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AS TO THE ADMISSIBILITY OF

Application No. 12408/86

by Mohammed DILAWAR

against the United Kingdom

The European Commission of Human Rights sitting in private

on 12 March 1987, the following members being present:

MM. C. A. NØRGAARD, President

G. SPERDUTI

J. A. FROWEIN

E. BUSUTTIL

G. TENEKIDES

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Sir Basil HALL

Mr. F. MARTINEZ

Mr J. RAYMOND, Deputy 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

12 September 1986 by Mohammed DILAWAR against the United Kingdom and

registered on 19 September 1986 under file No. 12408/86;

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 citizen of Pakistan. He is a farmer by

profession and resides in London. The applicant is represented before

the Commission by Mr J. Fraser, M.P.

The facts, as submitted by the applicant and according to

official documents submitted, may be summarised as follows:

The applicant was admitted to the United Kingdom on 23 December

1984 on a two month visitors' permit to visit his step-brother. He

had informed the Immigration Officer that he lived on the family farm

in Pakistan and was involved in the family business. On 11 February

1985 the applicant applied for a six month extension of stay, stating

that he intended to return to Pakistan thereafter to be married. His

stay was extended.

On 29 March 1985 the applicant married a woman of Pakistan

origin lawfully and permanently settled in the United Kingdom. They

had met at the step-brother's house in the last week of February 1985.

A few days later she had proposed marriage to him and he had accepted

two weeks later. They had decided to marry quickly because they were

in love. The applicant's wife had to await a final divorce decree

from her previous marriage. This decree was made in the last week of

March 1985, the week in which she then immediately married the

applicant. The wife is a social worker by profession; the couple

live in her house, shared by her sister and family, and live off her

income. She first entered the United Kingdom in 1981 and had married

a British citizen, a marriage arranged by her parents. Her husband's

alleged violence caused her to leave him after three months.

On 4 April 1985 the applicant applied for leave to remain in

the United Kingdom on the basis of his marriage. When interviewed by

an Immigration Officer the applicant's wife stated that she did not

wish to return to Pakistan because she preferred her independence.

Her parents, two brothers and three sisters live in Pakistan. The

applicant, when interviewed, stated that he had no qualms breaking

off his previous engagement as he had never met his fiancée. His wife

wished to remain in the United Kingdom and he was happy to do so. He

further stated that his primary reason for the marriage was love of

his wife, who would, as a divorcee, allegedly have had difficulty

re-marrying.

Given the applicant's original assurances on entry that he

would not seek an extension of stay and that he had a fiancée in

Pakistan, the Secretary of State was not satisfied that the

applicant's marriage was not entered into primarily to obtain

settlement and he, therefore, refused the application for leave to

remain, pursuant to the Statement of Changes in Immigration Rules

HC 169 para. 126 (a) which provided as follows:

"Where a man admitted in a temporary capacity marries a

woman settled here, an extension of stay or leave to

remain will not be granted, nor will any time limit on

stay be removed, if there is reason to believe:

(a) that the marriage was entered into primarily to

obtain settlement here; ...." (1)

On appeal the Adjudicator held, on 16 May 1986, that he did

not accept that the applicant and his wife had "been truthful about

the circumstances in which they came to be married". He also did not

accept that a divorced woman would experience difficulties in re-

marrying according to Islamic custom. He held that "no convincing

reason has been advanced for the marriage taking place so hurriedly.

It seems .... that the inference is that the parties wished this to be

accomplished before the applicant's authorised stay in the United

Kingdom expired.... It is the appellant's obligation under the

immigration rules to show on balance of probabilities that his

primary purpose in marrying is not to achieve settlement in the United

Kingdom." The Adjudicator did not find it "credible that about three

months after his arrival in this country as a visitor, being well

established and being engaged to be married in Pakistan, that

applicant> met a woman who proposed marriage to him within a few days

which he instantly accepted without consideration of the circumstances

in which the parties would live. The inference .... is that his

primary purpose in marrying was to achieve settlement in the United

Kingdom. The appeal is therefore dismissed."

This decision was upheld by the Immigration Appeal Tribunal on

13 June 1986.

The couple have apparently had a child in the meantime.

COMPLAINTS

The applicant complains that the refusal of British

immigration authorities to allow him to remain in the United Kingdom

is in breach of Article 12 of the Convention because it prevents the

applicant and his wife from founding a family within the United

Kingdom. It is contended that the effect of the decision is to

require the applicant to return to Pakistan, to which country it is

not practicable for his wife and child to go.

____________

(1) As of 26 August 1985 this provision was replaced by a

new paragraph 124 which reads as follows:

"Where a person with limited leave seeks an extension of

stay on the basis of marriage to a person settled here,

an extension will not be granted unless the Secretary of

State is satisfied:

(a) that the marriage was not entered into primarily to

obtain settlement here ...."

THE LAW

The applicant has complained that the refusal of British

immigration authorities to allow him to remain in the United Kingdom

is in breach of Article 12 (Art. 12) of the Convention.

Article 12 (Art. 12) of the Convention guarantees the right to marry

and found a family. However the applicant has clearly suffered no obstacle,

either in law or in practice, to his marriage or his founding a family. This

aspect of his case is, therefore, manifestly ill-founded within the meaning of

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

The present case nevertheless raises an issue under Article 8

(Art. 8) of the Convention, the relevant part of which provides as follows:

"1. Everyone has the right to respect for his private and 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 in the interests

of national security, public safety or the economic well-being of

the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

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).

In the present case the Commission notes that the applicant

entered the United Kingdom as a visitor, assuring the immigration

authorities that he intended to return to Pakistan to marry and

continue working in his family's farming business. He contracted his

marriage at a time when he was fully aware that his immigration status

was unsettled. There do not appear to be any insurmountable obstacles

to his wife, who is of Pakistani origin, and his child following him

to Pakistan. His wife has only lived in the United Kingdom since 1981

and the child is of an adaptable age. The applicant has not contested

the lawfulness of the immigration authorities' refusal, whose decision

was taken to enforce immigration controls pursuant to the Statement of

Changes in Immigration Rules HC 169.

Thus, in the circumstances of the present case, even though the

refusal of leave to remain constitutes an interference with the

applicant's right to respect for family life under Article 8 para. 1

(Art. 8-1) of the Convention, the Commission must attach significant weight to

the reasons for the refusal. The Commission finds with regard to the

second paragraph of Article 8 (Art. 8) that there are no elements concerning

respect for family life which might outweigh valid considerations

relating to the proper enforcement of immigration controls. In this

respect the Commission would emphasise the close connection between

the policy of immigration control and considerations pertaining to

public order. The Commission is of the opinion, therefore, that the

interference with the applicant's right to respect for family life was

in accordance with the law and justified as being necessary in a

democratic society for the "prevention of disorder" under the second

paragraph of Article 8 (Art. 8), as a legitimate measure of immigration

control.

Accordingly, this aspect of the application 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

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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DILAWAR v. THE UNITED KINGDOM

DILAWAR v. THE UNITED KINGDOM

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