Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24381/94

by Ali, Sandra and Phillip KAMARA

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 31 August 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 30 March 1994 by

Ali, Sandra and Phillip KAMARA against the United Kingdom and

registered on 13 June 1994 under file No. 24381/94;

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 first and second applicants are the son and wife respectively

of the third applicant. The first and second applicants are British;

the third applicant is from Sierra Leone. The applicants are

represented before the Commission by Ms. Nuala Mole, of the AIRE Centre

and Mr. J. Luqmani of Messrs Gordon Doctors and Walton, solicitors, of

London. The facts of the case, as submitted by the applicants'

representatives, may be summarised as follows.

The third applicant entered the United Kingdom as a visitor in

1987. An extension of his stay was granted until 25 August 1988.

Since then he has not had a valid residence permit. He met the second

applicant, now his wife, in November 1990 and they started co-habiting

in March 1991. Notice of intention to deport was served on the third

applicant on 10 December 1991 in the course of an interview at which

both he and the second applicant were present. The second and third

applicants married on 30 May 1992, and the third applicant's appeal

against the deportation order was dismissed in July 1992. The first

applicant was born on 16 July 1993.

On 11 January 1994 leave to challenge the Secretary of State's

decision to deport was refused. The judge pointed out that the

marriage and conception of the child both occurred after the father had

been served with intention of the notice to deport him. In reply to

an argument that the mother has epilepsy and Mediterranean fever and

would find it difficult to follow her husband to Sierra Leone because

of inadequate medical facilities, he expressly noted that the father

had caused this problem as he knew of the intention to deport when he

and the mother married. He also adverted to the result of the

Secretary of State's enquiries, which indicated that adequate medical

treatment was available in Sierra Leone. He considered that if leave

(to challenge) were granted, that would be like asking the Court to

substitute its opinion for that of the Secretary of State. He had no

doubt "that the position of the [applicants would] excite sympathy, but

it is not for me to remake the decision".

COMPLAINTS

The applicants allege violation of Articles 8 and 13 of the

Convention.

They argue that the second and third applicants had been

cohabiting for nine months when the third applicant was served with a

notice of intention to deport in March 1991, and point out that the

second applicant, who is English and has lived in rural England for

generations, would find it particularly difficult to establish and

maintain ties with Sierra Leone if she had to move there to continue

family life with her husband and child. Moreover, she suffers from

epilepsy and an intestinal disorder for which no adequate treatment

could be obtained in Sierra Leone. The applicants have submitted an

affidavit dated 17 March 1994 from a consultant physician who is the

only qualified neurologist in Sierra Leone in which he states that the

medical facilities for the second applicant's abdominal complaints are

"grossly inadequate" in Sierra Leone. He adds that the drug "epilim"

with which she is treated is not available in Sierra Leone.

None of the applicants has any family or other links with any

country outside the United Kingdom: the second applicant has never been

abroad, and the third applicant's parents are dead and he has no known

relatives in Sierra Leone.

The applicants also note that if the second applicant decided to

move to live and work in another member state of the European Union,

the third applicant could go with her, and that if the third applicant

were married to a national of any member state of the Union other than

the United Kingdom, action to remove him would not be contemplated.

PROCEEDINGS BEFORE THE COMMISSION

On 25 April 1994 the President of the Commission decided not to

indicate a measure under Rule 36 of the Commission's Rules of

Procedure, nor to intervene in the case in any other way.

THE LAW

1. The applicants allege a violation of Article 8 (Art. 8) of the

Convention. Article 8 para. 1 (Art. 8-1) 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. There is no suggestion in the

present case that the relationship between the second and third

applicants is anything other than that.

However, the Commission recalls 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 notes that the third applicant entered the United

Kingdom with a limited leave to enter, and that on its expiry he

remained in the country. He and the second applicant began cohabiting

even though his immigration status must have been clear to him and then

decided to marry, even though they both knew of the intention to

deport, which was served before they married in the course of an

interview at which both were present. Moreover, it does not appear

that the second applicant's illness is of recent date, so that at the

date of the marriage they were aware of both the third applicant's

immigration status and the second applicant's health problems. The

Commission finds, as did the judge who refused leave to move for

judicial review of the decision to deport, that that fact weighs

heavily against the applicants' arguments that the second applicant has

no links with Sierra Leone and that she would not find appropriate

medical treatment for her epilepsy and intestinal disorder there.

Notwithstanding the difficulties the first and second applicants

would face if, on the deportation of the third applicant to Sierra

Leone, the Commission concludes that the decision to deport the third

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

for family life, ensured by Article 8 para. 1 (Art. 8-1) of the

Convention.

Accordingly, this part of the case is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicants also allege a violation of Article 13 (Art. 13)

of the Convention. Article 13 (Art. 13) provides as follows.

"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 that Article 13 (Art. 13) cannot be

interpreted so as to require a remedy in domestic law in respect of any

supposed grievance under the Convention: the grievance must be an

arguable one in terms of the Convention. The European Court of Human

Rights has pointed to the link between the notion of "arguable claim"

in its own case-law and the notion of "manifestly ill-founded" in

Article 27 (Art. 27) of the Convention (Eur. Court H.R., Boyle and Rice

judgment of 27 April 1988, Series A no. 131, p. 23, paras. 52 and 54).

The Commission has found the applicants' claims under Article 8

(Art. 8) to be manifestly ill-founded. It also finds the claims under

Article 13 (Art. 13) to be not arguable.

It follows that this part of the application is also 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) (A. WEITZEL)

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KAMARA v. THE UNITED KINGDOM

KAMARA v. THE UNITED KINGDOM

LEXI