Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17531/90

by D.G.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 19 February 1992, the following members being present:

MM.J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

SirBasil HALL

Mr.C.L. ROZAKIS

Mrs.J. LIDDY

Mr.M. PELLONPÄÄ

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 19 July 1990 by

D.G. against the United Kingdom and registered on 5 December 1990 under

file No. 17531/90;

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 1961. She resides

in Leicester. She is represented in the proceedings before the

Commission by Messrs. Singh and Ruparell, Solicitors practising in

London.

The facts, as submitted by the applicant and as apparent from the

documents submitted with the application, may be summarised as follows.

The applicant was born in Uganda but left with her family to

settle in India when she was around ten years old. The applicant and

her family lived in India for around twelve years, then moved to settle

in the United Kingdom in December 1983.

In the summer of 1986, the applicant and her mother left for a

holiday in India.

On 7 August 1986 the applicant met her future husband and, one

week later, married him.

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

citizen. He resides in India.

On 11 September 1986 the applicant's husband applied to the

office of the British Deputy High Commissioner in Bombay for a visa

with a view to admission to the United Kingdom for settlement to join

the applicant as her husband.

On 13 September 1986, the applicant flew back to London with her

mother.

The applicant and her husband were interviewed in connection with

his application. On 18 February 1988 a visa officer refused the

application. He was not satisfied that the marriage was not entered

into primarily to obtain admission into the United Kingdom.

On 19 April 1988 the applicant lodged an appeal against this

refusal with the Adjudicator.

At the appeal hearing the applicant stated, inter alia, that she

had left India shortly after the marriage on her doctors advice that

the climate did not suit her. She also stated that she wished to

reside in the United Kingdom. She also made it clear that she did not

intend to reside with her husband except in the United Kingdom.

On 3 April 1990 the Adjudicator dismissed the appeal against the

visa officer's decision. He stated, inter alia:

"I find I am not satisfied that the parties have evinced a

positive intention of living together as man and wife, and

arriving at this finding, I take into account the [applicant's]

occasional visits [one in January 1988 for three months and one

other in March 1990] to stay with her husband...

I find that [the applicant's husband] has failed to satisfy me

on a balance of possibilities that his marriage to [the

applicant] was not entered into primarily to obtain admission to

the United Kingdom".

The Adjudicator also found no substance in the applicant's

allegations that her health prevented her living in India.

On 17 April 1990 the applicant applied for leave to appeal

against the Adjudicator's determination. By written decision dated

13 July 1990 the President of the Immigration Appeal Tribunal refused

leave to appeal.

Subsequently, counsel advised that an application for leave to

apply for judicial review would not be granted.

In about March 1990, the applicant visited her husband in India.

In or about January 1991, the applicant gave birth to a child. She is

now pregnant again.

COMPLAINTS

The applicant complains that she has been separated from her

husband. The applicant states that although she can go to India to

reside with her husband she is unable to leave the United Kingdom where

she has a house, job and funds to support herself and her widowed

mother and all her other relatives.

THE LAW

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 India and that

they apparently now have a child.

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 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 finds that the British immigration authorities had

reasonable grounds to believe that originally the main purpose of the

husband's marriage to the applicant, a British citizen, was to emigrate

to the United Kingdom. The Commission also 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 India, 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, the case

must 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 ChamberPresident of the First Chamber

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

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G. v. THE UNITED KINGDOM

G. v. THE UNITED KINGDOM

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