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FIRST CHAMBER

AS TO THE ADMISSIBILITY OF

Application No. 17712/91

by Najim ULLAH

against the United Kingdom

__________

The European Commission of Human Rights (First Chamber), sitting

in private on 14 October 1992, the following members being present:

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

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, 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 3 January 1991 by

Najim ULLAH against the United Kingdom and registered on 23 January

1991 under file No. 17712/91;

Having regard to the report provided for in Rule 47 of the

Commission's Rules of Procedure;

Having deliberated,

Decides as follows:

THE FACTS

The applicant is a citizen of Bangladesh, born in 1935 and

resident in Keighley, Yorkshire. He is represented before the

Commission by Messrs James & Co., Solicitors, Bradford.

The facts as submitted by the applicant may be summarised as

follows:

The applicant has married twice. His first wife, Jaharun Nessa,

bore him two sons, Atik Ullah, born in May 1961, and Kothib Ullah, born

in December 1963. These children first applied for entry clearance to

join the applicant in 1972, when they were aged 11 and 9 years

respectively. They were refused entry clearance because the British

immigration authorities were apparently not satisfied on the evidence

available that they were related as claimed to the applicant. The

applicant appealed against the refusal but later withdrew the appeal

in 1976 after seeking legal advice. Since then, scientific evidence

has become available (date unknown) to prove that these two young men

are the applicant's children (DNA test not submitted with application)

and in 1988 they re-applied for entry clearance. It was refused,

however, because they were both by then over the age of 18 and no

longer dependent children under the Immigration Rules. Moreover, they

did not fall within the category of "distressed relatives" or any other

entry clearance category (refusal decision not submitted with the

application).

In June 1989 a Statement was delivered in Parliament by the

Secretary of State regarding those people who had been refused entry

clearance as children, because there had been no satisfactory evidence

as to the claimed family relationship, but who had subsequently been

able to prove the family link by DNA blood testing. He made it clear

that the Immigration Rules only envisaged the entry of children and

dependents and that, as the earlier decisions had been taken in good

faith, a person over the age of 18 re-applying for entry to the United

Kingdom to join a family on the basis of new DNA evidence would only

be admitted in the following circumstances:

"a. that he was refused entry clearance as a child on

relationship grounds;

b. that DNA evidence establishes that he was, after all,

related as claimed;

c. that he is still wholly or mainly dependent on his sponsor

in the United Kingdom; and

d. that there are compassionate circumstances in his case."

It seems that in the light of this Statement the applicant

requested the Secretary of State to review his earlier decision. By

a letter dated 19 August 1990 the Secretary of State apparently

informed the applicant that he would not exercise his discretion in

favour of the two young men (letter not submitted with the

application).

According to translations of letters from the applicant's first

wife and the two sons to the applicant, it seems that the family in

Bangladesh live in close contact with other relatives and work land.

They have enough money to live. The applicant states that he sends

them money, which has included funds to purchase land. He also states

that his sons have no skills and do not actually do any of the farming

work on the property, which has recently been badly affected by

flooding. The family have oxen which they use to plough the land.

COMPLAINTS

The applicant complains, without specifying any Convention

provision, that the United Kingdom has failed to put right or mitigate

the wrong decision of refusing entry clearance to his sons in 1976 and

again in 1990.

THE LAW

The applicant complains of the refusal of entry clearance by the

British immigration authorities to allow his two sons to join him in

the United Kingdom.

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, para. 1 of which guarantees inter alia, the right to

respect for family life (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. 5.7.82,

D.R. 29 p. 205).

However, in examining cases of the present kind the Commission's

first 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. Relationships

between adults, a father and his 28 and 31 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 refusal in 1976 to grant entry clearance before his

relationship with his sons could be proved by DNA blood testing. If

they could have proved 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 1976 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 applicant's

present day circumstances and the nature of his relationship with his

sons now.

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

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

all their lives with their mother. The family apparently has land,

which they farm and from which are able to subsist. No evidence has

been provided, apart, from letters disclosing normal family affections,

which indicates that there exists a sufficiently close link between the

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

afforded by Article 8 (Art. 8) of the Convention to family life.

The Commission concludes 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 the application must 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 unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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ULLAH v. THE UNITED KINGDOM

ULLAH v. THE UNITED KINGDOM

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