Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14984/89

by Andrea DE ALWIS

against the United Kingdom

The European Commission of Human Rights sitting in private on

5 October 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 March 1989

by Andrea DE ALWIS against the United Kingdom and registered on 10 May

1989 under file No. 14984/89;

Having regard to:

- the report provided for in Rule 47 of the Rules of Procedure

of the Commission;

- the Commission's decision of 11 May 1989 to bring the

application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

3 November 1989 and the observations in reply submitted

by the applicant on 26 February 1990;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of the United Kingdom, born in 1960

in Jamaica, and resident in London. She has lived in the United

Kingdom with her parents since she was five years old. She is a

telephonist by profession and is represented before the Commission by

Messrs. Suriya & Co., Solicitors, London.

The facts of the present case, as submitted by the parties,

may be summarised as follows:

The application arises out of the refusal of British

immigration authorities to allow the applicant's husband to remain in

the United Kingdom with her. Mr. De Alwis is a Sri Lankan citizen of

Sinhalese origin, born in 1959. He first entered the United Kingdom

on 12 August 1983 for one month as a visitor. He told the immigration

officer that he was a car mechanic in Saudi Arabia who had come to

visit friends and that he was single, had no plans for marriage and

had no relatives living in the country. On 8 September 1983, Mr. De

Alwis applied for leave to remain as a student of motor vehicle

engineering at the Willesden College of Technology, sponsored by his

uncle who owned a restaurant in the United Kingdom. He was granted

an extension of stay on this basis until 12 September 1984. On

7 September 1984, he applied to the Home Office for further leave to

remain to continue his studies but this application was refused on

25 July 1985 as he had failed to submit, within a reasonable time,

evidence that he was enrolled on a full-time course of daytime study

in accordance with paragraph 107 of the Immigration Rules (HC 169).

He wrote on 29 August 1985 and again on 18 October 1985 that he had

not been able to enrol for a course because of lack of funds from his

father. He was told by the Home Office on 5 November 1985 that the

Secretary of State was not prepared to reconsider his decision. His

appeal against this decision was dismissed by an adjudicator on

29 January 1986. He was not represented at the hearing as he had not

informed his representatives, at that time the United Kingdom

Immigrants Advisory Service, of his change of address. Leave to

appeal to the Immigration Appeal Tribunal was refused on 24 February

1986 and on 4 March 1986 Mr. De Alwis was advised that he should leave

the country.

Mr. De Alwis did not leave and on 8 September 1986 he was

given the opportunity to put forward any factors which he considered

might militate against deportation. In response, on 7 October 1986

his solicitors applied on his behalf for an extension of stay to study

business management at the London School of Business and Management

Studies. This application was, however, refused on 24 November 1986

because Mr. De Alwis appeared to have enrolled on a course of study

unrelated to his earlier studies. On the same day he was served with

a notice of intention to deport him.

Mr. De Alwis appealed against this decision to an adjudicator

and at the hearing of his appeal on 8 April 1987 he admitted that he

had done nothing between August 1984 and September 1986, that his

studies had ceased due to lack of finance and that he was supported by

his friends and the applicant, who was then his girlfriend, whom he

had known for about two years, having first met her in 1985. This was

the first occasion on which the existence of a relationship with the

applicant had been brought to the Home Office's attention. He said

that he was aware that his earlier appeal had been dismissed and that

the letter warning him that deportation was being considered had

prompted him to start a course of study. The applicant confirmed at

the hearing that she had helped Mr. De Alwis financially and said

that, if his appeal was dismissed, she would marry him before he left

the United Kingdom.

Mr. De Alwis' appeal was dismissed on 6 July 1987. The

adjudicator found that the case did not present any compassionate

circumstances outweighing the public interest justifying the

boyfriend's deportation. (The adjudicator referred to the applicant's

husband as the boyfriend because that was his status when the case had

been heard in early April 1987.) The adjudicator pointed to the

little progress in the boyfriend's studies and found his attitude to

his responsibilities "over-casual". The adjudicator attached little

credibility to the boyfriend's evidence, which he found inconsistent.

He also found that the boyfriend regarded his relationship with the

applicant "as a convenience". He commented that the boyfriend had

been "far from truthful" with the applicant "about his true financial

position" and appeared "quite content to be subsidised by (her) and

his friends without making any real effort himself to pursue and

conclude his studies". Accordingly he dismissed the appeal. This

decision was upheld by the Immigration Appeal Tribunal on 9 September

1987. The couple married on 28 April 1987 and the husband applied

for leave to remain on that basis. The couple were interviewed on

16 February 1988 but on 22 March 1988 the Secretary of State concluded

that there were no sufficient compelling compassionate reasons for

allowing the husband to remain exceptionally. Further representations

were made to the Home Secretary by the applicant's solicitors on

28 July 1988 in the following terms:

"Your decision to deport our client will result in the break

up of a newly married family

(a) as his wife does not wish to go to Sri Lanka through

fear of the ethnic problems in the country. Our client

is frightened to take his wife as he fears that she would

be mistaken for a Sri Lankan Tamil and both may be

persecuted by the Sri Lankan Sinhalese. The fact that he

has married a West Indian lady will cut him off socially

and his parents will not entertain him or his wife. Our

client fears to face his parents, his brother and sisters

and other relatives who will definitely cut him off

socially and these are genuine fears and we would be

grateful that these grounds are considered as exceptional

and compelling. He has no way of going back to Saudi

Arabia because his contract is over and he objects

therefore to his removal to Sri Lanka.

Our client has not been a burden on the tax payers, and

will not be a burden in the future. His wife's people

are not prepared to allow their daughter to go with him

and this would mean the end of their marriage.

Their marriage is genuine. They had been engaged for

about two years prior to marriage and they are devoted

to each other ..."

The Home Secretary replied on 27 September 1988 that no "new

or sufficiently compelling factors" had arisen to cause him to reverse

the deportation decision which would now be enforced. A detention and

deportation order had been issued on 21 September 1988.

Judicial review proceedings were issued by the applicant's

husband on 29 November 1988 and representations were made to the Prime

Minister. She replied on 29 November 1988 upholding the Home

Secretary's decision as follows:

"Mr. De Alwis came to this country in 1983 as a visitor.

He was then allowed to remain as a student but he failed

to produce evidence of studies in accordance with the

Immigration Rules and he admitted doing nothing between

1984 and 1986. He married after deportation proceedings

had been initiated against him and his marriage gives

him no claim to remain.

You suggested that his removal from the United Kingdom

would be contrary to Article 8 of the European Convention

on Human Rights and mention is made of the case of Berrehab.

However, the Home Office say that there is nothing to prevent

Mr. and Mrs. De Alwis living together in Sri Lanka as a

family unit and it is Mr. De Alwis' choice if he goes alone.

Arrangements will be made for Mr. De Alwis' removal from

the United Kingdom and his wife may accompany him at

public expense."

Leave to apply for judicial review was refused on 10 March

1989. The application was not renewed before the Court of Appeal.

In the meantime the applicant had become pregnant. The

applicant's solicitors were advised that the husband's removal would

be deferred until two months after the birth of the child, which was

expected on 20 June 1989. Mr. De Alwis was advised to make

arrangements to leave the country in late August/early September. The

applicant gave birth to a girl on 15 June 1989.

The applicant and her husband claimed political asylum on

11 August 1989. The applicant could not be considered for asylum

under the terms of the 1951 Convention relating to the Status of

Refugees because she is a British citizen and may choose to remain in

the United Kingdom. Mr. De Alwis' claim was considered under the

terms of the Refugee Convention but it was decided in November 1989

that he had not established a well-founded fear of persecution in Sri

Lanka.

COMPLAINTS

The applicant complains that the proposed deportation of her

husband constitutes violations of Articles 8, 13 and 14 of the

Convention. She fears going to Sri Lanka with her husband due to

political and ethnic disturbances there and alleges that no

consideration has been given to these factors by the Home Secretary.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 March 1989 and registered

on 10 May 1989. After a preliminary examination of the case by the

Rapporteur, the Commission considered the admissibility of the

application on 11 May 1989. It decided to bring the application to

the notice of the respondent Government and to invite the parties to

submit written observations on its admissibility and merits. The

Government submitted their observations, after two extensions of the

time limit, on 3 November 1989. The applicant did not comment on

these observations save to remark on 26 February 1990, after the

expiry of the time limit and a reminder by the Secretary to the

Commission, that the applicant maintained her application together

with her original submissions. The applicant was granted free legal

aid for her representation before the Commission on 6 April 1990.

THE LAW

1. The applicant has first complained that the proposed

deportation of her husband to Sri Lanka constitutes a violation of

Article 8 (Art. 8) of the Convention, the relevant part of which reads

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 ... for the prevention of disorder ..."

The Government have contended that the applicant has failed to

exhaust domestic remedies as the application for judicial review was

not renewed before the Court of Appeal in March 1989. Alternatively,

they submitted that the complaint was manifestly ill-founded within

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

The Commission finds that the applicant has complied with

Article 26 (Art. 26) of the Convention. It notes that the applicant

herself could not seek judicial review of the Secretary of State's

deportation order or of the decision of the Immigration Appeal

Tribunal. Only her husband was entitled to do so. Moreover, even

assuming that the husband's remedies are in effect those of the

applicant, it is clear that a renewed application for judicial review

would not have provided an effective means of reviewing the merits of

the decision to deport her husband. The applicant has, therefore,

exhausted all effective remedies at her disposal.

Turning to the substantive question, the Commission considers

that 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).

However, as the Court held in the case of Mmes Abdulaziz,

Balkandali and Cabales, the duties imposed upon States by Article 8

(Art. 8) of the Convention "cannot be considered as extending to a

general obligation ... to respect the choice by married couples of the

country of their matrimonial residence and to accept the non-national

spouses for settlement in that country" (Eur. Court H.R., 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 already been refused permission to

remain in the United Kingdom as a student and that he had unlawfully

stayed on. His acceptance for settlement could not, therefore, be

expected in view of the relevant Immigration Rules. Furthermore the

applicant has not shown that there were obstacles to establishing

family life in her husband's home country. She told the adjudicator

in April 1987 that, although she did not really wish to live in that

country, she would go with her husband if he were deported. The

husband is a member of the Sinhalese majority ethnic group in Sri

Lanka, which although affected by the civil disorder existing in that

country for some years have not been unduly oppressed by it. The

applicant has not said where her husband comes from in Sri Lanka. The

civil strife in that country has varied widely from region to region

and the applicant has not submitted that her husband comes from a

particularly vulnerable area or that his family have been endangered.

In these circumstances the Commission concludes that the

decision to deport the applicant's husband has not failed to respect

the applicant's right to respect for family life, ensured by Article 8

para. 1 (Art. 8-1) 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. The applicant has referred to Articles 13 and 14 (Art. 13, 14)

of the Convention in her application. Article 13 (Art. 13) of the

Convention guarantees the right to an effective domestic remedy for a

Convention breach and Article 14 (Art. 14) prohibits discrimination in

the securement of Convention rights. However, the applicant has made

no submissions in relation to these provisions to indicate how they

could have been breached in her case. Moreover, the Commission finds

no evidence in the case-file which discloses any appearance of a

violation of these provisions of the Convention. Accordingly this

aspect of the case 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 Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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DE ALWIS v. THE UNITED KINGDOM

DE ALWIS v. THE UNITED KINGDOM