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AS TO THE ADMISSIBILITY OF

Application No. 25936/94

by Karim and Shohid ALI

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, the following members being present:

MM. C.L. ROZAKIS, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

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 25 July 1994 by

Karim and Shohid ALI against the United Kingdom and registered on

14 December 1994 under file No. 25936/94;

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 facts of the case as submitted by the applicants may be

summarised as follows.

The applicants are brothers born in 1954 and 1956 respectively

in Bangladesh and residing there. Before the Commission the applicants

are represented by Mr. Omar Faruque, a solicitor practising in

Birmingham, the United Kingdom.

In 1957 the applicants' father left Bangladesh and settled in the

United Kingdom. He has lived there ever since, whereas his wife and

three children (the applicants and their younger brother) remained in

Bangladesh.

In 1969 the applicants' mother died. In 1970 the applicants'

father remarried in Bangladesh.

In October 1970 the three brothers (the applicants and their

younger brother), and their stepmother applied for permission to enter

the United Kingdom to join the applicants' father. The application was

refused on 4 April 1972 as there were discrepancies in the information

submitted and the immigration officials were not satisfied that the

applicants were the sons of the person who had invited them to the

United Kingdom. Some time between 1972 and 1975 the application of the

second wife of the applicants' father was reconsidered and she was

allowed to enter the United Kingdom.

On 5 November 1975 the three brothers submitted a second

application. The application was refused on similar grounds. As

regards the oldest applicant an additional reason was that he had been

over 18 years of age. The ensuing appeal was dismissed in 1977.

In the 1980s the applicants and their father lost contact with

the youngest brother, who left Bangladesh.

The applicants' father became ill and was unable to work

following a heart surgery in 1984. He has lived on social payments

ever since.

In 1989, after the introduction of the DNA tests, the United

Kingdom authorities announced that they would reconsider applications

previously refused for lack of satisfactory evidence as to

relationship, where it could be shown by means of DNA evidence that

relationship existed. However, persons over 18 had to establish the

existence of dependency upon the "sponsor" in the United Kingdom and

of compassionate circumstances.

In September 1990 the applicants requested permission to join

their father in the United Kingdom and submitted DNA evidence. On

6 July 1992 the application was refused by the Secretary of State on

grounds that the applicants were not dependent upon their father and

were "not living alone in most compassionate circumstances", being

adult men of 37 and 36 years of age respectively, settled in

Bangladesh. They worked on their own land and were not dependent upon

their father. One of them was married and had three children. They

had last seen their father in 1982.

On 16 August 1993 the Immigration Appeals Adjudicator, after a

hearing with the participation of the applicants' father, confirmed the

refusal. The decision stated inter alia that the alleged sporadic

money transfers of small amounts from the father did not constitute

dependency; that in 1993 both applicants were married with children;

that the applicants' father lived on social payments and would be able

to support his sons only from public funds, which was contrary to the

requirement that entry permission be given only if the applicant would

have adequate means without recourse to public funds; and that their

father had not visited Bangladesh between 1982 and 1991.

On 22 September 1993 the Immigration Appeal Tribunal dismissed

the applicants' appeal against this decision.

Thereupon they submitted an application for leave to apply for

judicial review before the High Court. It was submitted out of time,

but the applicants' father, who was representing his sons, maintained

that this was due to his deteriorating health as he had a heart

condition and lung cancer.

This application was dismissed on 12 May 1994.

COMPLAINTS

The applicants complain that the refusals of the United Kingdom

authorities on three occasions between 1970 and 1994 to allow them to

enter the United Kingdom to join their father constituted a breach of

their right to respect for their family life contrary to Article 8 of

the Convention.

Thus, they were in fact victims of the immigration practices in

the United Kingdom as these practices, by imposing an unreasonable

burden in proving the existence of relationship, had deprived them of

the opportunity to reunite with their father in 1970 and 1975 and had

led to the third refusal in 1992-94.

THE LAW

The applicants complain under Article 8 (Art. 8) of the

Convention that the refusals of the United Kingdom authorities to allow

them to join their father in the United Kingdom constituted an

interference with their right to respect for their family life.

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 ... the economic well-being of the country ...."

The Commission recalls that the Convention does not guarantee a

right to enter or to reside in a particular country. However, in view

of the right to respect for family life as guaranteed 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). Relationships between adults and, as in the present case,

between a father and his adult sons do not necessarily enjoy 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 considers that it is not necessary to examine in

the present case whether the applicants have complied with the

requirement under Article 26 (Art. 26) of the Convention as to the

exhaustion of domestic remedies as the application is in any event

inadmissible for the following reasons.

The Commission notes that the applicants have been refused entry

permission on three separate occasions, and that the last decisions on

each application were from 1972, 1977 and 12 May 1994 respectively. As

regards the authorities' refusals to grant entry permission in 1972 and

1977 the Commission considers that the applicants have not complied

with the six months' time limit under Article 26 (Art. 26) of the

Convention.

It follows that the application in this respect has to be

rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

As regards the authorities' refusal to grant the 1990 application

for entry in the United Kingdom the Commission does not find that the

applicants have established the existence of family life within the

meaning of Article 8 (Art. 8) of the Convention between them and their

father. Thus, the applicants have always lived in Bangladesh and have

spouses and children there. They have seen their father only a few

times since he left Bangladesh more than 35 years ago. The applicants

can support themselves, the alleged sporadic money transfers from their

father not being sufficient to amount to dependency.

It follows that the remainder of the application is 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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ALI v. the UNITED KINGDOM

ALI v. the UNITED KINGDOM

LEXI