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B. v. THE UNITED KINGDOM

Doc ref: 13031/87 • ECHR ID: 001-498

Document date: December 9, 1987

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Cited paragraphs: 0
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Outbound citations: 3

B. v. THE UNITED KINGDOM

Doc ref: 13031/87 • ECHR ID: 001-498

Document date: December 9, 1987

Cited paragraphs only

AS TO THE ADMISSIBILITY

Application No. 13031/87

by T.B.

against the United Kingdom

The European Commission of Human Rights sitting in private on

9 December 1987, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 6 May 1987

by T.B. against the United Kingdom and registered

on 23 June 1987 under file No. 13031/87;

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 Nigerian citizen, born in 1956, who at the

time of lodging his application was resident in London. He is

represented before the Commission by Maria Davidson of the Hackney Law

Centre, London.

The facts of the case, as submitted by the applicant, may be

summarised as follows:

On 9 June 1986 the British immigration authorities refused to

allow the applicant to prolong his stay in the United Kingdom to look

after his child and be with his Nigerian wife, who had study leave in

the United Kingdom until 30 July 1987. Leave was refused because

there is no provision in the relevant Immigration Rules (Statement of

Changes in Immigration Rules HC 169, as amended) permitting a

dependent husband to remain in the United Kingdom with a student

wife. However paragraph 25 of the said rules allows dependent wives

and children to accompany student husbands to the United Kingdom.

The applicant was advised to leave or face deportation.

Moreover criminal proceedings were instituted against him for

overstaying. However, the applicant was not deported, but left the

United Kingdom voluntarily in September 1987 with his family, after

his wife had completed her study course and the charges against him

were dismissed for lack of evidence because he was able to show his

good faith regarding his immigration status.

COMPLAINTS

The applicant complains of discrimination in the Immigration

Rules, which allow the wife of a student husband to remain in the

United Kingdom for the length of the husband's permitted studies, but

not the husband of a student wife. He invokes Articles 8 and 14 of

the Convention.

THE LAW

The applicant has complained to the Commission of discriminatory

Immigration Rules by which student husbands may be accompanied by

their dependent wives and children, but which contain no equivalent

provision for the dependent husbands of student wives. The applicant

was, therefore, refused permission to prolong his stay in order to

care for his child and be with his wife in the United Kingdom where

she had limited study leave.

The applicant has invoked Article 8 (Art. 8) of the Convention which

guarantees, inter alia, the right to respect for family life,

subject to certain limited exceptions, and Article 14 (Art. 14) of the

Convention which guarantees freedom from discrimination in the

securement of Convention rights and freedoms.

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) of the Convention

(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). Moreover,

a difference in treatment between men and women and their entry rights,

enabling them to join spouses lawfully resident in a particular country,

may raise an issue of sexual discrimination in the protection of the

right to respect for family life (Eur. Court H.R., Abdulaziz, Cabales

and Balkandali judgment of 28 May 1985, Series A no. 94, paras. 71-83).

However, the Commission does not find it necessary to

determine whether there has been sexual discrimination, contrary to Article 14

(Art. 14) of the Convention read in conjunction with Article 8 (Art. 8),

entrenched in the Immigration Rules challenged by the applicant, because the

facts of the present case do not show that the applicant actually suffered such

discrimination. Although he was issued with a formal refusal of leave to

remain in June 1986 he was not deported. He was able, therefore, to remain in

the United Kingdom for over a year with his wife and child, until his wife

completed her study course. In these circumstances the Commission concludes

that the applicant may no longer claim to be a victim of a violation of the

Convention and that the application must 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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

LEXI

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