Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20100/92

by A.K.

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 27 March 1992 by

A.K. against the United Kingdom and registered on 9 June 1992 under

file No. 20100/92 ;

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 1969 and resident in

Liverpool. 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 Bangladesh and immigrated to the United

Kingdom in 1981 at the age of 12. She became a naturalised British

citizen in 1984. At present she works as a waitress.

On 27 February 1987 the applicant returned to Bangladesh with her

parents for a visit. During the visit her parents and the parents of

A.H.K., a first cousin of hers, arranged a marriage. A.H.K. married

the applicant, 16 years his junior, a few days later on 10 July 1987.

He is a subsistence farmer. The couple lived together. However, after

four months the applicant returned to the United Kingdom because of

health complications after she became pregnant. There was continuing

contact by correspondence thereafter. On 7 May 1988 a daughter was

born to the couple. The applicant visited Bangladesh again in 1989

when she stayed for six months.

The applicant sponsored her husband to join her in the United

Kingdom. A.H.K. applied to obtain entry clearance, but his application

was refused by an Entry Clearance Officer on 20 June 1989 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 (a) of the Immigration Rules (HC 503).

The officer considered the credibility of A.H.K. poor as his

answers to questions were sometimes either obvious lies or contradicted

his previous answers. For example, the family of A.H.K. had a long

history of emigration. However, A.H.K. systematically tried to conceal

details about relatives who had emigrated from Bangladesh; he tried to

deny the fact that his own father had lived in the United Kingdom and

married a British woman before returning to Bangladesh. He also denied

the existence of a brother who had gone to Saudi Arabia. When asked

about the reasons for this behaviour he replied to the Officer that he

was "just listening to people's advice".

A.H.K. stated during his interview that the couple had begun to

discuss in which country they would live together only six weeks after

the marriage. He also said that "if given the choice he would stay in

Bangladesh", nevertheless, later in his interview he conceded that he

also wanted to go to the United Kingdom because he was poor.

The Entry Clearance Officer considered that in all the

circumstances it was impossible to believe that the couple had waited

six weeks before discussing where they should live. The husband was

thought to have been well aware of the advantages of living overseas

and the applicant was deemed never to have had any intention of

settling again in Bangladesh. She had stated at the interview that

everyone in the two families knew in advance that they would live in

the United Kingdom after the marriage.

The husband's appeal to an Adjudicator was rejected on

11 September 1990. The Adjudicator concluded that in view of the many

discrepancies in the husband's story about his background circumstances

the decision of the Entry Clearance Officer had been correct.

On 8 April 1991 the Adjudicator's decision was upheld by an

Immigration Appeal Tribunal. Finally on 3 September 1991 and on

23 October 1991 two leave applications for judicial review were refused

by the High Court.

COMPLAINTS

The applicant complains of a violation of Article 8 of the

Convention. She contends that there was no basis for holding that the

primary purpose of the marriage was to obtain her husband's admission

to the United Kingdom. Any doubts as to this had been disproved by the

couple's intervening devotion.

THE LAW

The applicant complains of the British Immigration Authorities'

refusal of her husband's admission to the United Kingdom. She invokes

Article 8 (Art. 8) of the Convention.

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).

This 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 her husband have lived together

in Bangladesh for four months in 1987 and six months in 1989 and that

they have a child.

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 the applicant's right to respect for family life,

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

it follows that the case is 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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A.K. v. THE UNITED KINGDOM

A.K. v. THE UNITED KINGDOM

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