Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16243/90

by Kuntibai Suka GORANIYA

against the United Kingdom

The European Commission of Human Rights sitting in private on

12 October 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

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

B. MARXER

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 26 May 1989 by

Kuntibai Suka GORANIYA against the United Kingdom and registered on

6 March 1990 under file No. 16243/90 ;

Having regard to :

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission ;

- the observations submitted by the respondent Government on

5 September 1990 and the observations in reply submitted by the

applicant on 16 October and 2 November 1990 ;

- the information provided by the applicant on 10 January 1991 ;

- the information provided by the Government on 25 November 1991 ;

- the information provided by the applicant on 6 April 1992 ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a naturalised British citizen. She was born in

India in 1957 and went to the United Kingdom with her family in 1983.

She was granted indefinite leave to remain in 1985 and became a

naturalised British citizen on 14 December 1989. She lives in

Leicester and is represented before the Commission by Messrs. Singh &

Ruparell, Solicitors, London.

The facts of the present case, as submitted by the parties, may

be summarised as follows.

A. The particular circumstances of the case

The application arises over the original refusal by British

immigration authorities to allow the applicant's Indian husband to join

her in the United Kingdom as the husband was deemed to have contracted

the marriage for the primary purpose of emigrating to the United

Kingdom.

The background to the marriage, contracted on 15 February 1985,

is that the applicant first met her husband in India in 1980 and they

kept in touch regularly for a few months until Mr. Goraniya left for

Dubai in 1981. They did not see or write to each other, although the

applicant wrote a two line letter to her sister in 1984 asking her to

invite Mr. Goraniya to visit her in the United Kingdom, but he did not

reply.

The applicant's husband is an Indian national born in 1958. He

applied for a three month entry clearance to the United Kingdom as a

visitor in May 1984, ostensibly to visit his "uncle" who was in fact

the applicant's father. This application was refused in September

1984. He had failed to substantiate his claims that he had had an

invitation to visit the "uncle", who he had only met once. He had also

failed to satisfy the immigration authorities how he came to be able

to finance such a trip to England or whether he would be returning to

Dubai to work as a mason. He had told the immigration officer that his

whole family lived in India and that he had no marriage plans. The

immigration officer concluded that the man was not genuinely seeking

entry as a visitor who was intending to leave the United Kingdom after

the three month period. (The applicant's husband appealed against the

decision but the appeal was withdrawn in December 1985.)

Mr. Goraniya apparently arrived in the United Kingdom on 9

January 1985 and requested entry clearance as a visitor again. This

was refused but he was granted temporary admission following

representations from a Member of Parliament. Later in the month he

made his way without prior arrangement to the applicant's house. They

did not take to each other on that occasion. However, they met again

three weeks later when Mr. Goraniya proposed to her, and they married

shortly afterwards at a civil ceremony on 15 February 1985. They then

lived together for three weeks from 15 February until 8 March 1985,

when the husband voluntarily returned to Dubai. Mr. Goraniya did not

apply for entry clearance to join his wife until July 1986, more than

a year later, and he did not attend two appointments for interview in

connection with that application before he was finally interviewed in

September 1986, 18 months after he had left the United Kingdom. Before

appeal instances it was said that the delay in attending the interview

was because the husband had had passport difficulties. Subsequently it

was submitted to the Commission that the husband had not received the

letters notifying him of the interview appointments.

The Secretary of State formed the impression that the husband had

no great eagerness to join the applicant, although the couple

apparently corresponded regularly. The Secretary of State also noted

the applicant's statement that she would not leave the United Kingdom

to live with her husband because of her parents and other relatives

settled in the United Kingdom. He took into account the fact that the

husband was a low paid manual worker and that the situation in Dubai

was not altogether stable; by contrast, the applicant was a house owner

with a stable job as a sewing machine supervisor. The Secretary of

State concluded, therefore, that the marriage had been contracted for

the primary purpose of gaining the husband's admission to the United

Kingdom. This is a ground for exclusion under the Statement of Changes

in Immigration Rules HC 169, paragraph 46(a).

The refusal of entry clearance was upheld by an Adjudicator on

21 October 1988. He was not convinced that the couple had had genuine

contacts prior to the marriage, which he noted had only been a civil

not a Hindu religious ceremony. The credibility of the testimony of

the applicant's husband was impaired by the fact that he had not

announced to the immigration authorities when he entered in January

1985 that he planned to marry the applicant. Moreover he had not

supported the applicant financially since the marriage, whereas the

applicant was a "very good catch" for him both financially and by

virtue of her British nationality. Whilst not impugning the

applicant's motives for the marriage, the Adjudicator was not convinced

that the husband's motives were not to obtain entry to the United

Kingdom. The Adjudicator's decision was confirmed by an Immigration

Appeal Tribunal on 7 March 1989.

The applicant visited her husband in Dubai. A child was born to

the couple in the United Kingdom on 7 November 1989. The husband

returned to India in December 1989 on the death of his mother and

stayed there in view of the ensuing Middle East crisis. He again

applied for a one month entry clearance to the United Kingdom as a

visitor. However, he failed to disclose in his application form his

three previous unsuccessful applications for entry. The Entry

Clearance Officer deemed this to be a deliberate deceit. He therefore

concluded on 13 December 1990 that it was not Mr. Goraniya's intention

merely to enter the United Kingdom as a visitor and admission was

refused. The husband stated that the whole interview with the Entry

Clearance Officer was hostile towards him and he denied refusing to

disclose information when he knew that the Entry Clearance Officer

already had a complete file on him.

The applicant informed the Commission in April 1992 that she was

expecting another baby.

On 8 July 1992 the Government informed the Commission that they

had decided to authorise the issue of entry clearance to the

applicant's husband.

B. The relevant domestic law and practice

By section 3(1)(a) of the Immigration Act 1971,

"Except as otherwise provided by or under this Act,

where a person is not a British citizen -

(a) he shall not enter the United Kingdom unless given

leave to do so in accordance with this Act."

Under section 3(2) of the 1971 Act, the Secretary of State has

a duty to lay before Parliament statements of the rules laid down by

him as to the practice to be followed in the administration of that Act

for regulating the entry into and stay in the United Kingdom of persons

required to have leave to enter.

The relevant rule at the date of Mr. Goraniya's application to

enter the United Kingdom, which is the subject of this application, was

paragraph 46 of the Rules set out in House of Commons paper 169, as

amended by HC 503, which read as follows:

"Spouses

46. A passenger seeking admission to the United Kingdom as the

spouse of a person who is present and settled in the UK, or who

is on the same occasion being admitted for settlement, must hold

a current entry clearance granted for that purpose. An entry

clearance will be refused unless the entry clearance officer is

satisfied:

(a) that the marriage was not entered into primarily to

obtain admission to the UK; and

(b) that each of the parties has the intention of living

permanently with the other as his or her spouse; and

(c) that the parties to the marriage have met; and

(d) that there will be adequate accommodation for the

parties and their dependents without recourse to public

funds in accommodation of their own or which they occupy

themselves; and

(e) that the parties will be able to maintain themselves

and their dependents adequately without recourse to public

funds."

An earlier equivalent of this paragraph was interpreted in the

case of Immigration Appeal Tribunal v. Hoque and Singh [1988] Imm. AR

216. That interpretation may be said to be applicable to the present

rule and may be summarised as follows:

(a) under this paragraph, the onus falls on the applicant to

satisfy the entry clearance officer on the balance of

probabilities that, at the time when the marriage took place, his

primary purpose was not to obtain admission to the United Kingdom

and that the other requirements of the rule are duly satisfied;

(b) in considering the application the entry clearance officer

is not limited to such evidence as the applicant may put before

him, but is entitled to make enquiries of his own and test such

evidence as the applicant chooses to put forward;

(c) in considering the application it is the intention of the

applicant which is the central consideration. However, in

assessing the purposes of the marriage, the intentions of both

parties will be relevant;

(d) the mere fact that an applicant can satisfy the requirement

of paragraph 46(b) does not by itself enable him to satisfy the

requirement of paragraph 46(a). Nevertheless, it must be borne

in mind that paragraph 46(a) is looking at the intention of the

parties at the time when the marriage was entered into;

(e) however, paragraphs (b) and (c) spell out matters which

will in any event be relevant to the proper consideration of

paragraph (a). To that extent an applicant who satisfies the

entry clearance officer of the requirements of (b) and (c) is

better placed to satisfy him of (a). Evidence of intervening

devotion of the parties may make it easier to satisfy the entry

clearance officer that the parties' primary purpose in entering

into the marriage was not the extraneous purpose at which

sub-paragraph (a) is aimed;

(f) the very fact that an applicant is applying for entry under

paragraph 46 usually presupposes that he intends to settle in the

United Kingdom with his wife after the marriage or when he has

received entry clearance, as the case may be. Accordingly, it

is "fatally easy" but wrong to treat an admission on his part

that he seeks to obtain admission to or remain in the United

Kingdom as evidence that this was the primary purpose of the

marriage.

Section 13(1) of the Immigration Act 1971 gives a right of appeal

on fact and law to an Adjudicator. Appeal from an Adjudicator's

decision may be made to an Immigration Appeal Tribunal under section

20 of the 1971 Act. Judicial review of the decision of these appellate

authorities may lie if they or the entry clearance officer concerned

left out of account a factor that should have been taken into account

or took into account a factor they should have ignored, or did not take

the decision according to the requirements of the law.

COMPLAINTS

The applicant complains that the original refusal to allow her

husband to join her in the United Kingdom constituted an unjustified

interference with her right to respect for family life, ensured by

Article 8 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 May 1989 and registered on

6 March 1990. After a preliminary examination of the case by the

Rapporteur, the Commission considered the admissibility of the

application on 4 April 1990. It decided, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on admissibility and merits. The

Government's observations were submitted on 5 September 1990, after two

extensions of the time-limit fixed for this purpose. The applicant

replied, in two stages, on 16 October and 2 November 1990. The

applicant was granted legal aid by the President of the Commission on

22 January 1991.

On 16 January 1991 the applicant informed the Commission that her

husband had been refused entry clearance as a visitor to the United

Kingdom. The Government explained the reasons for that refusal in a

letter dated 25 November 1991.

On 6 December 1991 the Commission decided, in accordance with

Rule 50 para. (a) of the Rules of Procedure, to request the applicant's

comments on the Government's letter of 25 November 1991 and to provide

detailed evidence about her visits to Dubai or India in order to be

with her husband and about the couple's correspondence and telephone

calls. On 6 April 1992 the applicant replied only commenting on the

Government's letter, but not providing any of the evidence which had

been requested.

On 8 July 1992 the Government informed the Commission that they

had decided to authorise the issue of entry clearance to the

applicant's husband. On 22 July 1992 the applicant's representative

informed the Commission that, in the applicant's view, the grant of a

visa to Mr. Goraniya did not invalidate or vitiate the application,

which was therefore maintained.

THE LAW

The applicant complains of the original refusal of entry

clearance to enable her Indian husband to join her in the United

Kingdom and 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."

However the Commission notes that the applicant's husband has now

been issued with entry clearance to join her in the United Kingdom.

In view of this development, the Commission concludes that the grant

of entry clearance to the applicant's husband fully resolves the

factual basis of her application and that the applicant can no longer

claim, under Article 25 (Art. 25) of the Convention, to be a victim of

a violation of the Convention.

It follows that the application is 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 Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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GORANIYA v. THE UNITED KINGDOM

GORANIYA v. THE UNITED KINGDOM

LEXI