Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18713/91

by R.C.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 1 April 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 9 August 1991 by

R.C. against the United Kingdom and registered on

22 August 1991 under file No. 18713/91;

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 applicant is a British citizen, born in 1968. She resides

in London and is a housewife.

She is represented in the proceedings before the Commission by

Messrs. Salim and Co., solicitors practising in London.

The facts, as submitted by the applicant and as may be determined

from the documents lodged with the application, may be summarised as

follows.

The applicant was born in Bangladesh. She entered the United

Kingdom on 5 June 1980. She became a British citizen by registration

on 16 September 1982.

The applicant's husband A. is a Bangladeshi citizen. He was born

in 1958 in Bangladesh where he is still resident.

On 22 September 1986 the applicant married A. in Bangladesh. The

couple have two children, T. and W., who were born in the United

Kingdom on 20 July 1987 and 2 May 1990 respectively. The children are

British citizens and reside in the United Kingdom with the applicant.

On 14 December 1986 A. submitted an application to the

Immigration Section of the British High Commission at Dhaka for entry

clearance to settle in the United Kingdom as the applicant's husband.

On 9 May 1988 A. was refused entry clearance by a British

clearance officer at Dhaka. The latter was not satisfied that the

marriage was not entered into primarily to allow A.'s admission into

the United Kingdom.

On 7 June 1988 A. entered a notice of appeal against the refusal

of entry decision.

On 9 January 1989, the applicant returned to Bangladesh for nine

months.

On 8 February 1990 A.'s appeal was heard by an Adjudicator.

The Adjudicator's determination is dated 7 March 1990. The

Adjudicator concluded as follows:

"I am faced therefore with the fact that I consider that both the

sponsor and the appellant have lied. I ask myself, given the

fact that I accept that there is a settled marriage between these

two, where does it leave the issue that I have to decide? There

is clear evidence that the sponsor has spent long periods of time

in Bangladesh and was quite prepared to continue to live there,

albeit she says reluctantly because she claims she is constantly

ill there. I accept that she had had illnesses there, but I

would not put it any higher than that. It is a question of this

couple agreeing to marry and then getting married on the basis

that they will, if possible live in this country but if they

can't, they will live in Bangladesh. I agree that this is a

possible interpretation but it is for the appellant to satisfy

me on the balance of probabilities, and looking at all the

circumstances in the round I am not satisfied that at the time

he got married to [the applicant] he did not do so, primarily to

get into this country.

`The appeal is dismissed`".

On 18 April 1990 A. applied for leave to appeal against the

Adjudicator's determination.

On 18 March 1991 the Immigration Appeal Tribunal refused leave

to appeal.

On 4 June 1991 the applicant applied for leave to apply for

judicial review of the determination of the Immigration Appeal

Tribunal.

On 15 July 1991 Mr. Justice Rose dismissed the application for

leave to apply for judicial review.

On 22 July 1991 the applicant was advised by Counsel that she

would have no prospects of obtaining such leave upon renewed

application to the Court of Appeal.

The applicant states that she is unable to live in Bangladesh

because she was constantly ill there and because she believes that the

future of her two children is and will remain in the United Kingdom.

COMPLAINTS

The applicant contends that by refusing A. permission to enter

the United Kingdom as the applicant's husband the United Kingdom

authorities are denying the applicant the right to family life and the

right to found a family. She invokes Articles 8 and 12 of the

Convention. The applicant also contends that paragraph 46 of

HC 169/503 (the relevant immigration rule) is inconsistent with the

United Kingdom's obligations under the Convention and in particular,

under Article 14 thereof. In this respect she submits that in

practice wives find it easier to satisfy immigration authorities than

husbands.

THE LAW

1. The applicant complains of the refusal of British immigration

authorities to allow her husband to enter the United Kingdom to live

with her. The Commission has examined her complaints under Article 8

(Art. 8) of the Convention, the relevant part of which provides as

follows:

"1. Everyone has the right to respect for his ... family life ...

2. There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the

law and is necessary in a democratic society in the interests of

national security, public safety or the economic well-being of

the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

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" (Eur. Court H.R., Abdulaziz, Cabales

and Balkandali judgment of 28 May 1985, Series A No. 94, p. 32, para.

62).

The Commission notes in the present case that the applicant and

her husband have lived together for brief intervals in Bangladesh and

that they now have two children.

The Commission recalls that the State's obligation to admit to

its territory aliens who are relatives of persons resident there may

vary according to the circumstances of the case. The Court 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 present case, it seemed

that the primary purpose of the marriage was to effect the husband's

entry into the United Kingdom.

The Commission observes that the applicant's husband has no

strong ties with the United Kingdom, never having visited it and not

having any relatives there apart from his wife. Moreover there seem

to be no serious obstacles preventing the applicant returning to

Bangladesh, where she had previously lived for twelve years, to live

with her husband. In the light of these circumstances, the Commission

concludes that there has not been an interference with the applicant's

right to respect for family life ensured by Article 8 para. 1

(Art. 8-1) of the Convention and that, accordingly, this complaint must

be rejected as being manifestly ill-founded within the meaning of

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

2. The applicant also complains of the refusal of entry under

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. Finally, the applicant alleges a violation of Article 14

(Art. 14) of the Convention, read in conjunction with

Article 8 (Art. 8), insofar as he complains that the "primary purpose"

restriction contained in the Statement of Changes in Immigration Rules

is discriminatory on the grounds of sex, race or social origin.

Article 14 (Art. 14) of the Convention prohibits discrimination

in the securement of Convention rights and freedoms on any ground such

as race. The Commission notes, however, that paragraph 46 of HC

169/503 prohibits entry clearance being given to foreign spouses on the

ground, inter alia, that the primary purpose of the marriage was to

emigrate to the United Kingdom.

The Commission finds no evidence that such a restriction is

intended to discriminate against persons on the ground of sex, race or

social origin. The provision makes no reference to a particular sex

or racial or social groups and applies to all persons equally who fall

within its scope (cf. aforementioned Abdulaziz, Cabales and Balkandali

judgment, paras. 84-86). The Commission concludes, therefore, that

this aspect of the case is unsubstantiated and 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 by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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C. v. THE UNITED KINGDOM

C. v. THE UNITED KINGDOM

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