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PATEL v. THE UNITED KINGDOM

Doc ref: 24723/94 • ECHR ID: 001-3256

Document date: September 4, 1996

Inbound citations: 0
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Cited paragraphs: 0
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Outbound citations: 4

PATEL v. THE UNITED KINGDOM

Doc ref: 24723/94 • ECHR ID: 001-3256

Document date: September 4, 1996

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 24723/94

by Nitaben PATEL

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 4 September 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 24 April 1994 by

Nitaben PATEL against the United Kingdom and registered on 28 July 1994

under file No. 24723/94;

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 Indian national born in India in 1964 and

resident in Middlesex, United Kingdom. She is represented before the

Commission by Sheridans Solicitors. The facts as submitted by the

applicant can be summarised as follows.

The applicant entered the United Kingdom on 23 July 1986. On

6 September 1986 she married "P" and on 1 October 1987 their daughter

was born. On 10 August 1988 the applicant was given indefinite leave

to remain in the United Kingdom. The marriage suffered difficulties

and on 15 January 1993 a decree absolute was granted and the marriage

was dissolved.

On 18 March 1993 the applicant married M. M is an Indian citizen

born in 1963. His previous wife had died in India on 13 January 1993.

M entered the United Kingdom on 7 February 1991 with a single visit

entry clearance, valid for a period of six months. On 28 June 1991 he

applied for leave to remain as a working holiday-maker. On

30 April 1992, his application was refused. His appeal against that

refusal was heard on 24 March 1993 and dismissed on 5 May 1993. On

15 April 1993, he applied for leave to remain as the spouse of the

applicant. On 10 March 1994 his application was refused on the basis

that the Secretary of State was not satisfied that the primary purpose

of the marriage was not to obtain settlement in the United Kingdom or

that M intended to live permanently with the applicant as his spouse.

M had no right of appeal against that decision and remained in the

United Kingdom without leave.

On 12 September 1994 the Secretary of State made a decision to

make a deportation order requiring M to leave the United Kingdom,

directing that he be removed to India and prohibiting him from re-

entering. On 14 March 1995 M's appeal against that decision was

rejected by the Adjudicator. On 29 June 1995 the Immigration Appeal

Tribunal refused M leave to appeal to the Tribunal against the decision

of the Adjudicator.

COMPLAINTS

The applicant complains that the decision of the Secretary of

State to refuse M leave to remain in the United Kingdom constitutes a

violation of her right to respect for her private and family life

contrary to Article 8 of the Convention. She states that she has now

been in the United Kingdom for more than seven years, has a daughter

by her first marriage, is employed as an assembly worker on a permanent

basis, lives in a happily settled family unit and is used to the way

and standard of life obtainable in the West.

THE LAW

The applicant alleges a violation of Article 8 (Art. 8) of the

Convention claiming that the deportation of her husband will interfere

with her right to respect for her family and private life. Article 8

para. 1 (Art. 8-1) (Art. of the Convention provides as follows.

"Everyone has the right to respect for his private and

family life, his home and his correspondence."

The present case may raise an issue under Article 8 (Art. 8) of

the Convention for, whilst the Convention does not guarantee a right,

as such, to enter or remain in a particular country, the Commission has

constantly held that the exclusion of a person from a country where his

close relatives reside may raise an issue under this provision (e.g.

No. 7816/77, Dec. 19.5.77, D.R. 9, p.219; No. 9088/80, Dec. 6.3.82,

D.R. 28, p. 160, and No. 9285/81, Dec. 8.7.82, D.R. 29, p. 205).

Article 8 (Art. 8) of the Convention presupposes the existence

of a family life and at least includes the relationship that arises

from a lawful and genuine marriage even if a family life has not yet

been fully established.

However, the Commission recalls that the State's obligation to

admit to its territory aliens who are relatives of persons resident in

the territory will vary according the circumstances of the case. The

Court has held that Article 8 (Art. 8) does not impose a general

obligation on States to respect the choice of residence of a married

couple of the country of their matrimonial residence or to accept non-

national spouses for settlement in that country (Eur. Court H.R.,

Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no.

94, p. 94, para. 68). Whether the removal or exclusion of a family

member from a Contracting State is incompatible with the requirements

of Article 8 (Art. 8) will depend of a number of factors: the extent

to which family life is effectively ruptured, whether there are

obstacles to establishing family life in either of the spouses' home

countries, whether there are special reasons why that could not be

expected of them, whether there are factors of immigration control or

considerations of public order (see Eur. Court H.R. Abdulaziz judgment

referred to above at para. 68, Berrehab judgment of 21 June 1988,

Series A no. 138, para. 29, Gül judgment of 19 February 1996, Reports,

para. 42 and No. 9285/81 Dec. 6.7.82, D.R. 29 p. 205).

The Commission notes the findings of the immigration authorities

that the primary purpose of M's marriage to the applicant was to obtain

settlement in the United Kingdom and that he had married the applicant

eleven months after his application for leave to remain as a working

holiday-maker had been refused and only six days before his appeal

against that decision was heard. Further, the Commission recalls that

the applicant herself had only been in the United Kingdom for eight

years at the time of the decision of the Secretary of State to issue

a deportation order in respect of M and that she had lived in India for

24 years before going to the United Kingdom. Accordingly the obstacles

to M and the applicant establishing family life in their home country

are not serious.

In these circumstances the Commission concludes that the decision

to refuse M leave to remain in the United Kingdom as the spouse of the

applicant has not failed to respect the applicant's right to respect

for her family or private life, as guaranteed by Article 8 (Art. 8) of

the Convention.

Accordingly the complaint must be dismissed 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.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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