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FIRST CHAMBER

AS TO THE ADMISSIBILITY OF

Application No. 19186/91

by B.A.

against the United Kingdom

The European Commission of Human Rights sitting in private on

19 February 1992, the following members being present:

MM.J.A. FROWEIN, President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

SirBasil HALL

M.C.L. ROZAKIS

Mrs.J. LIDDY

M.M.P. 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 27 August 1991 by

B.A. against the United Kingdom and registered on 11 December 1991

under file No. 19186/91 ;

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 1964 in Uganda. She

lived in India most of her life until 1985 when she settled as her

father's dependant in the United Kingdom and she resides in Leicester.

She is represented before the Commission by Messrs. Singh & Ruparell,

Solicitors, London.

The facts of the present case, as submitted by the applicant and

which may be deduced from documents lodged with the application, may

be summarised as follows :

The application arises out of the refusal by British immigration

authorities to issue a visa to the applicant's Indian husband for him

to join her in the United Kingdom, because the authorities were not

satisfied that the marriage had not been entered into primarily to

facilitate his immigration to the United Kingdom.

The husband, a struggling farmer in India, sought leave to enter

the United Kingdom as a visitor on 24 September 1986. He told the

immigration officer that he was to visit a cousin, his travel having

been paid by another cousin. He declared that he had no intention to

marry. Whilst on temporary leave he met the applicant. After three

brief meetings she proposed marriage to him and they were married,

without a Hindu religious service, at a registry office on 24 November

1986. She claims not to have known of her husband's precarious

immigration status at that time. The husband did not leave the United

Kingdom when he should have done and he was removed on 6 April 1987.

In September 1987 he applied for entry as the applicant's husband,

which was refused on 30 December 1988. The immigration officer

concerned concluded that he had not been given a wholly frank or

truthful account of the circumstances leading up to the marriage ; the

husband's entry into the United Kingdom was of more importance than the

marriage itself ; the husband had a financial incentive to establish

himself outside India ; coincidentally the applicant's sister had made

a marriage in similar circumstances ; the applicant appeared more

concerned with the material benefits of life in the United Kingdom than

the continuance of her marriage ; no attempt had been made to have a

Hindu religious ceremony in the United Kingdom as would have been

expected of them, given their backgrounds. He was, therefore, not

satisfied that the marriage had not been entered into primarity to

obtain admission to the United Kingdom.

The applicant's husband appealed to an independent Adjudicator

who noted discrepancies in the couple's account of events leading up

to the marriage. He thought the immigration officer's assessment was

well-founded. He also noted the following:

"I note that the sponsor claimed that she

and the appellant had lived as husband and

wife after the marriage but no religious ceremony had taken

place. They are Hindus and the sponsor had not been

brought up in the United Kingdom. She had come to the

United Kingdom in 1985 and had been living in her parents'

household and there is no independent evidence to support

her claim that she and the appellant had been living

together at her parents' house. Experience shows that

Hindu married couples are not expected to live together as

husband and wife before a religious ceremony of marriage. Again

there is no evidence to suggest that the sponsor had travelled

to India since the appellant's departure in April 1987. No

evidence of correspondence has been produced to show that this

marriage is subsisting."

The Adjudicator therefore concluded that there was no evidence of

intervening devotion which might cast light on the nature and purpose

of the marriage and he dismissed the husband's appeal on 28 November

1990. His decision was upheld by an Immigration Appeal Tribunal on

21 June 1991.

COMPLAINTS

The applicant complains that the refusal of a visa to her husband

to enable him to join her in the United Kingdom constitutes an

unjustified interference with her right to respect for family life,

ensured by Article 8 of the Convention.

THE LAW

The applicant complains of the British immigration authorities'

refusal of a visa to her husband to enable him to join her in the

United Kingdom. She invokes Article 8 (Art. 8) of the Convention,

paragraph 1 of which provides, inter alia, that everyone has the right

to respect for family life.

The present case raises an issue under this provision 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 Article 8 (Art. 8)

(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. However, the Commission recalls that the

State's obligation to admit aliens who are relatives of persons

resident in its territory 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).

Concerning the facts of the present case, the Commission has had

regard to the findings of the Adjudicator and his conclusion that, in

the circumstances, it seemed that the primary purpose of the marriage

was to effect the husband's immigration to the United Kingdom. The

Commission notes that there was no independent evidence before the

Adjudicator that the applicant and her husband had ever lived together

or shown any particular devotion to each other since their hastily

concluded marriage. The husband, at least, knew at the time of the

marriage that his immigration status was precarious and that his

acceptance for settlement could not be vouchsafed, especially after he

failed to leave the United Kingdom when he should have done and was

thereafter removed. Furthermore the applicant has not indicated that

there are serious obstacles to establishing family life with her

husband in India where she herself has lived most of her life.

In the light of these circumstances, the Commission concludes

that the decision by the British immigration authorities to refuse the

applicant's husband a visa for entry into the United Kingdom has not

failed to respect the applicant's family life, as guaranteed by Article

8 para. 1 (Art. 8-1) of the Convention. Accordingly the application

is 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.

SecretaryPresident

to the First Chamberof the First Chamber

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

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A. v. THE UNITED KINGDOM

A. v. THE UNITED KINGDOM

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