Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32789/96

by Harpal Singh PHULL

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 11 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 22 January 1996

by Harpal Singh PHULL against the United Kingdom and registered on

27 August 1996 under file No. 32789/96;

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 British citizen born in 1965 in Tanzania and

resident in Greenford. He complains on behalf of himself and his two

sons, Dahramjit Singh born in 1994 and Ramandeep Singh born in 1995,

both British citizens. He is represented before the Commission by

Mr. G. Singh, a solicitor practising in London.

The facts, as submitted by applicant, may be summarised as

follows.

The applicant has lived in the United Kingdom since he was six

months old.

The applicant's wife, Kulwinder Kaur Phull, an Indian citizen

born in India in 1967, arrived in the United Kingdom on 14 May 1985 to

marry S. by way of an arranged marriage. A civil and religious ceremony

took place. She had been given leave to enter for six months.

The marriage broke down and by the time of Kulwinder Kaur Phull's

interview with immigration officers after the expiry of the six month

visa, she was living apart from S. On 20 December 1989, a notice of

intention to deport was served on her. Her appeal was dismissed

following a hearing and on 15 May 1991 the Secretary of State signed

the deportation order. On 6 February 1992, Kulwinder Kaur Phull was

granted leave to apply for judicial review of a decision of the

Secretary of State of 15 October 1991 to maintain the deportation. The

proceedings were discontinued in or about September 1993 on the basis

of advice from counsel.

On 6 December 1992, Kulwinder Kaur Phull obtained a divorce

from S. On 21 April 1993 she married the applicant. On 23 June 1993 she

applied for leave to remain on the basis of her marriage. After

enquiries and an interview, the application was refused on

28 October 1993.

On 15 March 1994, Dahramjit was born to the applicant and

Kulwinder Kaur Phull. On 25 August 1994, the applicant applied for the

deportation order to be revoked on the basis of his marriage and the

birth of a child. On 7 September 1994, the Secretary of State refused

the application. On 8 September, the applicant applied for judicial

review of the decision. The application was rejected on 2 November 1994

by the High Court. Leave to appeal to the Court of Appeal was granted

on 15 June 1995, principally on points of European Union law, but the

appeal was finally rejected on 17 August 1995. The House of Lords

refused leave to appeal on 22 November 1995.

On 11 December 1996, a third child was born to

Kulwinder Kaur Phull and the applicant.

The applicant has provided a psychiatric report concerning his

wife, dated 3 June 1997, in which it is stated that she shows very

strong suicidal intentions and has stated that she will definitely kill

herself if she is deported, since life would not be worth living

without her children whom, as a good mother, she would leave behind her

in the United Kingdom where they will be better off. She is described

as suffering from a depressive illness for which she is provided with

medication and supportive counselling.

COMPLAINTS

The applicant invokes Article 8 of the Convention in respect of

the decision to deport his wife on behalf of himself and his children.

He points out that he and their children are British citizens who have

lived all their lives in the United Kingdom (save six months in his

case),that they have no links with India and that he would have little

prospect of obtaining employment in India to support the family,

whereas he is in employment in the United Kingdom. He submits that he

has no intention of going to India and that the removal of his wife

will separate the family, and deprive the children of the psychological

and emotional support of their mother. It is also alleged that the

deportation flagrantly flouts the Maastricht treaty.

The applicant, in a letter submitted on 21 May 1996, has also

invoked Article 3 in respect of the inhuman treatment disclosed by the

stress and depression which Kulwinder Kaur Phull is suffering and the

potential impact on, and irreparable damage to, the children of her

removal.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention of the threatened deportation of his wife to India.

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

"1. Everyone has the right to respect for his private and

family life ...

2. There shall be no interference by a public authority

with the exercise of this right except such as 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 a State has the right to control the

entry and residence of non-nationals in its territory. In this regard

the Commission recalls the close connection between immigration control

and questions pertaining to public order and the wide margin of

appreciation which States enjoy in this regard (see Eur. Court HR,

Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of

28 May 1985, Series A no. 94, pp. 33-34, para. 67; and Beldjoudi v.

France judgment of 26 March 1992, Series A no. 234, p. 27, para. 74).

The Commission also recalls that whilst a right to enter or

remain in a particular country is not as such guaranteed by Article 8

(Art. 8) of the Convention (see inter alia No. 9213/80, Dec. 5.5.81,

D.R. 24, p. 239; and No. 25439/94, Dec. 5.4.95, D.R. 81-B, p. 142), the

exclusion or removal of a person from a country where his close

relatives reside or have the right to reside may raise issues under

Article 8 (Art. 8) (see inter alia No. 9088/80, Dec. 6.3.82, D.R. 28,

p. 160; No. 9285/81, Dec. 6.7.82, D.R. 29, p. 205; No. 23938/94, Dec.

23.10.95, unpublished; No. 24381/94, Dec. 31.8.94, unpublished; and No.

25073/94, Dec. 28.2.96, unpublished).

The Commission recalls that the duty imposed by Article 8

(Art. 8) cannot be considered as extending to a general obligation on

the part of a Contracting State to respect the choice by married

couples of the country of their matrimonial residence and to accept the

non-national spouses for settlement in that country (see Eur. Court HR,

Abdulaziz, Cabales and Balkandali, loc. cit., p. 34, para. 68). The

Commission also recalls that whilst the extent of a State's obligations

to admit to its territory relatives of settled immigrants will vary

according to the particular circumstances of the persons involved, an

essential issue in any such case is whether there are insurmountable

obstacles to the spouse having a right of residence following the

spouse affected by the decision or order, such as difficulties of

language, or where there is little or no prospect that the former will

be able to adapt or integrate within the culture or society of the

latter's country (see: Eur. Court HR, Beldjoudi v. France, loc. cit,

p. 28, paras. 77-78; No. 9088/80, loc. cit.; No. 9285/81, loc. cit.;

No. 16152/90, Dec. 13.10.92, unpublished; and No. 24381/94, loc. cit.).

An important though not decisive consideration will also be

whether the marriage, albeit manifestly not one of convenience, was

contracted at a time when the parties were aware that the immigration

status of one of them was such that the persistence of the marriage

within the host state would from the outset be precarious. The

Commission considers that where this is a relevant consideration it is

likely to be only in the more exceptional circumstances that the

removal of the non-national spouse will constitute a violation of

Article 8 (Art. 8) (cf Eur. Court HR, Abdulaziz, Cabales and

Balkandali, loc. cit., p. 34, para. 68; No. 9285/81, loc. cit.; No.

24381/94, loc. cit.; No. 25073/94, loc. cit.).

In the present case, the Commission recalls that the applicant

and his children do not themselves have any links with India and that

the applicant has employment in the United Kingdom, which he claims

would be difficult to find in India. It notes the assertion that he and

the children will remain in the United Kingdom, which will result in

the separation of the family and threatens to exacerbate stress and

anxiety experienced by the applicant's wife Kulwinder Kaur Phull.

Nonetheless, the Commission observes that Kulwinder Kaur Phull entered

the United Kingdom on limited leave and that on expiry of that leave

the decision to deport her was taken. This position was known to both

her and the applicant at the time of their marriage and they must be

taken as being aware that they had no expectation that Kulwinder Kaur

Phull would be granted leave to remain. This was also the situation

when the children of the applicant and his wife were born.

The Commission recognises the difficulties which now face the

applicant and his family. However notwithstanding the obstacles which

the family would face if they accompanied Kulwinder Kaur Phull to India

the Commission is not persuaded that these are of such a nature or

degree as to render them insurmountable. In particular, the children

are of a young and adaptable age.

The Commission does not therefore find that in this regard there

are any elements concerning respect for family life which outweigh

valid considerations relating to the proper enforcement of immigration

controls in the present case. Accordingly the threatened removal of

Kulwinder Kaur Phull does not disclose a lack of respect for the

applicant or his children's rights to respect for family life

guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention. It

follows, therefore, that this part of the application must be rejected

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant has also complained that this situation discloses

inhuman treatment of himself, Kulwinder Kaur Phull and their children,

invoking Article 3 (Art. 3) which provides:

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

treatment or punishment."

The case-law of the Convention organs establishes that ill-

treatment must attain a minimum level of severity if it is to fall

within the scope of Article 3 (Art. 3) of the Convention. Further, the

Court has held that the suffering occasioned must attain a certain

level before treatment can be classified as inhuman. The assessment of

that minimum is relative and depends on all the circumstances of the

case, such as the duration of the treatment and its physical or mental

effects (see eg. Eur. Court HR, Ireland v. the United Kingdom judgment

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

The applicant refers, inter alia, to the stress caused to his

wife and the threatened damage to their children if separated from

their mother. The Commission recalls however that it has found above

that the deportation is a measure justified for the enforcement of

immigration controls. Having regard to the knowledge of both the

applicant and Kulwinder Kaur Phull of the latter's precarious

immigration status, the difficult dilemma in which the family is now

situated derives largely from their decision to marry and found a

family in face of a pending deportation order.

In these circumstances, the Commission finds that the hardship

which is associated with the deportation cannot be considered as

disclosing treatment contrary to Article 3 (Art. 3) of the Convention.

It follows that these complaints must be rejected as 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. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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PHULL v. THE UNITED KINGDOM

PHULL v. THE UNITED KINGDOM

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