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AS TO THE ADMISSIBILITY OF

Application No. 37003/97

by Soomattee SCHNEIDER

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 15 January 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 June 1997 by

Soomattee SCHNEIDER against the United Kingdom and registered on

23 July 1997 under file No. 37003/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of Mauritius and was born in 1956.

She is currently resident in London. She is represented before the

Commission by Mr. B. Stuart, a solicitor practising in Essex. The

facts of the application, as submitted by the applicant's

representative, may be summarised as follows.

A. The particular circumstances of the case

The applicant entered the United Kingdom as a visitor on

9 February 1992 with a six month visa. In May 1992 she met Christopher

Schneider, a British citizen, through a marriage bureau and they

married on 22 July 1992. Six days after the marriage she applied for

residence, on the ground of that marriage. On 22 June 1993 the

applicant was granted permission to reside in the United Kingdom for

12 months, in view of her marriage. The applicant's husband was

diagnosed with cancer soon after their marriage. The applicant lived

with her husband throughout their marriage and visited him daily during

his frequent stays in hospital. During this period the applicant

became close to her husband's family, in particular to her mother-in-

law. On 14 February 1994 the applicant's husband died.

On 18 May 1994 the applicant applied for indefinite leave to

remain on the basis of the marriage. On 13 December 1994 that

application was refused by the Secretary of State. The Secretary of

State's reasons for refusal were set out in the explanatory note to the

decision as follows:

"The Secretary of State then gave consideration to the

application for indefinite leave to remain as the wife of Mr.

Schneider. However, Mr. Schneider had died one month prior to

the application being made and consequently the Secretary of

State was not satisfied that the marriage had not been

terminated.

The Secretary of State also considered whether to exercise his

discretion in the appellant's favour, but in view of the fact

that the appellant had spent 36 years in Mauritius and only

3 years in the United Kingdom, and furthermore had substantial

ties with Mauritius, the Secretary of state could find no

circumstances of a sufficiently exceptional or compassionate

nature to warrant exercising that discretion. The Secretary of

State also considered whether to exercise his discretion

exceptionally outside the Immigration Rules but was not prepared

to do so. The Secretary of State therefore refused the

application on 13 December 1994 under paragraph 132."

The applicant appealed against the decision of the Secretary of

State to an Adjudicator. There was an oral hearing before the

Adjudicator, Mr. Watkins, on 19 December 1995, the applicant being

represented by counsel. Both the applicant and her mother-in-law gave

evidence at this hearing.

The adjudicator held in a written determination dated 15 January

1996, that in law the appeal must fail under paragraph 132. However

he made a recommendation in the following terms:

"On the basis of what I heard and the letters from other members

of the family I recommend to the Secretary of State that in the

particular circumstances of this sad case, he should consider

granting the appellant exceptional leave to remain so that she

can tend her late husband's grave and remain part of his family."

In February 1996 the applicant was informed by letter that the

Secretary of State refused the recommendation, on the basis that there

were insufficient exceptional compassionate grounds to reverse his

previous decision. Furthermore the Secretary of State was not prepared

to exercise his discretion by granting a limited leave to remain

outside the Immigration Rules.

On 4 April 1996 the applicant's representatives wrote to the

Secretary of State, requesting a reconsideration of the applicant's

request. This request included the statements of several members of

the applicant's husband's family, all of whom strongly supported her

application, stating that she had shown great devotion to her deceased

husband and was considered part of the family. On 7 May 1996 the

Secretary of State refused to alter his decision. In his letter of

refusal to the applicant's representatives the Secretary of State made

the following comments:

"... in the light of your representations and others received on

Mrs Schneider's behalf we have again reviewed the case on a

discretionary basis outside the normal requirements of the

Immigration Rules. However, whilst I sympathise with

Mrs Schneider's situation and can understand that she has grown

close to her husband's family I am still not persuaded that these

constitute sufficiently compelling or compassionate factors to

warrant reversing the original decision to refuse Mrs Schneider's

application for settlement. In reaching this decision I have

taken account of the relatively short time that she has spent

here and, although she has her husband's family here, she had no

close relatives of her own or property in the United Kingdom.

Furthermore, she has her own parents and eleven brothers and

sisters in Mauritius to whom she could turn to for support at

this sad time."

The applicant applied for judicial review of the Secretary of

State's refusal to accede to the recommendation. An oral hearing was

held before Mr. Justice Dyson of the High Court on 19 December 1996,

the applicant being represented by Counsel. Leave to apply for judicial

review was refused.

B. The relevant domestic law

The Immigration Rules state in so far as relevant, as follows:

"132. A person who was admitted for a limited period or

given an extension of stay, as the spouse of a person settled

here, may have the time limit on their stay removed at the end

of that period if the Secretary of State is satisfied that the

marriage has not been terminated and that each of the parties has

the intention of living permanently with the other as his or her

spouse."

COMPLAINTS

The applicant complains that to oblige her to leave the United

Kingdom, would constitute a violation of Articles 3 and 8 of the

Convention.

THE LAW

1. The applicant complains that refusal to allow her to stay in the

United Kingdom would amount to inhuman or degrading treatment.

Article 3 (Art. 3) of the Convention provides as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission recalls that:

"ill-treatment must attain a minimum level of severity if it is

to fall within the scope of Article 3 (Art. 3). The assessment of this

minimum is, in the nature of things, relative: it depends on all the

circumstances of the case, such as the duration of the treatment, its

physical or mental effects and in some cases, the sex, age and state

of health of the victim etc. " (Eur. Court HR, Ireland v. United

Kingdom judgment of 18 January 1978, Series A no. 25 p. 65, para. 162).

The Commission considers that in the circumstances of the present

case the effect on the applicant of the refusal to allow her to

continue to reside in the United Kingdom, does not attain the level of

severity required in order to constitute a breach of Article 3

(Art. 3) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains that to separate her from her deceased

husband's family, constitutes an interference with her family life in

breach of Article 8 (Art. 8) of the Convention.

Article 8 (Art. 8) of the Convention provides as follows:

"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 Commission recalls that Article 8 (Art. 8) of the Convention

does not in itself guarantee a right to enter or remain in a particular

country, although issues under this Article may arise where a person

is excluded or removed from a country where his close relatives reside

or have the right to reside. 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. Whether removal or

exclusion of a family member from a Contracting State is compatible

with the requirements of Article 8 (Art. 8) will depend on a number of

factors - the extent to which family life is effectively ruptured,

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 or considerations of public order

weighing in favour of exclusion (see Sorabjee v. the United Kingdom,

No. 23938/94, Dec. 23.10.95).

The Commission notes that the applicant's case was considered by

the Secretary of State on more than one occasion, and by the High Court

in an application to seek judicial review of the Secretary of State's

decision. The Commission notes the relatively short time that the

applicant had spent in the United Kingdom (since 1992); the fact that,

apart from her deceased husband's family, she had no close relatives

of her own in the United Kingdom and that she had her own parents and

eleven brothers and sisters in Mauritius. The Commission further notes

that these factors were considered by the Secretary of State who also

acknowledged that the applicant had grown close to her deceased

husband's family, prior to his refusal to exercise his discretion to

grant permission to stay.

The Commission considers that the facts of the case do not

disclose a lack of respect for the applicant's respect for her family

life as guaranteed by Article 8 (Art. 8) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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SCHNEIDER v. THE UNITED KINGDOM

SCHNEIDER v. THE UNITED KINGDOM

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