reply, refers to the Government's statement that he

has at no stage been prevented from exercising his right of access to

his daughter by reason of any action of the Government. He comments as

follows:  "(From) February 1970 to the present time I feel that not

only myself but also my daughter, from the financial point of view,

have been victims of indirect threats by way of 'limited time of stay',

'conditions of stay', 'restrictions of employment' which have resulted

in restricted means of supporting ourselves, and for me an

impossibility to see my daughter every month as many a time I cannot

afford the weekend trip from London to Sunderland, which for the said

period and whilst I was working represented the 30 per cent of my

monthly gross pay."

The applicant considers that all domestic remedies have been exhausted.

He makes no further observations on why he did not appeal against the

Home Office decision communicated to him by the letter dated .. January

1973.In the conclusion, the applicant states that it is not by choice that

he remains in the United Kingdom, but because of the decisions forced

upon him by the British authorities. He will only accept that his

daughter and consequently he himself remain there provided that from

the very beginning they enjoy all the rights afforded to the rest of

the United Kingdom population with no restrictions whatsoever.

4.   Supplementary submissions of the applicant

After filing his submissions on admissibility the applicant wrote

further letters to the Commission, dated 1 June, 14 June and 16 July

1973. He also submitted copies of recent correspondence between himself

and the Home Office.

From these letters and documents it appears that the applicant wrote

to the Home Office on .. May 1973 with regard to his residence in the

United Kingdom. He was then apparently given leave to remain in the

country until .. July 1973. After the applicant had written again to

the Home Office, requesting an unconditional and unlimited stay in the

United Kingdom, the Home Office replied on .. June 1973 informing him

that he was still not entitled to foreign husband conditions nor was

he eligible for the removal of the time limit attached to his leave to

enter. He was told that, if he wished his permitted stay in the United

Kingdom to be extended for a further period, he should re-submit his

application with supporting documents including either a letter from

his employer confirming that the employer wished to retain his services

or documentary evidence of his ability to maintain himself without

working. He was warned that otherwise he would be expected to leave the

United Kingdom by .. July 1973. Finally, he was told that if he wished

to exercise his right of appeal against this decision he should notify

the Home Office and the appropriate appeal forms would be sent to him.

The applicant states that he does not accept the conditions contained

in the Home Office letter of .. June and he asks the Commission to

intervene.

THE LAW

The applicant has complained of the difficulties he has had in

obtaining permission to remain in the United Kingdom. It appears that

he is concerned that he may be permanently deprived of access to his

child. The Commission recalls that in its partial decision on

admissibility of 20 December 1972 it considered that this complaint

might give rise to an issue under Article 8 (Art. 8) of the Convention;

this Article secures to everyone the right to respect for his private

and family life.

The Commission notes from the applicant's supplementary submissions

(see page 7 above) that the most recent decision taken by the United

Kingdom authorities affecting his permission to stay in the United

Kingdom is that communicated to by the letter from the Home Office of

.. June 1973. The effect of this decision was that the applicant was

refused permission to stay in the United Kingdom after .. July 1973

unless he satisfied certain conditions. The applicant states that he

does not accept these conditions and asks the Commission to intervene.

The complaint which he has made to the Commission can therefore now be

considered as being directed against the decision of the Home Office.

The respondent Government submitted in its observations of 27 February

1973 that the applicant had at that time never been prevented from

exercising his right of access to his daughter by reason of any action

of the Government, since he had at no time been refused entry into the

United Kingdom. It was therefore submitted that the applicant could not

claim to be a victim of a violation of the Convention within the

meaning of Article 25 (1) (Art. 25-1) with the result that his

complaint was incompatible with the provisions of the Convention or,

in the alternative, manifestly ill-founded. The Government further

submitted that in any event the application should be rejected under

Article 27 (3) (Art. 27-3) of the Convention since the applicant had

failed to appeal to an adjudicator against the Home Office decision of

which he was complaining and had therefore not exhausted the domestic

remedies open to him.

The applicant, on the other hand, has submitted that all domestic

remedies have been exhausted. It appears that he considers that an

appeal to an adjudicator was not relevant to his case.

The Commission observes that there have been developments in this case

since the date on which the respondent Government submitted its

observations on admissibility. At that time the most recent decision

affecting the applicant's stay in the United Kingdom was that of ..

January 1973, by which the applicant was refused permanent residence

but was given permission to remain in the country until .. May 1973.

On the other hand, the decision which the Commission is now concerned

with is, as stated above, that of .. June 1973, refusing the applicant

permission to remain in the United Kingdom after 31 July 1973 unless

he satisfied certain conditions. The Commission does not, however, find

it necessary to request the respondent Government to make further

submissions in the light of these new circumstances, or even to comment

on the recent factual situation as it has been presented by the

applicant, since it is satisfied, for the reasons set out below, that

the application is inadmissible.

The Commission recalls that under Article 26 (Art. 26) of the

Convention it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law. In the present case the applicant failed to appeal

to an adjudicator against the decision communicated to him in the Home

Office letter of .. June 1973 and has therefore not exhausted the

remedies available to him under English law. The Commission observes

that in any event the refusal of the applicant to satisfy the

conditions laid down by the Home Office, which he has not shown to be

unreasonable, could in itself be considered as a failure to exhaust the

remedies open to him. Moreover, an examination of the case as it has

been submitted does not disclose the existence of any special

circumstances which might have absolved the applicant, according to the

generally recognised rules of international law, from exhausting the

domestic remedies at his disposal.

It follows that the applicant has not complied with the condition as

to the exhaustion of domestic remedies and his application must be

rejected under Article 27 (3) (Art. 27-3) of the Convention.

For these reasons, the Commission DECLARES THIS APPLICATION

INADMISSIBLE.