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AS TO THE ADMISSIBILITY OF

Application No. 20516/92

by K.M.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 31 March 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 29 November 1991

by K.M. against the United Kingdom and registered on 19 August 1992

under file No. 20516/92;

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 citizen of the United Kindom, of Bangladeshi

origin. He was born in 1939 and resides in London. He settled there

in 1965. He is represented before the Commission by Messrs. Hafiz and

Co., solicitors, London.

The facts of the present case, as submitted by the applicant and

which may be deduced from documents lodged with the application, may

be summarised as follows:

The applicant has several children including two sons, born in

1964 and 1965 respectively. They applied for entry clearance in 1973,

1979 and 1982 to join the applicant in the United Kingdom. Entry

clearance was refused as they were not believed to be related to the

applicant as claimed. In August 1986 a further entry clearance

application was made. In May 1988, during the course of these

proceedings, DNA blood analysis revealed that they very probably were

related, but the application was again refused because the sons were

well over 18 years of age and, although demonstrating some elements of

dependency on the applicant, there were no compassionate circumstances

justifying an exception to the 18 year age limit. They were students

with a high standard of living compared to life in other villages.

They were considered to be self sufficient residing on the family

compound with relatives nearby. There was no evidence of financial

dependency on the applicant. If remittances were being made it was by

choice rather than necessity. The applicant himself had insufficient

means to support them in the United kingdom.

On 10 December 1990 the Secretary of State refused to exercise

his discretion in the sons' favour. The policy in such cases is that

entry clearance will only be granted if, inter alia, the child, albeit

an adult, could establish significant dependency on the parent, as well

as compassionate circumstances to justify an exception to the 18 year

age limit. The Secretary of State considered that the sons had settled

into independent adult life and were not wholly or mainly dependent on

the applicant. This decision was upheld on judicial review (final

decision: High Court 11 June 1991).

COMPLAINTS

The applicant complains that the refusal of entry clearance to

his two sons constituted a violation of Article 8 of the Convention.

Article 5 of Protocol No. 7 is also invoked.

THE LAW

1. The applicant complains that the refusal of entry clearance for

his two sons was in breach of Article 8 (Art. 8) of the Convention,

paragraph 1 of which guarantees, inter alia, the right to respect for

family life. 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. 6.7.82, D.R. 29 p. 205).

In examining cases of the present kind the Commission's initial

task is to consider whether a sufficient link exists between the

relatives concerned as to give rise to the protection of Article 8

(Art. 8) of the Convention (cf. No. 9492/81, Dec. 14.7.82, D.R. 30 p.

232). Generally, the protection of family life under Article 8

(Art. 8) involves cohabiting dependents, such as 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 adults, a father and his 27 and 28 year

old sons in the present case, would not necessarily attract the

protection of Article 8 (Art. 8) of the Convention without evidence of

further elements of dependency, involving more than the normal,

emotional ties (No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).

The Commission understands the applicant's frustration arising

from the initial refusals to grant entry clearance to his two sons

before their relationship could be proved by DNA blood testing. If

they had been able to prove their relationship earlier the sons would

have been likely to have been granted entry to the United Kingdom.

However, no allegation of bad faith on the part of the immigration

authorities has been made by the applicant. In this connection the

Commission recalls its constant case-law that such verification

procedures, as existed in the United Kingdom in the 1970s and which

gave immigrants a fair opportunity to present their family life claims,

satisfied the requirements of Article 8 (Art. 8) of the Convention (No.

8378/78, Kamal v. the United Kingdom, Dec. 14.5.80, D.R. 20 p. 168).

The Commission considers therefore that its examination of the case

under Article 8 (Art. 8) of the Convention must be limited to the sons'

present day circumstances and the nature of their relationship to the

applicant now.

As regards the facts of the present case, the Commission notes

that the two sons have strong ties with Bangladesh, where they have

lived all their lives. They reside on the family compound with

relatives nearby and have a reasonable standard of living. There is

no evidence that the sons are financially dependent on the applicant.

In these circumstances the Commission finds that it has not been shown

that there exists a sufficiently close link between these the applicant

and his sons which could be deemed to require the protection afforded

by Article 8 (Art. 8) to family life. It concludes therefore that the

present case does not disclose any appearance of a breach of the right

to respect for family life, within the meaning of Article 8 para. 1

(Art. 8-1) of the Convention. Accordingly this part of the application

must be rejected as being manifestly ill-founded, within the meaning

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

2. The applicant has also complained of a breach of Article 5

of Protocol No. 7 (P7-5), which ensures equality of rights and

responsibilities between spouses. However, the Commission is unable

to deal with a complaint directed against the United Kingdom based on

this provision because the United Kingdom has not ratified Protocol No.

7 (P7). It follows that this aspect of the case is outside the

competence ratione personae of the Commission and therefore

incompatible with the provisions of the Convention pursuant to Article

27 para. 2 (Art. 27-2).

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (J.A. FROWEIN)

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K.M. v. THE UNITED KINGDOM

K.M. v. THE UNITED KINGDOM

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