Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26290/95

by Asia BIBI

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 16 January 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

M.P. PELLONPÄÄ

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 7 October 1994 by

Asia BIBI against the United Kingdom and registered on 25 January 1995

under file No. 26290/95;

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 Pakistani citizen born in 1954 and resident

in Mirpur, Pakistan. She is represented before the Commission by Moody

and Woolley, solicitors practising in Birmingham. The facts as

submitted by the applicant may be summarised as follows.

The applicant's husband deserted her in or about 1979. She has

one son who was granted permission permanently to settle in the United

Kingdom in 1993. She also has two adult brothers who have settled

permanently in the United Kingdom, and who have lived there

approximately 26 years.

Prior to 1991, the applicant lived in Pakistan with her mother,

Sardar Begum and her son. In July 1991, her son left to enter the

United Kingdom for the purpose of marriage to a British citizen.

On 10 December 1991, the applicant entered the United Kingdom

having obtained a visa as a visitor for a period of up to six months.

She travelled with her mother who has also obtained a visa separately

to enter as a visitor.

On 19 November 1992, the applicant's mother was granted

permission to remain permanently on the basis of her being dependent

on her two sons (brothers of the applicant).

On 22 May 1992, the applicant had also applied to the Home Office

to be allowed to remain permanently in the United Kingdom with her son

upon whom she claimed to be dependent.

Following an interview on 3 August 1993 with an immigration

officer, the applicant was served with notice treating her as an

illegal immigrant on the basis that she had obtained entry by

deception.

Following the issuance of removal directions, the applicant's

solicitor made representations to the Home Office pointing out that the

applicant had no close relatives remaining in Pakistan, that her home

had been destroyed in a flood and that she was supported by her two

brothers who were in the United Kingdom. They submitted that though the

applicant was being removed as an illegal immigrant and could still

apply from Pakistan to enter as a dependent of settled relatives in the

United Kingdom, it would be a waste of time and money to send her back.

By a letter dated 24 May 1994, the Home Office explained that the

entry clearance officer had been misled as to the family's

circumstances, in particular, that the applicant had said that she had

a child who would remain in Pakistan to be looked after by her mother

and had made no reference to having a son in the United Kingdom or that

her mother was intending to visit the United Kingdom at the same time.

Her mother had on her application for entry also made no mention of the

applicant nor when questioned on arrival. Further it was noted that

once in the United Kingdom, while living together, the applicant and

her mother submitted their applications for permission to remain from

different addresses. It was concluded that she had deliberately

misrepresented the facts to obtain her entry visa with the intention

of applying for permission to say once she was in the United Kingdom.

There were no exceptional reasons of a compassionate nature not to

expel her, since it appeared from the information submitted by the

applicant's mother that the applicant had three aunts remaining in

Pakistan and that the family had a house and land in Pakistan.

The applicant's application for judicial review of the decision

to remove her as an illegal entrant was dismissed by the High Court on

9 June 1994 on the basis that the evidence produced by the Home Office

was sufficient to establish that she had obtained entry by deception.

Further representations made on her behalf to the Home Secretary

were rejected on 7 November 1994. The applicant was removed to Pakistan

on 14 November 1994.

COMPLAINTS

The applicant complains that her removal breached Article 8 of

the Convention in that it was an unjustifiable interference with her

right to enjoyment of family life with her son and mother. She submits

that the removal effectively severs her family life since it not

reasonable to expect her mother or son to come to live with her in

Pakistan, since her mother settled with her two sons on whom she is

dependent and her son married to a British citizen who has lived in

the United Kingdom for most of her life. She relies on the fact that

she has lived all her life with her mother and son in Pakistan. There

is, she argues, no pressing social need for her removal which was

disproportionate in the circumstances.

The applicant complains that she has no effective remedy as

required by Article 13 in respect of the removal since the only

proceedings possible are judicial review, which require a decision to

be "Wednesbury" unreasonable (eg. a decision which no reasonable

Secretary of State could have reached) before they could be successful.

THE LAW

1. The applicant complains that her removal from the United Kingdom

infringes her right to respect for her family life.

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

"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 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 according to its established case-law

while Article 8 (Art. 8) of the Convention does not in itself guarantee

a right to enter or remain in a particular country, issues may arise

where a person is excluded, or removed from a country where his close

relatives reside or have the right to reside (see eg. 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).

The Commission has examined whether such a degree of dependency

exists between the applicant and her relatives as to give rise to the

protection envisaged by Article 8 (Art. 8) of the Convention (cf. Nos.

9214/80, 9473/81 and 9474/81 Dec. 11.5.82 D.R. 29 p. 176 and No.

13564/88 dec 8.9.88 DR 57 p. 287). Generally, the protection of family

life under Article 8 (Art. 8) involves cohabiting parents and their

dependent, minor children. Whether it extends to other relationships

depends on the circumstances of the particular case. In immigration

cases, relationships between a parent and adult child would not

necessarily attract the protection of Article 8 (Art. 8) without

evidence of further elements of dependency, involving more than the

normal, emotional ties ( see eg. No. 10375/83, Dec. 10.12.84, D.R. 40

p. 196). In this context, the Commission notes that while it is alleged

that the applicant is dependent on her son the nature and extent of

that dependency is not detailed in any way. Further, it is her own

brothers who were stated in submissions to the Home Office to have been

supporting her in Pakistan. The Commission has however had regard to

the fact that the applicant prior to her arrival in the United Kingdom

appears to have lived for a large part of her life with her son and her

mother and accepts that there must be held to be "family life" within

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

However, the Commission notes that 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. 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 or to

accept the non-national spouse 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). The Commission considers that this

applies to situations where members of a family, other than spouses,

are non-nationals. Whether removal or exclusion of a family member from

a Contracting State is incompatible 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

(eg. history of breaches of immigration law) or considerations of

public order (eg. serious or persistent offences) weighing in favour

of exclusion (see eg. Nos. 9285/81, Dec. 6.7.82, D.R. 29 p. 205 and

11970/86, Dec. 13.7.87 unpublished).

The Commission recalls that the applicant has been expelled since

the immigration authorities found that she had gained entry as the

result of misrepresentations of fact and intention. It notes that the

immigration authorities considered that the applicant's mother also

sought to mislead them when applying for entry and then in obtaining

leave to remain permanently. To some extent therefore, it would appear

that the applicant is separated from her son and mother as a result of

their own decisions to seek entry, on grounds of marriage and

dependency respectively. While it is undoubtedly a matter of hardship

for the applicant now to live apart from the members of her family to

whom she was closest, it appears that the applicant does have other

relatives remaining in Pakistan and it has not been alleged that her

brothers will not continue to maintain her as they did before. In that

regard it notes that the applicant was removed as an illegal immigrant

and that it is still open her to make an application from Pakistan in

the normal way for entrance as a dependent on settled relatives in the

United Kingdom.

In these circumstances, notwithstanding the humanitarian element

referred to above, the Commission finds that there are no elements

concerning respect for family life which in this case outweigh the

valid considerations relating to the proper enforcement of immigration

controls. It concludes that the removal does not disclose a lack of

respect for the applicant's right to respect for family life as

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

It follows 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 also invokes Article 13 (Art. 13) of the

Convention, which 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

H.R., Boyle and Rice 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

their Convention rights.

It follows that this 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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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BIBI v. THE UNITED KINGDOM

BIBI v. THE UNITED KINGDOM

LEXI