Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17229/90

by N.A.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 13 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 6 September 1990

by N.A. against the United Kingdom and registered on

27 September 1990 under file No. 17229/90;

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 1957. She lives in

Thornton Heath, Surrey and is represented before the Commission by

Messrs. Hafiz and Company, solicitors practising in London. The facts

of the case, as submitted by the applicant and which may be deduced

from documents submitted with the application, may be summarised as

follows.

The applicant was born in Pakistan. She has been permanently

settled in the United Kingdom since 1979.

In 1982 the applicant married for the first time. A son was born

on 4 November 1982. In November 1983 this marriage was dissolved. The

applicant later married A.who accepts the applicant's son as a child

of the family and treats him as his own child.

A. was born in Pakistan on 9 July 1958. On 11 October 1984 he

was given leave to enter the United Kingdom for one month. After his

arrival he began to follow a computer studies course and on 25 October

1984 he applied for leave to remain in the United Kingdom. He was

granted leave to remain until 31 October 1985. On 4 October 1985 he

applied for an extension of stay so as to enable him to continue his

studies. He was granted an extension of stay until 31 October 1986.

In August 1986 he moved to Dublin for further education.

On 5 December 1986 the applicant married A. in the United

Kingdom. A daughter was born to the applicant and her husband on 24

December 1987.

On 11 March 1987 the applicant made an application to the Home

Office on her husband's behalf for the grant of entry clearance on the

basis of their marriage. The Home Office advised her that as he was

then in Ireland he should make an application for entry clearance at

the British Embassy in Dublin.

On 7 April 1987 A.'s husband made an application to the British

Embassy in Dublin, for entry clearance to come to the United Kingdom

to join the applicant.

The Entry Clearance Officer refused the application on the ground

that the Secretary of State was not satisfied that the marriage was not

entered into primarily to obtain admission to the United Kingdom.

On 8 April 1988 A. lodged a notice of appeal together with a

letter from the applicant's doctor which stated that the applicant is

an epileptic.

The appeal was heard by an adjudicator. During the course of the

hearing the applicant stated, inter alia, that she could not live in

Pakistan because her house and parents were in the United Kingdom and

also because of her illness. The Adjudicator found A.'s credibility

to be seriously in doubt, having regard to the lies which he had told

on entry (for example he had said that he was already married) and the

determination he had shown to settle in the United Kingdom. He also was

not convinced by the evidence of "intervening devotion". It was

concluded therefore that his primary purpose was to obtain settlement

in the United Kingdom.

A. applied to the Immigration Appeal Tribunal for leave to

appeal. The tribunal refused leave on 7 June 1990.

COMPLAINTS

The applicant complains of the refusal of entry of her husband

to settle with herself and her two children in the United Kingdom. She

invokes Articles 5, 8 and 12 in this respect. She also complains that

she does not have an effective remedy as required by Article 13 of the

Convention.

THE LAW

The applicant complains that her husband has been refused

entry to the United Kingdom and invokes in this respect Articles 5, 8

12 and 13 (Art. 5, 8, 12, 13) of the Convention.

The Commission recalls that Article 5 (Art. 5) guarantees the

right to liberty and security of the person. It considers that the

applicant's reference to this provision is misconceived and has

accordingly examined the complaints under Articles 8, 12 and 13

(Art. 8, 12, 13) of the Convention.

1.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 relative 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 notes that at the time of the marriage the

applicant knew that her husband had only been granted temporary

permission to stay as a student. Furthermore the applicant has not

shown that there were serious obstacles to establishing family life in

her husband's home country where she had lived herself from 1957 to

1979.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 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.Article 12 (Art. 12) of the Convention 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.Article 13 (Art. 13) of the Convention 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 a remedy under 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 First ChamberPresident of the First Chamber

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

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N.A. v. THE UNITED KINGDOM

N.A. v. THE UNITED KINGDOM

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