Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16382/90

by M.

against the United Kingdom

The European Commission of Human Rights sitting in private on

7 September 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

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.C. GEUS

A.V. ALMEIDA RIBEIRO

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 23 January 1990

by M. against the United Kingdom and registered on 2 April 1990 under

file No. 16382/90;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in Uganda in 1967.

She went to the United Kingdom in 1974 and now lives 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:

On 7 October 1985 the applicant visited India. Whilst there

she met V.M., an Indian citizen and her first cousin. On 14 November

1985, whilst still in India, the parties married.

On 26 November 1985 V.M. applied to the British High

Commission in Bombay for permission to settle in the United Kingdom.

On 3 February 1986 the applicant returned to the United Kingdom.

After two interviews at the British High Commission on

17 March 1987, V.M. was refused permission to settle in the United

Kingdom. On 8 March 1989 the Adjudicator refused his appeal. He

found that "the claim put forward in this appeal is pathetically

shopworn". The Adjudicator made the following factual analysis:

It was alleged that the applicant whilst in India on holiday

met V.M. completely by chance. Although she was in the company of and

staying with his sister he said that he had not previously known of

her arrival or presence. After this first meeting there were two or

three chance meetings following which the applicant requested his

company on outings. About 25 days after her arrival, love having

blossomed, she proposed marriage to him. The parties were married on

14 November 1985 and it was not until afterwards that the country of

the eventual matrimonial home was discussed. He claimed that, until

then, he had not known that the applicant expected to live in the

United Kingdom, and had assumed that they would continue to live in

India. She stayed with him in India until 3 February 1986 during which

time he tried to persuade her to remain in India. However she did not

like the climate and so returned to the United Kingdom. The applicant

was born in Uganda in 1967 and lived there until 1972 when she went to

India. She lived in India until she went to the United Kingdom in

1974. She visited India from 16 January 1977 until 3 November 1977

and again from 7 October 1985 until 3 February 1986. She said she

could not stay there because of the heat and atmosphere. However it

would not have been too hot when she was last there and the last month

might well have been distinctly cool in Perbandar. She told the

Adjudicator that she had been feverish and received various forms of

treatment. However the medical certificate submitted to the

Adjudicator referred to treatment for acute bronchitis from 8 December

1985 until 12 January 1986. The Adjudicator considered that

bronchitis is not fever and is more likely to be exacerbated by the

damp and cold climate in the United Kingdom. He could quite

understand that the applicant preferred to live in England but he

found the reasons she and her husband advanced to be spurious. He

could not believe that a girl who wished to remain in England would

marry without a word being said about the country in which the

matrimonial home would be.

The Adjudicator, in looking at the whole of the evidence,

found that the only reasonable inference was that there had been an

agreement that the applicant went to India with a view to marrying her

relative and that it had all been arranged by the two families. There

was nothing derogatory in this. Indeed, if it had been admitted,

there would have been every reason to suppose that the intention was

that the parties would live together permanently as husband and wife.

As it had been concealed, and lies told, it was reasonable to find

that the husband's primary purpose was admission to the United

Kingdom. Moreover the Adjudicator noted that the husband had obtained

his passport before the marriage. His credibility was not enhanced

when he said that he had not had any purpose in getting it. The

Adjudicator found little evidence of continuing devotion and observed

that the applicant had not returned to India although over 3 years had

passed since the marriage. The applicant said that she could not

afford to travel to India but the Adjudicator was unconvinced, given

that she was willing to support her husband in the United Kingdom.

The Adjudicator concluded that the primary purpose of the marriage was

to effect the husband's entry into the United Kingdom.

On 3 November 1989 the Immigration Appeal Tribunal agreed with

the Adjudicator's findings and upheld his decision.

The applicant was advised that there were no grounds for

judicial review of the Immigration Appeal Tribunal's decision. In any

event the applicant lacked funds to begin such proceedings.

COMPLAINTS

The applicant complains that there has been an interference

with the right to respect for her family life, contrary to Article 8

of the Convention, by the refusal to allow her husband to settle in

the United Kingdom. She complains that she is unable to settle in

India since she has a job and family in the United Kingdom.

THE LAW

The applicant complains of a violation of 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 ... for the prevention of disorder ..."

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. However, the State's obligation to admit to

its territory relatives of settled immigrants 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 25 May 1985, Series A no. 94, p. 32

paras. 62 and 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 instant case, it seemed

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

entry into the United Kingdom. Evidence of a different intention has

not been submitted to the Commission by the applicant.

The Commission further notes the applicant's statement that

she has a job and family in the United Kingdom and that she is unable

to leave them to settle in India. However, the applicant has not

elaborated on her family ties in the United Kingdom. She apparently

has no children there. The husband has no particular ties, whether

family or otherwise, with the United Kingdom other than his marriage

to the applicant. Consequently the Commission considers that there

are no serious obstacles preventing the applicant joining her husband

in India should she wish.

The Commission finds in the circumstances of the case that

there has been no interference with the applicant's right to respect

for her family life within the meaning of Article 8 para. 1 (Art. 8-1)

of the Convention. The case does not therefore disclose any appearance

of a violation of this provision. 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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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M. v. UNITED KINGDOM

M. v. UNITED KINGDOM

LEXI