AS TO THE ADMISSIBILITY OF

                      Application No. 19153/91

                      by H.M. and J.M.

                      against the United Kingdom

      The European Commission of Human Rights sitting in private on

1 July 1992, the following members being present:

             MM.  F. ERMACORA, Acting President of the First Chamber

                  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 11 June 1991 by

H.M. and J.M. against the United Kingdom and registered on 2 December

1991 under file No. 19153/91;

      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 applicants are father and son.  The first applicant was born

in 1932 in Bangladesh, but now lives in the United Kingdom as a British

citizen.  The second applicant was born in 1961 in Bangladesh.  They

are represented before the Commission by Mr. M. Quayum, a legal adviser

with the Camden Community Law Centre.

      The facts of the present case, as submitted by the applicants'

representative and which may be deduced from documents lodged with the

application, may be summarised as follows:

      The first applicant married a Bangladeshi in 1954 and four

children were born to the couple.  The first of these children is the

second applicant.  In 1963 the first applicant entered the United

Kingdom as the holder of an employment voucher.  By 1 January 1973 he

was settled in the United Kingdom as a Commonwealth citizen.  He became

a British citizen in 1989.

      In 1977 the wife applied, along with the surviving children, for

entry clearance into the United Kingdom.  Before that application had

been considered, she died.  The first applicant re-married four months

later in Bangladesh.  His second wife applied for entry clearance along

with the children of the first marriage.  These applications were

refused in 1979 on the grounds that the applicants were not believed

to be related as claimed.  Appeals were lodged in London in 1981, the

Adjudicator dismissing those of the children, but allowing that of the

second wife.

      Shortly after she had been granted entry clearance, she died.

Three months later the first applicant re-married, and his third wife

applied for entry clearance together with the children again.  Although

referred to as "children", the second applicant by this time was 21

years of age.  After a further interview with an Entry Clearance

Officer, on 14 March 1985, the wife's application was granted but not

those of the children, again because the Officer did not believe that

the applicants were related as claimed.  The second applicant appealed

to the Adjudicator without success.  The Adjudicator found that the

second applicant was age barred from entry.  The Immigration Rules only

allowed dependent, unmarried children, under the age of 18, to join

their parents in the United Kingdom.  He then appealed to the

Immigration Appeal Tribunal, which referred the case back to another

Adjudicator.  The second Adjudicator was invited to consider and

declare upon the question whether the second applicant was the son of

the first, although it was accepted that the appeal could not succeed

because of the age bar.  On 17 February 1989, this Adjudicator also

held that the claimed family relationship between the applicants had

not been established.

      In July 1989 it became possible to conclude from a DNA blood

analysis that the first and second applicants were related as claimed.

Leave to appeal against the refusal to grant entry in 1985 was not

granted by the Immigration Appeal Tribunal (23 August 1989), but the

Tribunal said that it expected the Secretary of State to review the

case and consider whether the second applicant should be admitted

exceptionally outside of the Immigration Rules in the light of the DNA

evidence.

      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."

      In September 1989 representations were made on behalf of the

second applicant, asking the Secretary of State to exercise his

discretion and to permit the second applicant to enter the United

Kingdom.  In a letter dated 13 November 1990 the Secretary of State

declined to exercise his discretion on the grounds that the second

applicant was no longer dependent on the first applicant and that he

had a satisfactory family life in Bangladesh.  The Secretary of State

explained his decision as follows :

      "The Secretary of State notes that is now

      29 years old.  He lives in the same village as his paternal

      grandfather, two paternal uncles and their families and the

      family of a deceased paternal uncle, some of whom live with (the

      second applicant) on the family compound.

      When interviewed by the entry clearance officer, Dhaka, in

      January 1990, said that the family jointly

      owned 3 1/2 hals of land (about 14 acres) as well as buffaloes,

      oxen and cows; that the land produced enough for the family's

      needs; and that he did not receive any remittances from the

      sponsor, .

      then claimed that he did not receive any

      food from the family because they did not like him; and that he

      was forced to beg for food.  He made no reply when the entry

      clearance officer put it to him that this story was not credible.

      When the entry clearance officer further observed that

      second applicant> was well-dressed and wore a gold watch,

      second applicant> claimed that he had borrowed these things.

      When the entry clearance officer asked whether, as the eldest

      son, he stood to inherit the land, first

      confirmed that he would inherit the land and then said that he

      would not get anything because the family did not like him.

      In view of these discrepancies, it is relevant that the sponsor

      gave evidence to an Adjudicator in February

      1989 that lived in a room in his

      grandfather's house and worked in the fields; he made no mention

      of a family dispute.

      Having carefully considered this case, the Secretary of State

      takes the view that has settled into

      independent adult life and is not wholly or mainly dependent on

      , who is 58 years old and at the time of the

      hearing in 1989 was himself in receipt of income support.

      Furthermore, the Secretary of State is not satisfied that any

      genuine dispute exists between and other

      members of his family in Bangladesh, and is not aware of any

      compassionate circumstances which distinguish this case from

      others involving average applicants."

      Leave for judicial review of the Secretary of State's decision

was refused by the High Court on 13 February 1991.  An application was

renewed to the Court of Appeal, and leave was again refused on 22 May

1991.  Before the Court of Appeal the first applicant had argued that,

considering the age and relationship of the applicants at the time of

the first request to enter the United Kingdom when the first applicant

was a child, he had a vested right of entry, by virtue of section 2 of

the Commonwealth Citizens Act 1962, which could not be denied him or

qualified by any lapse of time, or by the erroneous decision of the

United Kingdom Entrance Clearance Officer.  The Court of Appeal

rejected this argument, noting that section 2 of the 1962 Act afforded

a general discretion to withhold admission, qualified by a duty to

permit admission of a limited category of people on condition that they

are able to satisfy the immigration officer that the requisite criteria

have been met.  At the relevant time, the second applicant had not been

able to do that.  It was also submitted before the Court of Appeal that

the Secretary of State ought to have exercised his discretion in favour

of allowing the second applicant to enter.  The Court declined to

exercise their right of limited review of executive actions.  Lord

Justice Mustill stated, "I find it impossible to say that the court

could properly in the exercise of its very limited functions of

judicial review intervene to say that the policy stated and explained

by the Secretary of State is so wrong in principle it could not

reasonably have been taken."

COMPLAINTS

      The applicants contend that Articles 6, 8, 13 and 14 of the

Convention have been violated.

      As regards Article 6 of the Convention, the applicants state that

the appellate and judicial procedures have manifestly failed to offer

any redress.  They state that the practice of the Adjudicators to

proceed in the absence of the appellant, together with the very long

delays in these procedures, violate Article 6.

      As regards Article 8 of the Convention, the applicants submit

that their right to respect for family and private life has been

violated, contrary to paragraph 1 of that Article, with none of the

exceptions of paragraph 2 applying.

      The applicants contend that there is an existing and effective

family life because, although the second applicant is an adult son, he

is dependent upon his father, both for emotional and financial support.

In an Affidavit, the first applicant states that he and his son are in

regular correspondence and that he sends on average £25 a month to his

son.  The applicants note that had it not been for the wrong decision

of the United Kingdom Entrance Clearance Officer in 1979, they would

be enjoying a full family life.  They further contend that the

maintenance of a refusal to admit the second applicant could not be

said to be in pursuance of a legitimate aim such as the "prevention of

... disorder" or the "economic well-being of the country", given that

the original decision was based on a manifest error of fact for which

the domestic law contains no effective remedy.

      As regards Article 13 of the Convention, the applicants point out

that no consideration of the merits of the issue was entertained by the

domestic courts on the application for judicial review.  It is alleged

that the injustice done to them cannot be rectified by a domestic

authority other than by the favourable exercise of the Secretary of

State's discretion, which was refused.

      As regards Article 14 of the Convention, taken together with

Article 8, the applicants contend that the measures enacted and the

procedures which have brought about this violation have been adopted

only in respect of certain nationalities.

THE LAW

1.    The applicants complain that the entry clearance proceedings

before the immigration appellate authorities violated Article 6

(Art. 6) of the Convention.  Article 6 para. 1 (Art. 6-1) of the

Convention guarantees to everyone the right, inter alia, to a fair

hearing within a reasonable time in the determination of his civil

rights and obligations or of any criminal charge against him.

      However, the Commission has consistently held that proceedings

of the kind about which complaint is made in the present case determine

neither civil rights and obligations nor a criminal charge as they

involve the purely discretionary administrative matter of whether to

allow someone to enter or stay in a particular country.  Article 6

para. 1 (Art. 6-1) of the Convention is therefore not applicable to

such proceedings (cf. e.g. mutatis mutandis No. 9285/81, Dec. 6.7.82,

D.R. 29 p. 205; No. 13162/87, Dec. 9.11.87, D.R. 54 p. 211).

Accordingly the Commission must reject this aspect of the application

as being incompatible ratione materiae with the provisions of the

Convention, pursuant to Article 27 para. 2 (Art. 27-2).

2.    The applicants next complain that the refusal of entry clearance

for the second applicant was in breach of Article 8 (Art. 8) of the

Convention, paragraph 1 of which guarantees, inter alia, the right to

respect for family life.  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).

      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 31 year old son 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 applicants' frustration arising

from the initial refusal in 1979 to grant entry clearance before their

relationship could be proved by DNA blood testing.  If they had been

able to prove their relationship earlier the second applicant 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 applicants.  In this connection the

Commission recalls its constant case-law that such verification

procedures, as existed in the United Kingdom in 1979 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

applicants' present day circumstances and the nature of their

relationship now.

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

that the second applicant has strong ties with Bangladesh, where he has

lived all his life.  He seems to be a fully integrated member of his

grandfather's household and his grandfather has a farm which provides

enough for the whole family's needs.  The first applicant's claim that

the second applicant is financially dependent on him has not been

substantiated.  In these circumstances the Commission finds that it has

not been shown that there exists a sufficiently close link between the

applicants which could be deemed to require the protection afforded by

Article 8 (Art. 8) to family life.  It concludes therefore 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 this part of the application

in this respect must be rejected as being manifestly ill-founded,

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

3.    The applicants also complain that they are victims of

discrimination on grounds of national origin, Article 14 (Art. 14) of

the Convention prohibiting any form of discrimination in the securement

of Convention rights, such as the right to respect for family life

under Article 8 (Art. 8).  However, the Commission finds no evidence

in the case-file which might substantiate the applicants' claim.  This

aspect of the case is, therefore, also manifestly ill-founded, within

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

4.    Finally, the applicants complain that they did not have any

effective remedy for their Convention claims.  Article 13 (Art. 13) of

the Convention guarantees effective domestic remedies to everyone whose

Convention rights and freedoms have been violated.

      However, according to established case-law, "Article 13 (Art. 13)

cannot reasonably be interpreted so as to require a remedy in domestic

law in respect of any supposed grievance under the Convention that an

individual may have, no matter how unmeritorious his complaint may be

: 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 the light of the above conclusions that

the applicants' complaints under Articles 6, 8 and 14 (Art. 6, 8, 14)

of the Convention are clearly inadmissible, the Commission finds that

the applicants do not have an arguable claim of a breach of these

provisions which would require a remedy under Article 13 (Art. 13) of

the Convention.  The Commission concludes, therefore, that this part

of the application must also 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                 Acting President of the

        First Chamber                       First Chamber

      (M. de SALVIA)                         (F. ERMACORA)