Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28853/95

by Said AFZAL

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

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

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

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 16 May 1995 by

Said AFZAL against the United Kingdom and registered on 5 October 1995

under file No. 28853/95;

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 a British citizen born in 1934 in Attock

(Pakistan) and resident in England.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant has been settled in the United Kingdom for many

years.

On 19 January 1977 the applicant's first son, P.N., (who was at

that time 13 or 15 years old), the applicant's wife, second son and

daughter applied for entry clearance to join the applicant in the

United Kingdom from Pakistan.

On 5 October 1978 the Entry Clearance Officer in Islamabad

refused the application as he was not convinced that they were related

to the applicant as claimed. This was due to misleading information

given by the applicant (the sponsor of their application) as to P.N.'s

date of birth and to major discrepancies in the information provided

concerning the identity and make-up of the family.

The appeal was dismissed for the same reasons on 27 October 1980.

On 16 August 1984 the applicant's first son, P.N., the

applicant's wife, second son and daughter filed a new joint application

for entry clearance.

In April 1988 entry clearance was granted in favour of the

applicant's wife and the two younger children. P.N. was refused entry

clearance on 12 March 1992. Although the Secretary of State was

satisfied that P.N. was the applicant's son, he pointed out that when

the 1984 application was lodged P.N. was over the age of 18 and

therefore did not qualify for admission as a dependent son under

Paragraph 50 of the Immigration Rules then in force.

The Secretary of State's policy in such cases is that entry

clearance will be granted only if, inter alia, the individual, albeit

an adult, can establish significant dependency on the parent, as well

as compassionate circumstances to justify an exception to the 18-year

age limit.

P.N. appealed against the 1992 decision. Before the Adjudicator

the applicant stated that his wife had been pregnant with P.N. when he

went away to work on the ships and it was at least 6 to 7 years later

that he first saw his son; that P.N. was not working, that the family

had only a little land in Pakistan, which was cultivated by labourers

employed by P.N., that these labourers were paid with money from the

applicant and that if money was not sent by the applicant, P.N. would

not be able to feed or clothe himself; that P.N. had no relatives

living in the same area in Pakistan; that the applicant kept in touch

with P.N. by letters, telephone calls and cassettes, and that his wife

was constantly crying because "her child had been left behind in

Pakistan".

The Adjudicator dismissed the appeal on 6 April 1994, as he could

not find that at the date of the decision, P.N. had been without close

relatives to turn to in his own country, nor that he had been wholly

or mainly dependent on the applicant.

The Adjudicator found in this respect that P.N.'s family owned

about 5 acres of land in Pakistan and a tractor, that P.N. was

receiving a reasonable income from the family land and that his

maternal uncle was living in a village nearby.

The Adjudicator nevertheless requested the Secretary of State to

look at the matter once again and to take into account that 16 years

had elapsed since P.N.'s original application.

In September 1994 the applicant requested the Secretary of State

to review the decision of 12 March 1992, as suggested by the

Adjudicator. He pointed out that P.N. had sold his tractor, that the

family land was very limited, that the maternal uncle living in the

neighbouring village had moved to Karachi, which was two days' train

journey from the village where P.N. was living and that he had to send

money to P.N. for his subsistence.

The Secretary of State gave his decision on 28 November 1994.

Although he accepted that P.N. was not responsible for the incorrect

and misleading information given in support of the 1977 application,

he refused to review the 1992 decision, as he could not accept that

P.N. had remained dependent on his father, having seemingly settled

into adult life abroad supporting himself by his own efforts. The

Secretary of State referred to the Adjudicator's conclusion that P.N.

had not, at the date of the decision, been living alone in the most

exceptional compassionate circumstances and stated that he would not

feel justified in reversing the decision reached by the Adjudicator.

COMPLAINTS

1. The applicant complains that the refusal of the immigration

authorities to grant entry clearance to his son P.N. constitutes a

violation of his right to respect for family life and inhuman and

degrading treatment. He invokes Articles 8 and 3 of the Convention.

2. The applicant considers that the discriminatory immigration

policy violates Article 14 of the Convention.

THE LAW

1. The applicant complains that the refusal of entry clearance for

his son was in breach of Article 8 (Art. 8) of the Convention which

guarantees, inter alia, the right to respect for family life. In

respect of the same facts he also invokes Article 3 (Art. 3) of the

Convention.

The Commission will examine the present complaint under Article 8

(Art. 8) of the Convention.

The Commission refers to its established case-law that there is

no right to enter, remain or reside in a particular country guaranteed,

as such, by the Convention. However, in view of the right to respect

for family life ensured by Article 8 (Art. 8) of the Convention, the

exclusion of a person from a country in which his close relatives

reside may raise an issue under this provision of the Convention (cf.

No. 11274/84, Dec. 1.7.85, D.R. 43, p. 216).

In examining cases of the present kind the Commission's initial

task is to consider whether a sufficient link exists between the

relatives concerned such as to give rise to the right to protection of

family life under Article 8 (Art. 8) of the Convention (cf. No.

9492/81, Dec. 14.7.82, D.R. 30, p. 232 and No. 19546/92, Dec. 31.3.93,

unpublished).

The Commission recalls that relationships between adults - in the

present case a father and his 29- or 31- year-old son - would not

necessarily attract the protection of Article 8 (Art. 8) of the

Convention without evidence of further elements of dependency,

involving more than the normal emotional ties (cf. No. 10375/83, Dec.

10.12.84, D.R. 40, p. 196). The Commission does not find that such

elements have been established in the present case.

The Commission understands the applicant's frustration arising

from the initial refusal in 1980 to grant entry clearance before the

immigration authorities were satisfied that P.N. was the applicant's

son. However, no allegation of bad faith on the part of the immigration

authorities has been made by the applicant. Moreover, both the

applicant and his son were given a fair opportunity to present P.N.'s

case and the applicant was able to submit evidence of his son's

filiation.

The Commission considers therefore that its examination of the

case under Article 8 (Art. 8) of the Convention must be limited to the

applicant's present-day circumstances and the nature of his

relationship with his son now.

The Commission notes that the applicant does not have strong

links either with Pakistan, a country that he left more than 20 years

ago, or with his son, whom he has not seen since he left that country.

The claim that P.N. is financially completely dependent on the

applicant has not been substantiated. In this respect, the Commission

points out that according to the evidence before the immigration

authorities, P.N. enjoys a good standard of living, he works the family

land in Pakistan and his alleged dependency on the applicant appears

to be a dependency of choice rather than necessity.

In these circumstances the Commission finds that it has not been

shown that there exists such a close link between the applicant and his

son as could be deemed to require the protection afforded by Article 8

(Art. 8) of the Convention to family life.

It concludes therefore that the present case does not disclose

any appearance of a breach of the right to respect for family life

within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.

Accordingly this part of the application must be rejected as being

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

(Art. 27-2) of the Convention.

2. Insofar as the applicant invokes Article 14 (Art. 14) of the

Convention, he has failed to substantiate his complaint, which

accordingly must also be rejected as being 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 J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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AFZAL v. THE UNITED KINGDOM

AFZAL v. THE UNITED KINGDOM

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