Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19788/92

by S.S.

against the United Kingdom

The European Commission of Human Rights sitting in private

on

6 July 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

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 9 February

1992 by S.S. against the United Kingdom and registered on 31

March 1992 under file No. 19788/92;

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 citizen born in 1963 in Kenya and

resident in Edgware. She is represented by Hafiz and Co.,

solicitors practising in Tooting. The facts as presented by the

applicant may be summarised as follows.

The applicant settled in the United Kingdom when she was two

years old.

In 1985, the applicant met S., a citizen of India on a

visit to the United Kingdom. He returned to India on 5 March

1986 and applied to enter as the applicant's fiancé. Following

the refusal of entry, the applicant went to India in October

1987. Before she left, she sold her car, closed her building

society account and resigned from her job.

On 24 November 1987 the applicant and S. were married in

India. The applicant initially had a three month residential

permit to stay in India, to which she obtained a one month

extension. She alleges that when she applied for indefinite leave

to stay she was told to apply from the United Kingdom.

On 26 January 1988, the applicant returned to the United

Kingdom for medical treatment. As a child she had suffered from

polio and in India she had developed painful swelling in the area

of previous surgery. Two doctors who have treated her indicate

that this "plate reaction" may be caused by a hot climate.

S. applied for entry to the United Kingdom as the

applicant's husband. His application was refused by a visa

officer who was not satisfied that the primary purpose of the

marriage was not to obtain entry to the United Kingdom. The

officer referred in particular to the fact that in interview S.

had stated that he had entered into the marriage to gain entry

to the United Kingdom for economic purposes.

His appeal to the Adjudicator was dismissed on 17 May 1990.

While the Adjudicator accepted that the applicant was unwell in

India, she found that she had never seriously intended to stay

there since she only went on a three month visa. She considered

that S.'s replies in interview led to the conclusion that he had

married the applicant for settlement in the United Kingdom and

that he had known when marrying that there was no question of

them living in India.

Leave to appeal was refused by the Immigration Appeal

Tribunal on 8 November 1990.

On 9 April 1991, the High Court refused leave to apply for

judicial review of the decisions of the Adjudicator and the

Immigration Appeal Tribunal. A renewed application to the Court

of Appeal was refused on 1 October 1991.

COMPLAINTS

The applicant submits that she is prevented from living with

her husband in India due to her health. She considers that the

refusal of entry to her husband violates as a result her rights

under Articles 8, 12 and 13 of the Convention.

THE LAW

1. The applicant complains that her husband has been refused

entry to the United Kingdom contrary to 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 yet been fully established.

The Commission recalls 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 and her conclusion that, in light of the interviews

with S. the primary purpose of the marriage was to effect the

husband's entry into the United Kingdom for economic purposes.

In these circumstances the Commission concludes that the

decision to refuse entry to the applicant's husband 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 this aspect of the case is manifestly ill-founded

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

Convention.

2. The applicant complains that the refusal of entry violates

Article 12 (Art. 12) of the Convention which provides as follows:

"Men and women of marriageable age have the right to

marry and to found a family, according to the national

law governing the exercise of this right."

The Commission notes that the applicant married her husband

unhindered. Furthermore, for the same reasons given above in

respect of Article 8 (Art. 8) of the Convention, the Commission

finds that Article 12 (Art. 12) of the Convention also does not

impose a general obligation upon Contracting States to respect

a married couple's choice of the place where they wish to found

a family or to accept non-national spouses for settlement to

facilitate that choice. It follows that this aspect of the case

is also manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

3. The applicant also complains under Article 13 (Art. 13) of

the Convention which 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 Commission establishes, however, that

Article 13 (Art. 13) does not require a remedy in domestic law

for all claims alleging a violation of the law. 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 conclusions that the

applicant's complaints under Articles 8 and 12 (Art. 8, 12) 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 Article 13 (Art. 13) of

the Convention. This part of the application must therefore be

rejected as 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. KRUGER) (C. A. NORGAARD)

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S. V. THE UNITED KINGDOM

S. V. THE UNITED KINGDOM