Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23974/94

by Romana Valdez BALBASTRO and others

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 29 June 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

G.B. REFFI

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 3 February 1994

by Romana Valdez Balbastro and others against the United Kingdom and

registered on 26 April 1994 under file No. 23974/94;

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 applicant is a citizen of the Philippines born in 1944.

The second applicant, also a citizen of the Philippines, was born in

1949 and has indefinite leave to remain in the United Kingdom. The

third and fourth applicants are two of the second applicant's children

by his first marriage. They are also Philippines citizens, have

indefinite leave to remain in the United Kingdom, and were born in 1970

and 1972 respectively. The applicants have lived together as a family

since May 1991. The facts of the case, as submitted by the applicants'

representative, Mr. M. Penrose of Messrs. Winstanley-Burgess,

solicitors, London, may be summarised as follows.

On 27 November 1992 an immigration officer reported to the Home

Secretary that the first applicant was liable to be deported as an

overstayer, her initial six months' leave to remain in the country

having expired two years and 10 months previously. The report referred

to a "bigamous marriage" the first applicant had contracted with the

second applicant on 8 May 1991, and to a declaration made by the first

applicant before her marriage on that date that she was a spinster.

Account was taken of an application for leave made by the first

applicant's representatives, but it was felt that deportation was the

appropriate course.

The Secretary of State decided on 25 January 1993 to make a

deportation order.

The applicant's appeal to an adjudicator was limited by virtue

of Section 5 of the Immigration Act 1988 to consideration of whether

on the facts of the case there was "... in law no power to make (it)

for the reasons stated in the notice of the decision". It was

dismissed on 13 July 1993. The Immigration Appeal Tribunal dismissed

the first applicant's appeal on 30 November 1993, confirming the

adjudicator's view that he could not consider questions of procedural

unfairness.

On 20 December 1993 counsel advised that neither the decision of

27 November 1992 nor the Secretary of State's confirmation on

22 September 1992 of that decision could be challenged by way of

judicial review.

COMPLAINTS

The applicants submit that as they have been living together as

a family since May 1991, they must be considered as a "family" within

the meaning of Article 8 of the Convention. They submit that the first

applicant genuinely thought that, as she was no longer living with her

first husband in the Philippines, she was free to marry the second

applicant. They regard the interference with their rights to respect

for their family life, which has been brought about by the decision to

deport the first applicant, and her imminent deportation, as not

"necessary in a democratic society". They point out that, if deported,

the first applicant will not be eligible to return for 10 years, and

an application to revoke a deportation order will generally not be

granted unless the person has been absent from the United Kingdom for

at least three years from the making of the order. If the second

applicant were to accompany the first applicant, he would lose his

settled status if away from the United Kingdom for over two years.

The applicants also allege a violation of Article 13 of the

Convention because of the limited nature of the appeal which was open

to her by virtue of Section 5 (2) of the Immigration Act 1988.

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. Even assuming that the

relationship between the first and second applicants falls into this

category, the application is in any event inadmissible for the

following reasons.

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 first applicant entered the United

Kingdom with a six-month leave to enter, and that on its expiry she

remained in the country. She cannot show any particular hardship if

required to return to the Philippines. In particular, the second,

third and fourth applicants are all Philippines citizens, and free to

join or visit her if they wish.

In these circumstances the Commission concludes that the decision

to deport the first 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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BALBASTRO AND OTHERS v. THE UNITED KINGDOM

BALBASTRO AND OTHERS v. THE UNITED KINGDOM