Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23860/94

by Isbor KHAN

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 29 November 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

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 17 November 1993

by Isbor KHAN against the United Kingdom and registered on 12 April

1994 under file No. 23860/94;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

17 February 1995 and the observations in reply submitted by the

applicant on 2 June 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1936 who first entered

the United Kingdom in 1963. He lives in Oldham and is represented

before the Commission by Mr. P. Johnson, solicitor, of Oldham Law

Centre.

The particular facts of the case

On 20 March 1991 Aftera Bibi and four children applied for leave

to enter the United Kingdom. They were refused leave by the Entry

Clearance Officer on 17 July 1991 on the ground that Aftera Bibi was

the second wife of two,

"the first wife having been admitted to the United Kingdom in

1975 for settlement as the wife of the [applicant]. The first

wife had continued to live with the [applicant] and there did not

seem to have been any steps taken to terminate that marriage.

Therefore as Aftera Bibi's marriage to [the applicant] was

polygamous and as the other wife was living in the United

Kingdom, the [second wife] could not qualify for entry

clearance."

The children's applications were also rejected, as the applicant

was not solely responsible for their upbringing, and they were not

"living alone in the most exceptional circumstances ...".

An Adjudicator dismissed the applicant's appeal on

22 January 1993. Before the Adjudicator the applicant's representative

submitted that Paragraph 3 of HC 251 was discriminatory and in

violation of the Convention. He did not call any evidence. The

Adjudicator found that Paragraph 3 was mandatory and that it applied,

such that the second wife and the four children could not be granted

entry.

The Immigration Appeal Tribunal refused leave to appeal on

14 April 1993. The applicant's representative received the decision

on 19 April 1993.

Relevant domestic law

Paragraph 3 of the Immigration Rules ("the Rules") which were in

force at the relevant time (HC 251) reads as follows:

"Nothing in these rules shall be construed as allowing a woman

to be granted entry clearance, leave to enter or remain or

variation of leave as the wife of a man ("the husband") if:

(a) her marriage to the husband is polygamous; and

(b) there is another woman living who is the wife of the

husband and who

(i) is, or at any time since her marriage to the husband

has been, in the United Kingdom; or

(ii) has been granted a certificate of entitlement in

respect of the right of abode mentioned in Section 2

(1)a of the Immigration Act 1988 or an entry clearance

to enter the United Kingdom as the wife of the

husband.

For the purpose of this paragraph a marriage may be polygamous

although at its inception neither party has any spouse additional

to the other."

Paragraph 86 of the Rules provided that a passenger (but not the

wife and child under 18 of a person settled in the United Kingdom)

could be refused leave to enter the country on the ground that his

exclusion was conducive to the public good.

COMPLAINTS

The applicant considers that the rules of United Kingdom

immigration law are discriminatory in that they discriminate against

women in polygamous marriages as compared with men in polyandrous

marriages.

He sees a violation of Article 8 of the Convention in that he is

prevented from living in the United Kingdom with his second wife, and

a violation of Article 12 in that he is prevented from forming a family

in the sense of parents and children living together as a unit.

He also alleges a violation of Article 14 of the Convention in

connection with Article 8 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The applicant's representative first wrote to the Commission on

19 October 1993. That letter (postmarked 20 October 1993) was headed

"Isbor Khan / Aftera Bibi", and began "I am advising the above persons

in connection with an immigration matter concerning the Government of

the United Kingdom". He asked for the appropriate forms, and added

that he had "telephoned on numerous occasions leaving messages on your

answering machine in both English and in French. Despite this, I have

received no return telephone call". A standard form letter was sent,

and on 17 November 1993 the applicant's representative again wrote,

giving a summary of the facts of the case and the Convention

complaints. By way of reply, the applicant's representative was

informed that it was not certain that the letter of 19 October 1993

contained sufficient information to constitute introduction of the

application, and that the Council of Europe and the Commission do not

have a telephone answering machine on which messages can be left.

The applicant's representative informed the Commission on

23 December 1993 that he had telephoned the Strasbourg number

88.24.18.12 and that the answering machine described itself: "This is

the Centre for the European Citizens Human Rights".

The application was registered on 7 February 1994.

On 12 October 1994 the Commission (First Chamber) decided to

bring the application to the notice of the respondent Government and

to put questions to the parties as to the admissibility and merits of

the case.

The Government submitted their observations on 17 February 1995,

after two extensions of the time-limit, and the applicant submitted his

observations on 2 June 1995.

THE LAW

The applicant alleges violation of Articles 8, 12 and 14

(Art. 8, 12, 14) of the Convention in that he is not permitted to have

his second wife join him in the United Kingdom because of the rules

which prohibit the second wife of a polygamous marriage from entering

the United Kingdom where a first wife is already there.

The Government submit that the application is inadmissible for

non-compliance with the six months' rule, the applicant having first

written to the Commission on 19 October 1993, that is, more than six

months after the decision of 14 April 1993. In the alternative, they

submit that by failing to apply for judicial review of the refusal of

leave to appeal, the applicant has not exhausted the domestic remedies

available to him.

As to the substantive arguments, the Government recall that

bigamy is a criminal offence in the United Kingdom, and note that the

applicant has not in fact been prevented from marrying twice by United

Kingdom law or the application of the Rules. They submit that a

polyandrous woman would not be permitted to be joined by more than one

husband, as a request for such leave to enter would be refused as not

being conducive to the public good.

The applicant underlines that although the decision of the

adjudicator was given on 14 April 1993, he only received it on 19 April

1993. He considers that he has therefore met the time limit of six

months. He regards the possibility of an application for judicial

review of the refusal of leave to appeal to the Immigration Appeal

Tribunal as useless as sex discrimination provisions do not apply to

United Kingdom immigration law.

As to the substantive issues, the applicant repeats his initial

submissions.

The Commission is not required to decide whether or not the

application discloses any appearance of a violation of the Convention

as the applicant has not complied with the requirement of Article 26

(Art. 26) of the Convention that an application be introduced within

six months from the date of a final decision. The final decision

regarding the applicant's case was the decision of the Immigration

Appeal Tribunal to refuse leave to appeal, and that decision was given

on 14 April 1993 and received by the applicant's representative on

19 April 1993. In accordance with its established case-law, the

Commission finds that the date of the final decision was the date on

which the applicant's representative received the decision, namely

19 April 1993, which was the first time he became aware of its contents

(cf. No. 10889/84, Dec. 11.5.88, D.R. 56, pp. 56, 57 and the case-law

referred to there).

Pursuant to Rule 44 (4) of its Rules of Procedure, the Commission

in general takes as the date of introduction the date of the first

communication from the applicant "setting out, even summarily, the

object of the application". The next question in the present case is

therefore whether the applicant's first letter of 19 October 1993 set

out, even summarily, the object of the application. In considering

this question, the Commission must bear in mind that excessive

formalism is to be avoided (cf. Eur. Court H.R., Toth judgment of

12 December 1991, Series A no. 224, p. 22, para. 82).

The applicant's letter of 19 October 1993 gave no indication of

the subject matter beyond the phrase "an immigration matter". It gave

the names of the applicant and his second wife, but no other indication

whatever as to the nature or object of the intended application. In

particular, it referred to no domestic decisions which were being

challenged, and gave no hint as to the Convention issues which could

be raised (for an example of a letter which did comply with Rule 44

(4), see No. 10293/83, Dec. 12.12.85, D.R. 45, p. 41, at pp. 55 - 57).

The applicant's letter of 19 October 1993 did not therefore introduce

the application.

Rule 43 of the Commission's Rules of Procedure requires any

application under Articles 24 or 25 (Art. 24, 25) of the Convention to

be submitted "in writing". An application cannot therefore be made

other than in writing. The same formality need not, however,

necessarily apply to the introduction of an application, for which a

mere "communication" suffices.

The applicant's representative states that he attempted to enter

into contact with the Commission's secretariat by telephone, and that

his telephone message was never answered. The applicant must, however,

have rung the wrong number, as the number he gives is not and was not

the number of the Commission's secretariat or of the Council of Europe,

and indeed it does not now exist. Given that the principal aim of the

six months rule in Article 26 (Art. 26) of the Convention is the

promotion of legal certainty (cf. No. 10889/94, Dec. 11.5.88, referred

to above), the Commission cannot accept that allegations of telephone

calls to what transpires to be a wrong number can constitute

introduction of an application with the Commission within the meaning

of Rule 44 para. 4 of the Commission's Rules of Procedure.

Accordingly, the date of introduction of the present application

is 17 November 1993, which is more than six months after the date of

the final decision. It follows that the application must be rejected

under Article 27 para. 3 (Art. 27-3) 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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KHAN v. THE UNITED KINGDOM

KHAN v. THE UNITED KINGDOM

LEXI