Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16324/90

by S.

against the United Kingdom

The European Commission of Human Rights sitting in private on

6 September 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

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

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 13 October 1989

by S. against the United Kingdom and registered on 19 March 1990

under file No. 16324/90;

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 1959, living in

Leicester. She is represented before the Commission by Singh and

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 applicant was originally married to H.V.. On 5 December

1984 the couple divorced.

In 1986 the applicant went to India on holiday with her mother

and some friends. In India the applicant met V.S., a citizen of

India. On 30 March 1986, whilst still in India, the applicant married

him. She then returned to the United Kingdom for medical reasons.

The husband applied for an entry visa in order to settle in the United

Kingdom to join his wife. On 3 July 1987 his application was

refused. His appeal to the Adjudicator was heard on 27 January 1989.

The Adjudicator held, inter alia, as follows:

"I am faced with a claim that is inherently improbable.

I am asked to accept that (the applicant) went to India

on the spur of the moment with nothing in mind but a

holiday. Whilst there the appellant (the husband) came

to visit her as he was acquainted with her friend's brother.

After the shortest of acquaintances she fell in love and

proposed to him. He accepted and so in a short time they

were married. It had been her intention to remain in India

after marriage but she became ill and had to return (to

England). The marriage had not been arranged and arose

entirely because love had blossomed virtually overnight.

(The applicant) is a divorcee some three years older than

the appellant. It was strenuously denied that the marriage

had been contemplated before (the applicant) went to India

and that she had gone there to meet the appellant. For a

marriage to arise in this way in India, and indeed in many

other places, would be rare.

I heard evidence from (the applicant) and found her to

have little credibility ... She was asked how long before

she went to India had it been planned that she would go

there. She replied 'It was not planned, all of a sudden

my friends told me they were going to India and I could go

with them if I wanted as I had not been there before.' ...

From the fact of her having obtained a visa it is clear

that the visit must have been in contemplation for at least

5 or 6 weeks before leaving. This was put to her and she

said 'I just guessed a week or a week and a half. I thought

it would take a week and a half.' It was put to her that

she applied for her visa about six weeks before she went.

She replied with a patent lack of credibility 'I went there

all of a sudden ...' Nothing was said about how her mother

came to be included in these arrangements which were made

'all of a sudden'. I totally reject this evidence and must

question why it has been fabricated. The only possible

explanation is that she was trying to conceal that she was

going to India to meet the appellant with the possibility

of a marriage to him in mind.

It was put forward that the sponsor had to leave India

because of extreme ill-health and for this reason finds it

impossible to return there to live. A report from a doctor

in India certified that the sponsor 'was suffering from acute

gastroenuterits (sic) and hyperacidity. She had such type

of attack off and on during her stay due to the hot temperate

climate of this place. She was under my care and treatment

from 3.4.86 to 15.5.86 (both days inclusive).' This report

clearly carries no weight. The maladies one assumes the

doctor intended cannot be laid at the door of a 'hot

temperate climate' or even entirely caused by an intemperate

one. I note that the report was dated 16.5.86 and cannot

but wonder why it was obtained before a visa to come here

was applied for ...

In cross-examination she was completely evasive and refused

to be specific about her alleged illness in India ... With

this manifestly unsatisfactory evidence I cannot possibly

accept that illness impelled (the applicant) to return

home. Clearly she went intending to stay for three months

and came back here in approximately that period. I can

well appreciate her preference for living here. But as

she has advanced spurious reasons her credibility is

again seen to be of the lowest ...

The account of the courtship (which on the evidence does

not deserve this appellation) leading to the marriage is

riddled with inconsistency and improbability. As the visa

officer remarked were there a romance, as alleged, then

certain salient features should have been recalled with

clarity. In particular I find the difference between the

(couple) as to whether he assented to her proposal

immediately or a few days later to be particularly

significant. Her evidence that she proposed on the third

meeting, in none of which was there any conversation beyond

an exchange of conventional greetings, I found utterly

unacceptable. In addition there were the discrepancies as

to whether the appellant's father had been consulted, the

timing of the meetings, (the applicant's) outings whilst in

India and the effect of the uncle's accident ... I also

note that she made no effort whatsoever to extend her

permitted stay in India before the alleged illness had

become so severe that she had to come back here. In

addition I cannot ignore the fact that the appellant has

married a divorcee older than himself and the proposed

breach of custom by the sponsor not joining and becoming

part of his family ... I find that the appellant has failed

completely to discharge the onus of showing that the

marriage was not entered into primarily to obtain (his)

admission to the United Kingdom."

On 21 August 1989 the Immigration Appeal Tribunal upheld the

Adjudicator's 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 her 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

with her husband since her family live in England.

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. Nevertheless, the Commission notes that the

applicant and her husband have not lived together for any significant

period in India despite their four year marriage.

The Commission recalls that 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 obligaton 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 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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S. v. UNITED KINGDOM

S. v. UNITED KINGDOM

LEXI