Lexploria

Application No. 19232/91

by Neelofar SHEIKH, Faisal SHEIKH

and Nasir SHEIKH

against the United Kingdom

The European Commission of Human Rights sitting in private on

11 January 1993, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

Mr. M. de SALVIA, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 October 1991 by

Neelofar Sheikh, Faisal Sheikh and Nasir Sheikh against the United

Kingdom and registered on 19 December 1991 under file No. 19232/91;

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 British citizens born in 1961

and 1984 respectively and resident in Nottingham. The third applicant,

husband of the first applicant and father of the second, is a citizen

of Pakistan born in 1960 and resident in Mirpur, Pakistan. The

applicants are represented by Freeth Cartwright, solicitors practising

in Nottingham.

The facts of the case as submitted by the parties may be

summarised as follows.

The first applicant was born in Pakistan and came to live

permanently in the United Kingdom in 1969, aged 5.

On 23 December 1980, the third applicant arrived in the United

Kingdom seeking entry. Entry having been refused, he never left the

airport. While there he met the first applicant who was his cousin and

had visited the detention centre at the airport with other members of

the family. He returned to Pakistan on 25 December 1980.

On 20 September 1982, the third applicant applied to enter the

United Kingdom as the fiancé of the first applicant.

In March 1983, the first applicant visited Pakistan with her

mother. The first and third applicants were married in the traditional

way on 16 June and 16 July 1983.

Following interviews, the third applicant was refused entry in

June 1984 by the Entry Clearance Officer on the basis that he was not

satisfied that the marriage had not been entered into primarily to

obtain admission to the United Kingdom. In particular he found that the

third applicant, who had two passports, had tried to mislead him by not

producing the passport which showed that he had been deported in 1980.

The third applicant's appeal to the Adjudicator was refused on 3 August

1986. Meanwhile the first applicant had returned to the United Kingdom

on 17 June 1984. She gave birth to a son, the second applicant, on 17

August 1984.

The first and second applicants visited Pakistan from 21 March

1988 until 8 February 1990. The first applicant had only intended to

stay for a few months but remained longer because of a relative's

illness. She found it impossible to live in Pakistan as a Western

woman. She was also concerned that the second applicant would have a

better education in the United Kingdom.

The third applicant made another application for entry on 3

December 1989. He was refused entry by the Entry Clearance Officer on

the same date, partly on the ground that he could not be satisfied that

the primary purpose of the marriage was not to gain entry and partly

on the ground that he was not satisfied that the couple would have

adequate maintenance and accommodation without recourse to public

funds.

On 5 March 1991, the Adjudicator dismissed the third applicant's

appeal against the decision of the Entry Clearance Officer. He found

that the parties to the marriage would only live together permanently

if the third applicant was admitted to the United Kingdom. While there

was evidence of intervening devotion, he considered that the third

applicant had fatally damaged his credibility by the lies which he told

in 1980 and 1983. He was therefore not satisfied that the marriage was

not primarily entered into in order to obtain admission to the United

Kingdom.

Leave to appeal to the Immigration Appeal Tribunal was refused

on 20 June 1991.

COMPLAINTS

The applicants have submitted that the refusal of entry is a

violation of their right to respect for their private and family life

and their home contrary to Article 8 of the Convention. They have

submitted that there is ample evidence of intervening devotion and that

it is impracticable for them to live together in Pakistan. They have

submitted that the refusal is excessive and disproportionate, in

particular that their marriage is deemed to be flawed from the

beginning no matter how long it continues to subsist.

They have complained in respect of the second applicant that his

rights to education have been violated since his mother has been forced

on his behalf to choose between his father and a superior education in

the language of his family's choice. His opportunity to attend muslim

religious instruction has been prejudiced since a boy normally is taken

to the mosque by his father or a male relative. No relative is able to

do so because of work commitments and his father is not allowed into

the country. They have invoked Article 2 of Protocol No. 1 to the

Convention in this respect.

The applicants have also claimed that there is no domestic forum

to hear their complaints, contrary to Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 October 1991 and registered

on 19 December 1991.

On 9 September 1992, the Commission decided to communicate the

application to the respondent Government and to ask for written

observations on the admissibility and merits of the application.

By letter dated 31 October 1992, the Government informed the

Secretariat that the third applicant had been granted entry clearance.

By letter dated 9 November 1992, the applicants' solicitor informed the

Secretariat that in view of the decision to issue a visa to the third

applicant, the applicants wished to withdraw their application.

REASONS FOR THE DECISION

The Commission recalls that the third applicant has now been

granted a visa and that the applicants wish to withdraw their

application.

In these circumstances the Commission finds that the applicants

no longer intend to pursue their application. The Commission further

considers that respect for Human Rights as defined in the Convention

does not require it to continue the examination of the application.

It follows that the application may be struck off the list of

cases pursuant to Article 30 para. 1(a) of the Convention.

For these reasons, the Commission unanimously

DECIDES TO STRIKE THE APPLICATION OUT OF THE LIST OF CASES.

Deputy Secretary to the Commission President of the Commission

(M. de SALVIA) (C.A. NØRGAARD)

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SHEIKH v. THE UNITED KINGDOM

SHEIKH v. THE UNITED KINGDOM