Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20118/92

by F.P.

against the United Kingdom

The European Commission of Human Rights sitting in private on

12 October 1992, the following members being present:

MM. S. TRECHSEL, Acting President

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. K. ROGGE, Deputy to the Secretary to the Commission,

assisted by Mr. A. GRAD

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 February 1992

by F.P. against the United Kingdom and registered on 15 June 1992 under

file No. 20118/92;

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 an Indian national; he was born in 1967. He is

represented in the proceedings before the Commission by Mr. Norman H.

Barnett & 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 wife of the applicant (Z.) is a British citizen. She was born in

India in 1961 and emigrated from India to the United Kingdom at the age of

16. She had a previous marriage which was dissolved in 1982. She had been

introduced to the applicant, six years her junior, on her visit to India in

January 1986, and they married within two months on 28 March 1986. The

couple lived together until 5 October 1986 when Z. returned to the United

Kingdom. She again lived with the applicant from 21 May 1989 until 23 July

1990 in India before returning to the United Kingdom.

There was continuing correspondence and telephone contact thereafter.

On 9 November 1990 their daughter was born with certain medical

complications, and therefore was transferred to a special baby care unit.

This caused Z., who is permanently suffering from epilepsy and hysteria,

considerable distress. In this connection she stated that she needed the

help of her husband.

The brother of Z. lives with his family in the United Kingdom and is

a shop owner. He offered both accommodation and employment to the

applicant to enable him to settle in the United Kingdom.

The applicant applied for entry clearance immediately after the

marriage, but his application was refused, as was his appeal to an

Adjudicator on 31 July 1989, because he was deemed to have contracted the

marriage for the primary purpose of immigrating to the United Kingdom in

contravention of para. 50 (a) of the Immigration Rules (H C 388).

On 7 July 1989 the applicant lodged a further application. The

applicant and Z. were interviewed by an Entry Clearance Officer, but the

application was refused on the same grounds as before. The applicant's

credibility was deemed suspect as his answers to questions were often

contradictory and he admitted to the Officer that he married mainly to

obtain entry to the United Kingdom. The wife, when interviewed, first of

all agreed that she and her husband had had no opportunity to fall in love

and went on to say that she had been divorced in 1982 and had come to India

"to marry anybody. I saw him, so I think I can marry him". Asked if she

knew why the applicant should want to marry her (she being six years his

senior) she said she did not know. Asked if it was possible one reason was

to enable him to go to the United Kingdom, she replied "Maybe, maybe not".

She went on to say that she did not know why the applicant wanted to marry

her but agreed he would be better off in the United Kingdom and she had

told him so.

The applicant's appeal to an Adjudicator was dismissed on

20 August 1991 as on the evidence it was difficult to see how the Entry

Clearance Officer could have concluded otherwise than he did. The

Adjudicator's decision was upheld by an Immigration Appeal Tribunal on

12 December 1991.

COMPLAINTS

The applicant complains that his rights under Article 8 of the

Convention have been violated.

THE LAW

The applicant complains of the refusal of his entry to the United

Kingdom and 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 present case raises an issue under Article 8 (Art. 8) of the

Convention, for, 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 this provision (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).

Article 8 (Art. 8) of the Convention 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 Z. have lived

together in India, namely six months in 1986 and 14 months in 1989-90 and

that they now have a child, who has not yet been seen by her father.

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. The Court has held that

Article 8 (Art. 8) does not impose a general obligation on States to

respect the choice of residence of a married couple or to accept the non-

national spouse for settlement in the State concerned (Eur. Court H.R.,

Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94,

p. 34, para. 68).

The Commission has had regard to the findings of fact by the

Adjudicator, upheld by 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 applicant's entry

into the United Kingdom. This is borne out by the interviews of the

applicant and his wife with the Entry Clearance Officer.

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

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

India, from where his wife originates and where she lived until she was

16 years of age.

In these circumstances the Commission concludes that the decision to

refuse the applicant entry into the United Kingdom has not failed to

respect his 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.

Deputy to the Secretary to Acting President of

the Commission the Commission

K. ROGGE S. TRECHSEL

Menu

F.P. v. THE UNITED KINGDOM

F.P. v. THE UNITED KINGDOM

LEXI