Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32214/96

by E.R.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

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 6 February 1996

by E.R. against the United Kingdom and registered on 10 July 1996 under

file No. 32214/96;

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 1954 and resident in

London. She is represented before the Commission by the AIRE legal

centre in London. The facts as submitted by the applicant may be

summarised as follows.

A. Particular circumstances of the case

The applicant is a senior nurse living and working in London.

She is married to M.R., an Algerian national born in 1958, who has been

refused leave to enter the United Kingdom.

The applicant met M.R. in February 1992, in London. M.R. had

first come to the United Kingdom in 1983. He had studied English and

was granted various extensions of stay until 1 January 1986, although

he subsequently overstayed until 30 October 1987, when he returned to

Algeria. On 25 June 1988 he returned to the United Kingdom, ostensibly

as a visitor for ten days to two weeks and then claimed political

asylum on the grounds that he would have to perform military service

in Algeria. The application was rejected and on 28 June 1988 he was

refused entry and removed to Paris. The appellant returned to the

United Kingdom three weeks later and entered the country illegally from

Holland, by boat. He subsequently studied in Brixton using a false

French identity card in order to obtain reduced fees as a European

Community National. He made one visit to Holland in 1990 again

returning to England illegally by boat, but otherwise remained in the

United Kingdom.

Between February 1992 and May 1992, the applicant became aware

of the fact that M.R. was residing in England without a current visa.

M.R. moved in with the applicant in May 1992, and shortly thereafter

the applicant converted to Islam and the couple were married in a

Muslim wedding ceremony in the United Kingdom. In May 1993 the

applicant and M.R. travelled to Algeria in order to perform a civil

marriage. The applicant was introduced to M.R.'s family. However, the

couple were refused permission by the Algerian authorities to marry,

and the applicant returned after six weeks to the United Kingdom, with

M.R. remaining in Algeria.

On 12 June 1993 an application was made by M.R. for entry

clearance, and on that date the applicant was interviewed as M.R.'s

sponsor. The application was deferred to enable the Entry Clearance

Officer to obtain details of the M.R.'s history from the Home Office.

In August 1993 the applicant visited Algeria for two weeks,

during which time she married M.R. in a civil ceremony on 29 August

1993. Again the applicant returned to England, with M.R. remaining in

Algeria.

The applicant visited Algeria for two weeks in November 1993.

After this date it became increasingly dangerous for foreigners to

visit Algeria due to a fundamentalist campaign of violence against

foreigners. The Foreign and Commonwealth Office advised visitors not

to travel to Algeria and advised British residents in Algeria to leave

the country.

In July 1994 the applicant spent two weeks with M.R. in Morocco.

Apart from these periods the applicant has been separated from her

husband, although they maintain contact through telephone calls.

M.R. was interviewed at the United Kingdom embassy in Algeria on

4 September 1994. At the conclusion of this interview the Entry

Clearance Officer refused the application for Entry Clearance on the

following terms:

"You have applied for a visa with a view to admission to the UK

as the husband of [E.R.], but I am not satisfied that the

marriage was not entered into primarily to obtain admission to

the UK."

The Entry Clearance Officer, amongst his reasons for refusal,

stated that M.R. had a very bad previous immigration history.

A notice of appeal was lodged on 13 September 1993 against the

refusal of the Entry Clearance Officer, this appeal was rejected.

An appeal under the Immigration Act 1971 was made against the

refusal of the visa for M.R.. This appeal was heard in London on

January 1995. In a judgment of 8 March 1995 the adjudicator upheld the

refusal of the Entry Clearance Officer to grant a visa to M.R.. The

adjudicator did however note that the applicant was deprived of the

opportunity of living in Algeria due to the political situation there

and that the applicant's devotion to M.R. was not in doubt. The

adjudicator went on to make a recommendation to the Secretary of State

that M.R. be granted entry clearance to join his wife in the United

Kingdom. M.R. was at this time living in Turkey, in an attempt to

avoid being obliged to carry out his military service in Algeria.

In March and April 1995 the applicant requested that the

recommendation of the adjudicator be implemented. This was refused.

In May 1995 the applicant petitioned for leave to appeal to the

Immigration Tribunal. This was refused on 25 May 1995 on the basis

that the adjudicator's conclusions to uphold the refusal of an entry

visa were fully supported by the evidence and there was no misdirection

in law.

On 10 October 1995 an application for leave to apply for judicial

review the decision of the adjudicator was refused. A renewed

application for leave to apply was refused on 27 March 1996.

B. Relevant domestic law and practice

Entry clearance to enter the United Kingdom as a spouse of a

British citizen is granted or refused in accordance with the provisions

of paragraph 281 of the Immigration Rules HC 395.

Paragraph 281 states, so far as relevant, as follows:

"The requirements to be met by a person seeking leave to

enter the United Kingdom with a view to settlement as the

spouse of a person present and settled in the Untied

Kingdom ... are that:

...

the marriage was not entered into primarily to obtain

admission to the United Kingdom; and

...

each of the parties intends to live permanently with the other

as his or her spouse and the marriage is subsisting;

..."

COMPLAINTS

The applicant alleges violations of Articles 8 and 13 of the

Convention as she claims she was unable to exercise a family life with

her husband. The applicant further claims that the Government made a

determination that the couple could exercise their rights in Algeria.

The applicant alleges that were she to join her husband in Algeria she

would be placed in a dangerous situation, given the known violence

against foreigners in Algeria. The applicant thus complains of a

potential violation of the United Kingdom's positive obligations under

Articles 2 and 3 of the Convention. The applicant also alleges a

violation of Article 13 of the Convention.

THE LAW

1. The applicant complains under Articles 2 and 3 (Art. 2, 3) of the

Convention, that the British Government determined that she could

exercise her family life in Algeria, where the situation is dangerous

for foreigners.

Article 2 (Art. 2) of the Convention provides, so far as

relevant, as follows:

"1. Everyone's right to life shall be protected by law. No one

shall be deprived of his life intentionally save in the execution

of a sentence of a court following his conviction of a crime for

which this penalty is provided by law."

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 notes that the adjudicator of the appeal in

January 1995 found that the applicant was deprived of the opportunity

of living in Algeria due to the political situation there. There is no

evidence that the applicant has at any time been encouraged or forced

to visit Algeria by the Government. On the contrary, it appears that

the applicant has heeded the Government's advice not to visit Algeria

during the current period of violence against foreigners.

In these circumstances the Commission considers that the

applicant's complaint that the Government made a determination that she

could exercise her family rights in Algeria is unsubstantiated.

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 she was unable to exercise a family

life with her husband in violation of Article 8 (Art. 8) of the

Convention.

Article 8 (Art. 8) of the Convention provides, so far as

relevant:

"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."

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 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 consideration of public order weighing in favour

of exclusion (see Sorabjee v. the United Kingdom, No. 23938/94, Dec.

23.10.95).

The Commission notes M.R.'s previous immigration record,

including overstaying his visa, illegally entering the country on two

occasions, and lying about his nationality in order to gain reduced

educational fees. The Commission further notes that M.R. was able to

appeal against the refusal of the Entry Clearance Officer to grant a

visa and that the Immigration Appeal Tribunal found that the

adjudicator had considered and weighed all the evidence before her

before coming to her decision, and that it was not a proper case in

which to grant leave to appeal.

Finally, the Commission notes that the applicant was aware of the

fact that M.R. was in the United Kingdom without a valid visa when she

concluded a Muslim marriage with him in England, and she must have been

aware that his continued stay in the United Kingdom was precarious.

The Commission does not under-estimate the difficulty of the

situation in which the applicant finds herself. However, having regard

to the above considerations and in particular the fact that the

applicant was aware of M.R.'s precarious situation in the United

Kingdom prior to concluding a Muslim marriage with him and given M.R.'s

repeated disrespect for immigration rules and his dishonesty, the

Commission considers there were strong factors of immigration control

weighing in favour of exclusion.

In these circumstances the Commission does not consider the facts

disclose a lack of respect for the applicant's right to 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.

3. The applicant complains under Article 13 (Art. 13) of the

Convention.

"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."

The Commission recalls that the guarantees of Article 13

(Art. 13) apply only to a grievance which can be regarded as "arguable"

(cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment

of 21 February 1990, Series A no. 172, p. 14, para. 31). In the

present case, the Commission has rejected the substantive claims as

disclosing no appearance of a violation of the Convention. For similar

reasons, they cannot be regarded as "arguable".

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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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E.R. v. THE UNITED KINGDOM

E.R. v. THE UNITED KINGDOM