AS TO THE ADMISSIBILITY OF

                      Application No. 27689/95

                      by S.H.

                      against Ireland

     The European Commission of Human Rights (First Chamber) sitting

in private on 9 April 1997, the following members being present:

           Mr.   M.P. PELLONPÄÄ, Acting President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 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 17 October 1994

by S.H. against Ireland and registered on 26 June 1995 under file

No. 27689/95;

     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 an Irish national born in 1991. She is

represented in the proceedings before the Commission by her father

(NH), an Irish citizen currently living in London.

     The applicant's previous application to the Commission

(No. 22521/93) was declared inadmissible by the Commission on

1 December 1993. It concerned complaints under Articles 3, 8, 13 and

14 in relation to the refusal by the Irish authorities of the

applicant's mother's (G.A.A.) visa application. The application was

declared inadmissible on grounds of non-exhaustion, the applicant not

having taken constitutional proceedings. The facts, as submitted by the

applicant and which may be deduced from the documents lodged with the

application, may be summarised as follows.

A.   Particular facts of the case

1.   Visa applications

     NH emigrated from Ireland when he was 14 years old and later

married G.A.A., a Ghanaian national. The couple have two children, one

of whom is the applicant who has cerebral palsy.

     NH and G.A.A. originally lived in Ghana. Due to the detention of

NH as an alleged spy, NH and G.A.A. moved to Bulgaria in 1991 where the

applicant was born on 7 April 1991. On 1 March 1992 the family moved

to Greece where G.A.A. applied for an Irish visa. On 9 March 1992

G.A.A. returned to Accra, Ghana. On 26 March 1992 NH was informed by

the Irish Embassy in Athens that G.A.A.`s application for an Irish visa

had been refused. In or about April 1992 NH moved to London, apparently

with the applicant and her sibling.

     On 14 May 1992 NH was informed by the Irish Embassy in London

that the Department of Justice would not enter into correspondence with

him. The Embassy added, however, that G.A.A. could submit a new visa

application at any time and supplied an application form. On 17 May

1992 G.A.A. again applied for an Irish visa. On 24 July 1992 NH was

informed by the Irish Embassy in London that G.A.A.`s latest

application had been unsuccessful. G.A.A. asked for reasons for the

refusal and applied for Irish citizenship.

     On 29 June and 30 July 1992 NH wrote to the Irish Embassy in

London, requesting information about the Irish domestic remedies

available to G.A.A. No reply was given to him. On 16 September 1992 the

Irish Embassy in London informed NH that they do not generally give

reasons for the refusal of a visa in a particular case. On 18 January

1993 the Irish Embassy in London also informed NH that G.A.A., under

the Irish Nationality and Citizenship Act 1956, could not apply for

post-nuptial citizenship as she and NH were not living together as

husband and wife.

     A further application for a visa was refused on 12 May 1993.

By letter dated 21 July 1993 NH was informed that the Minister for

Justice had reviewed G.A.A's case. However, and on the basis of the

information supplied, it was considered that it would not be justified

to grant a visa. On 23 October 1993 the Minister for Foreign Affairs

replied to NH's Member of the European Parliament (MEP) as regards the

visa application. The Minister explained that the visa application,

presented to the Irish Embassy in London by NH, indicated that G.A.A.

intended to reside with NH in the United Kingdom. The application was

reviewed by the Department of Justice but was not approved as it was

suspected that G.A.A. intended to use an Irish visa to enter the United

Kingdom. Accordingly, NH was advised that G.A.A. should apply for a

visa for the United Kingdom.

     Further to another letter from the applicant's father's MEP, the

Private Secretary to the Minister for Foreign Affairs pointed out, in

a letter dated 13 January 1994, that G.A.A.'s application stated that

G.A.A. intended to rejoin her family but that her address in Ireland

was "not yet determined". The Minister for Justice had already looked

at this case and concluded that she would not be justified in granting

a visa. NH's most recent letter of 24 November 1993 had been brought

to the Minister's attention and she remained unconvinced that G.A.A.'s

intention was to come and live in Ireland and, accordingly, the

Minister's decision remained the same.

     By letter of 24 February 1994 NH was informed that the Minister

had again reviewed the case but, on the basis of the information

supplied, considered that it would not be justified to grant the visa.

2.   The applicant's birth certificate

     After the applicant's birth, NH sent the applicant's Bulgarian

birth certificate to the Irish Embassy in Moscow together with his

passport in order to have the applicant included on his passport.

NH received back from Dublin his own passport with the applicant's name

included thereon but not the birth certificate. The applicant claims

that NH then wrote to the Irish Embassy in Moscow and in London and to

the Irish Minister for Foreign Affairs in an effort to get back the

applicant's birth certificate and that on all occasions either the

reply was unhelpful or none was given.

     On 9 January 1995 NH's passport expired and he immediately

notified the Irish Passport office in Dublin of this expiration, of the

fact that the applicant's birth certificate had not been returned from

the Irish embassy in Moscow and that, accordingly, he could not put the

applicant on his renewed passport. The applicant maintains that the

Passport Office said they would contact the embassy in Moscow but that

NH has heard nothing since.

3.   Legal aid applications

     Pursuant to the decision of the Commission of 1 December 1991,

NH wrote to the Irish Legal Aid Board (LAB) on 17 January 1994 to the

effect that the applicant wished to apply for legal aid. This letter

was acknowledged by the Irish LAB by letter dated 1 February 1994. The

applicant was furnished with the necessary legal aid forms by the Irish

LAB in or around August or September 1994 and these were completed and

submitted to the English LAB (which body was to process the legal aid

application to the Irish LAB). On 14 October 1994 the English LAB

informed the applicant that English legal aid forms were required.

These were completed and submitted to the Irish LAB by the English LAB

on 29 November 1994 and on 22 December 1994. The Irish LAB again

confirmed that Irish legal aid forms were required and these were

forwarded by the English LAB on 13 December 1994.

     By letter dated 2 February 1995 to NH, the Irish LAB stated that

the application for legal aid had been refused pursuant to the

provisions of para. 3.2.3 (5) of the Civil Legal Aid and Advice Scheme

namely, on the basis that the applicant had failed to provide such

information as was required under the provisions of para. 4.8.1 of that

Scheme. NH was informed that it was open to the applicant to appeal the

decision to an appeal committee of the Irish LAB.

     By letter dated 6 February 1995 to the Irish LAB the applicant

indicated that she wished to lodge an appeal. By letter dated 26 March

1995 the applicant also lodged a further application for legal aid for

proceedings in relation to her birth certificate.

     By letter dated 25 April 1995 the Irish LAB requested NH to

clarify the grounds upon which the initial legal aid application had

been made and to confirm when and by whom he had been notified of the

refusal of legal aid and of the appeal. NH was also requested to

outline the precise grounds for the applicant's second application for

legal aid. NH responded by letter dated 1 May 1995. The applicant

claims that no response has been received from the Irish LAB in

relation to the appeal or the second application for legal aid.

B.   Relevant law and Practice

     Section 33 of the Bulgarian Regulation on the Civil Register 1975

(as amended) provides that any interested party can obtain an official

copy of a birth certificate free of charge. Subsequent copies are

available for a fee.

COMPLAINTS

1.   The applicant complains under Article 8 of the Convention about

the refusal by the Irish authorities of a visa for her mother.

2.   She also complains under Article 5 of the Convention and

Article 1 of Protocol No. 1. about the failure of the Irish authorities

to return her birth certificate.

3.   She further complains under Article 6 of the Convention about the

nature of the body that took the decisions on her mother's visa

application and about the refusal of legal aid.

4    The applicant also complains under Articles 1, 3, 13, 14, 17 and

18 of the Convention.

THE LAW

1.   The applicant complains about the refusal by the Irish

authorities of a visa for her mother and submits that that refusal led

to her separation from her mother. She argues that she should be

exempted from any obligation to exhaust domestic constitutional

remedies in this respect because of the alleged denial of legal aid.

However, the Commission finds it difficult to establish, from the

documentation submitted by the applicant, the position as regards any

legal aid applications made by the applicant. Accordingly, the

Commission has not considered whether the applicant can be so exempted.

     However, the complaint is, in any event, inadmissible for the

reasons set out below. In this respect, the Commission notes that it

has received further relevant information and documentation from the

applicant in relation to this complaint in the course of the present

application. Article 8 (Art. 8) of the Convention, insofar as relevant,

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."

     The Commission considers that there exists family life within the

meaning of Article 8 (Art. 8) between the applicant and G.A.A. since

the applicant was born of a marital union and since the Commission does

not consider that there exist any exceptional circumstances which would

break that bond of family life (see, for example, Eur. Court HR, Ahmut

v. the Netherlands judgment of 28 November 1996, to be published in the

Reports of Judgments and Decisions for 1996, para. 60).

     The Commission also considers that it is not necessary to decide

whether there has been a justifiable interference with the exercise of

the applicant's right to family life or a failure on the part of that

State to comply with a positive obligation under Article 8 (Art. 8) of

the Convention because the applicable principles are similar. In both

contexts, regard must be had to the fair balance that has to be struck

between the competing interests of the individual and of the community

as a whole and, in this respect, the State enjoys a certain margin of

appreciation (Eur. Court HR, Gül v. Switzerland judgment of 19 February

1996, to be published in the Reports of Judgments and Decisions 1996,

para. 38 and the Ahmut v. the Netherlands judgment, loc. cit.,

para. 63).

     The Commission also recalls that, in addition to the above

principles, further principles are considered by the case-law to apply

when the matter concerns immigration matters. In this respect, the

Commission recalls that the extent of a State's obligation to admit to

its territory non-nationals will vary according to the particular

circumstances of the persons involved and the general interest. In

addition, as a matter of well-established international law and subject

to its treaty obligations, a State has the right to control the entry

of non-nationals into its territory. Furthermore, Article 8 (Art. 8)

cannot be considered to impose on a State a general obligation to

respect the choice of immigrants of the country of their matrimonial

residence or to authorise family reunion on its territory (Eur. Court

HR., Gül v. Switzerland judgment, loc. cit., para. 38 and the Amhut v.

the Netherlands judgment, loc. cit., para. 67).

     Accordingly, as in the above-cited Gül and Ahmut cases, in order

to establish the scope of the Irish State's obligations, the facts of

the case must be considered.

     It is true that the applicant and her father, NH, are Irish

nationals and that the applicant submits that the family wish to

establish their home in Ireland.

     However, the applicant left Greece in April 1992 when she was one

year old with NH and settled in the United Kingdom. She has been living

in the United Kingdom since then with NH and is now almost 7 years old.

The applicant and G.A.A. were separated when the latter left Greece to

return to Ghana in March 1992 namely, before the refusal by the Irish

authorities of the first visa application.

     In addition, NH emigrated from Ireland when he was 14 years old

and he has lived abroad since then. Moreover, the applicant has not

provided the Commission with any address in Ireland where G.A.A. and

the family intend to settle or with any other details of existing

connections to or of plans for a future life in Ireland. Furthermore,

the Commission notes that there is nothing to prevent the applicant's

mother from applying for a visa for the United Kingdom where her

husband and children have resided for almost five years. Furthermore,

the Commission recalls that the letter of the Private Secretary to the

Minister for Foreign Affairs of the 13 January 1994 noted that the

application for a visa stated that G.A.A. intended to rejoin her family

but that G.A.A.'s address in Ireland was "not yet determined".

     It was against this background that the Irish authorities formed

the view that G.A.A.'s application indicated that she intended to

reside in the United Kingdom and to use an Irish visa to enter the

United Kingdom. Accordingly, the visa application was refused and

G.A.A. was advised to apply for a visa for the United Kingdom (see the

Minister of Foreign Affairs' letter dated 23 October 1993).

     In such circumstances the Commission considers that the refusal

of a visa to G.A.A. by the Irish authorities does not disclose a lack

of respect for the applicant's family life.

2.   The applicant also complains about the failure of the Irish

authorities to return her birth certificate which means that she cannot

either obtain a passport in her own name or be included on her father's

passport. Accordingly, she submits that she cannot travel to see her

mother because she requires a passport to travel and that her father

cannot renew his own passport with her name on it and he requires his

passport for business purposes. The applicant invokes Article 5

(Art. 5) (resulting restrictions on her freedom of movement) and

Article 1 of Protocol No. 1 (P1-1) in relation to the applicant's

deprivation of her passport.  The Commission has also considered these

matters under Article 2 of Protocol No. 4 (P4-2).

     Insofar as NH's inability to obtain a passport directly affects

the applicant, the Commission notes that there is nothing to prevent

NH obtaining a passport without the applicant being included therein.

In addition, the Commission considers that the applicant has not

demonstrated that she cannot obtain a further copy of her birth

certificate from the Bulgarian authorities. Moreover, Article 5

(Art. 5) of the Convention does not apply to complaints in relation to

restrictions of movement and travel (No. 10801/84 Dec. 3.10.88, D.R.

61, p. 62). Accordingly, the Commission considers these complaints

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

(Art. 27-2) of the Convention.

3.   The applicant also complains under Article 6 (Art. 6) of the

Convention about the nature of the body that determined G.A.A.'s visa

application and about the alleged denial of legal aid for a

constitutional action regarding the refusal of that visa and for

proceedings regarding the alleged refusal by the Irish authorities to

return her birth certificate. The relevant part of Article 6 (Art. 6)

reads as follows:

     "1. In the determination of his civil rights ..., everyone

     is entitled to a fair and public hearing within a

     reasonable time by an independent and impartial tribunal

     established by law ..."

     As regards the complaints in relation to the nature of the body

deciding on G.A.A.'s visa application and the alleged denial of legal

aid for a constitutional action about the refusal of that visa, the

Commission recalls that Article 6 (Art. 6) has no application to

proceedings involving the determination of entry visas (mutatus

mutandis, No. 8118/77, Dec. 15.5.84, D.R. 39, p. 119 and No. 9990/92,

Dec. 15.5.84, D.R. 39, p. 119).

     As regards the complaint about an alleged refusal of legal aid

for proceedings in relation to the birth certificate issue, the

Commission also recalls that Article 6 (Art. 6) of the Convention is

not applicable when the person concerned cannot assert on arguable

grounds that domestic law recognises the right claimed (No. 13557/88,

Dec. 9.10.89, D.R. 63, p. 167). The applicant has not claimed or

referred to any right in Irish law to the return by a State authority

of a birth certificate submitted in connection with a passport

application to one of the State's embassies in circumstances where the

birth certificate was issued, and further copies can be obtained, from

abroad.

     Accordingly, the Commission finds these complaints incompatible

ratione materiae with the provisions of the Convention and, as such,

inadmissible pursuant to Article 27 para. 2 (Art. 27-2) of the

Convention.

4.   Finally, the applicant also invokes Articles 1, 3, 14, 17 and

18 (Art. 1, 3, 14, 17, 18) of the Convention.

     However, the Commission does not find that the applicant has

substantiated the allegations, made under Article 1 (Art. 1), that the

Irish authorities have demonstrated a consistent and determined

attitude of non-disclosure, misrepresentation and wilful negligence in

the handling of matters concerning her and her claims. In addition, the

Commission finds that the applicant has not substantiated her

allegations, made under Articles 17 and 18 (Art. 17, 18) of the

Convention, that the intervention of "non-democratic factions" and

"secret societies" have perverted the operation of the judicial and

other systems in Ireland and that Ireland has used the exhaustion of

domestic remedies rule in Article 26 (Art. 26) of the Convention to

prevent her from vindicating her rights under the Convention.

Furthermore, the applicant's allegations of a discriminatory difference

in treatment in relation to the rights guaranteed by the Convention on

the grounds of her mixed race are completely unsubstantiated.

     She also invokes Article 3 (Art. 3) of the Convention submitting

that her separation from her mother amounts to treatment contrary to

that Article. Article 3 (Art. 3) provides as follows:

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

     degrading treatment or punishment."

     Insofar as the applicant's separation from her mother can be

attributed to the Irish State, the Commission recalls that 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 and that the suffering occasioned

must attain a certain level before treatment can be classified as a

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, for example, Eur. Court HR,

Ireland v. the United Kingdom judgment of 18 January 1978, Series A

no. 25, p. 65, para. 162).

     In the circumstances of the present case, the Commission does not

consider that the applicant's complaint discloses treatment of such a

nature or degree as to render it either inhuman or degrading within the

meaning of Article 3 (Art. 3) of the Convention.

     Finally, the applicant invokes Article 13 (Art. 13) of the

Convention arguing that she did not have an effective domestic remedy

in relation to the rights and freedoms guaranteed to her by the

Convention. Article 13 (Art. 13) of the Convention provides that:

     "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 however that Article 13 (Art. 13) does not

require a remedy under domestic law in respect of any alleged violation

of the Convention. It only applies if the individual can be said to

have an "arguable claim" of a violation of the Convention (Eur. Court

HR, Boyle and Rice v. the United Kingdom judgment of 27 April 1988,

Series A no. 131, p. 23, para. 52). The Commission finds that the

applicant cannot be said, in light of its findings above, to have an

"arguable claim" of a violation of his Convention rights.

     It follows that these complaints are 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                                Acting President

to the First Chamber                         of the First Chamber