Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19882/92

by A.B.

against the United Kingdom

The European Commission of Human Rights sitting in private on

6 January 1993, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G. B. REFFI

Mr. H.C. KRÜGER, 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 21 February 1992

by A.B. against the United Kingdom and registered on

23 April 1992 under file No. 19882/92 ;

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 British national born in 1957 and resident in

Surrey. She is represented in the proceedings before the Commission

by Messrs. Hafiz & Co., solicitors practising in London.

The facts, as submitted by the applicant and which may be deduced

from the documents lodged with the application, may be summarised as

follows.

The applicant was born in Pakistan from where she emigrated in

1975, at the age of 18, when she married a British national also of

Pakistani origin. However, shortly afterwards they separated and

divorced. The applicant remained in the United Kingdom and at present

works as an assistant manageress of a travel agency. She became a

naturalised British citizen in 1981.

In January 1988 the applicant returned to Pakistan in order to

attend her niece's wedding. During her visit she met M.A., a distant

relative, eight years her junior. After this meeting their parents

arranged a marriage between them and the couple married two and a half

months later, not having had any further contact meanwhile. They lived

together for six weeks and then the applicant returned to the United

Kingdom. The husband owns a carpet business.

The applicant and her husband kept in contact through

correspondence. The applicant also visited her husband in Pakistan for

three weeks in January - February 1989, 17 days in June 1989 and five

weeks in 1990. The applicant became pregnant in 1989 but had a

miscarriage.

On 21 August 1988 M.A. applied for entry clearance to the United

Kingdom. On 28 September 1989 the application was refused. His appeal

to an Adjudicator was refused on 4 March 1991, on the ground that he

was deemed to have contracted the marriage for the primary purpose of

immigrating to the United Kingdom in contravention of para. 46 of the

Immigration Rules (HC 169/503).

The Adjudicator doubted the credibility of the applicant and her

husband as their answers to several questions were inconsistent. He

found "extremely unlikely" the applicant's statement that only four

weeks after the marriage (and two weeks before her departure) the

couple had began to discuss in which country they would live together.

On 27 June 1991 the Adjudicator's decision was upheld by an

Immigration Appeal Tribunal. On 11 December 1991 leave to apply for

judicial review was refused by the High Court.

COMPLAINTS

The applicant complains of the refusal to allow her husband to

enter the United Kingdom. She invokes Articles 8, 13 and 14 of the

Convention.

THE LAW

The applicant complains of the British Immigration Authorities'

refusal of her husband's entry into the United Kingdom and invokes

Articles 8, 13 and 14 (Art. 8, 13, 14) of the Convention.

1. Article 8 para. 1 (Art. 8-1) of the Convention provides:

"Everyone has the right to respect for his private and family

life, his home and his correspondence."

The Commission noted the findings of fact by the Entry Clearance

Officer, upheld by the Adjudicator and the Immigration Appeal

Tribunal, and their conclusion that, in the circumstances of the

instant case, it seemed that the primary purpose of the marriage was

to effect the husband's entry into the United Kingdom. This was borne

out by the interview of the applicant's husband with the Entry

Clearance Officer.

The Commission recalls that, 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

Article 8 (Art. 8) of the Convention (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).

The provision presupposes the existence of a family life and at

least includes the relationship that arises from a lawful and genuine

marriage even if a family life has not been fully established. The

Commission notes that the applicant and M.A. have lived together in

Pakistan, namely six weeks in 1988, five weeks in 1989 and five further

weeks in 1990.

The Commission recalls, however, 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. In its

judgment, the Court made the following statement:

"The duty imposed by Article 8 (Art. 8) cannot be considered as

extending to a general obligation on the part of a Contracting

State to respect the choice by married couples of the country of

their matrimonial residence and to accept the non-national

spouses for settlement in that country".

(Eur. Court H.R. Abdulaziz, Cabales and Balkandali judgment of

28 May 1985, Series A no. 94, p. 34, para. 68).

The Commission notes that it has not been shown that there were

obstacles to establishing family life in the applicant's home country,

Bangladesh, from where she originates and lived until she was 12 years

of age.

In the circumstances the Commission concludes that the decision

to refuse the applicant's husband entry into the United Kingdom has not

failed to respect her right to respect for family life, ensured by

Article 8 para. 1 (Art. 8-1) of the Convention.

It follows that this complaint must be rejected as manifestly

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

Convention.

2. Without further explanation the applicant alleges a violation of

Article 14(Art. 14) of the Convention which prohibits discrimination

in the securement of Convention rights and freedoms on any ground such

as race. The Commission notes, however, that para. 46 of the

Immigration Rules (HC 169/503) prohibits entry clearance being given

to foreign spouses on the ground, inter alia, that the primary purpose

of the marriage was to emigrate to the United Kingdom.

The Commission finds no evidence that such a restriction is

intended to discriminate against persons on the ground of sex, race or

any other ground referred to in Article 14 (Art. 14). The provision

makes no reference to a particular sex or racial or social group and

applies equally to all persons who fall within its scope (cf.

aforementioned Abdulaziz, Cabales and Balkandali judgment, pp. 39-41,

paras. 84-86). The Commission concludes, therefore, that this aspect

of the case is unsubstantiated and must be rejected as being manifestly

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

Convention.

3. The applicant has also invoked Article 13 (Art. 13) of the

Convention in respect of her complaints.

Article 13 (Art. 13) provides :

"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 case-law of the European Court of Human Rights establishes,

however, that Article 13 (Art. 13) does not 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 (Eur.

Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131,

p. 23, para. 52). In light of the conclusion that the applicant's

complaints under Articles 8 and 14 (Art. 8, 14) of the Convention are

manifestly ill-founded, the Commission finds that the applicant does

not have an arguable claim of a breach of these provisions for the

purposes of a remedy under Article 13 (Art. 13) of the Convention.

This part of the application must also therefore be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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SMITH AND FORREST v. THE UNITED KINGDOM

SMITH AND FORREST v. THE UNITED KINGDOM