AS TO THE ADMISSIBILITY OF

Application No. 14830/89

by Abdullah YOUSEF

against the United Kingdom

        The European Commission of Human Rights sitting in private on

8 November 1990, the following members being present:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     F. ERMACORA

                     G. SPERDUTI

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A. WEITZEL

                     H.G. SCHERMERS

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                Mr.  C.L. ROZAKIS

                Mrs.  J. LIDDY

                MM.  J.C. GEUS

                     A.V. ALMEIDA RIBEIRO

                     M.P. PELLONPÄÄ

                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 7 February 1989

by Abdullah YOUSEF against the United Kingdom and registered on 28

March 1989 under file No. 14830/89;

        Having regard to:

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

        of the Commission;

     -  the Commission's decision of 6 July 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 20 December 1989 and the observations in reply

        submitted by the applicant on 6 March 1990;

     -  the oral hearing held on 8 November 1990;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a citizen of Kuwait, born in 1960 and now

resident in Sajat, Kuwait.  He is represented before the Commission by

Mr. P. Simm, Solicitor, of the Liverpool Law Centre.

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

may be summarised as follows:

A.      The particular facts of the case

        The applicant first entered the United Kingdom in 1978 for the

purpose of nautical studies under the sponsorship of his employers,

the United Arab Shipping Company.  He returned on several occasions

between 1979 and 1985 in connection with his studies and training.  On

6 July 1985 the applicant married a British citizen.  On the basis of

this marriage he was initially granted leave to remain until 13 August

1986.  A child of the marriage, Tariq, was born on 15 March 1986.

        On 4 February 1986 the applicant was convicted of an offence

under the Theft Act 1968 (Abstracting electricity - fined £100).  He

was advised on 20 August 1986 that this conviction would be taken into

account in considering any future application for an extension of his

stay.

        On 12 August 1986, he re-applied at the immigration office in

Liverpool for further leave to remain as the husband of a British

citizen.  When his wife was interviewed, however, she said that she

intended to divorce him for physical and mental cruelty (treatment

denied by the applicant);  she also intended seeking an injunction to

prevent the applicant having access to her and her son.  When the

applicant was interviewed he stated that he was unemployed, that he

had not worked for the United Arab Shipping Company for two years,

that he had failed his studies and would not pursue them further and

that the family still lived together, the mortgage and other living

expenses being met from public funds.

        While the applicant's re-application was being considered his

wife informed the immigration officer that she had decided not to

proceed with plans to divorce her husband but to make a final attempt

at reconciliation.  She added, however, that she would proceed with a

divorce if matters were again to become unsatisfactory.  Given his

wife's statements it was decided to grant the applicant a further

period of leave to remain until 13 August 1987.

        The applicant travelled to Spain on 1 August 1987.  While he

was abroad, his wife attended the Immigration Office at Liverpool and

said that her husband was due to return on 8 August.  She wished

action to be taken to prevent her husband gaining access to herself

and their child, Tariq.  She stated that she intended to divorce him,

because of his violence towards her, and to leave their home for an

address which she did not wish to disclose before her husband

returned.  She added that the home was liable to be repossessed by the

applicant's debtors.  She subsequently informed the immigration

officer that she was not certain that she did not want to see her

husband as she had yet to discuss divorce with him and had been unable

to secure alternative accommodation.  The applicant claims that his

wife was pressured by immigration officers, for racist reasons, to

take this stance.  The applicant arrived at Manchester Airport on 8

August 1987 and sought leave to enter to rejoin his wife.  He was

granted temporary admission pending inquiries and, for the convenience

of all parties, responsibility for the case was transferred to the

Immigration Office at Liverpool.

        On 1 October 1987, the wife was interviewed and said that her

marriage to the applicant was definitely over and that she had now

left their home.  Her solicitors later provided a letter confirming

that she had filed a divorce petition on 23 September and that their

instructions were to pursue it.  On 6 October, the immigration officer

interviewed the applicant.  He said that his wife was still at their

home.  When his wife's earlier statement to the contrary was put to

him he replied, "She told me she would come back.  I was told by my

solicitors to (say) that she was living with me."  The applicant also

said that he was unemployed with no source of income.

        The immigration officer then considered the facts of the case:

The applicant had sought entry in order to rejoin his wife.  It was

evident, however, that his marriage no longer subsisted and,

therefore, that each of the parties did not have the intention of

living permanently with the other as a spouse.  The officer was

therefore not satisfied that the applicant qualified for admission

under the Immigration Rules and accordingly refused him leave to enter

on 6 October 1987.  While in detention pending arrangements for his

return to Kuwait the applicant took an overdose of paracetamol tablets

and he was immediately taken by ambulance to hospital where he was

admitted for observation until 12 October.  The Hospital Registrar

opined that there was no evidence to suggest mental disorder or any

lasting ill effects.  The applicant was granted further temporary

admission and his solicitors applied for judicial review of the

immigration officer's decision.  This application was refused by the

High Court on 3 November 1987.  Counsel advised against an appeal to

the Court of Appeal, thus a renewed application for leave was

abandoned.

        The applicant had a strong loving relationship with his son

and sought his custody in the divorce proceedings.  During those

proceedings the wife openly recognised the good relationship between

the father and the child.  Accordingly, interim care and control were

given to the wife, with regular short access visits for the applicant,

supervised by the social services.  The applicant exercised supervised

access to Tariq once a week for an hour at a time between November

1987 and October 1988 and then on five occasions under the same

conditions between 1 November 1988 and 23 January 1989.  The nature

of the access was restricted because of the impending threat of the

applicant's deportation and the wife's fear that in those

circumstances the applicant might abscond with the child.  The

applicant apparently conceded that if he had had freer access to

Tariq he would have absconded with him.

        A matrimonial court welfare report dated 10 March 1988 talked

of "a strong bond that exists between father and son".  A further

report dated 26 October 1988 talked of the child, Tariq, "relating in

a warm and loving way to both" of his parents.  The final welfare

report of 23 January 1989 not only talked of a "strong and

affectionate bond between the father and the child", but clearly

stated that it would have been beneficial to the child if that could

be maintained in more normal circumstances, i.e. without the threat of

the applicant's removal from the United Kingdom which effectively

prevented his reasonable access to the child.

        On 30 January 1989 the matrimonial court (Liverpool County

Court) held that it was in the best interests of the child to have

access to his "caring and loving" father, but no access was ordered

because of the applicant's pending removal from the United Kingdom.

The County Court envisaged limited access on agreement by the parents

should the applicant return.  On 25 January 1989 the Minister of State

had rejected representations made in November 1988 that the applicant

be allowed to remain in the United Kingdom to ensure access to his son

on the basis of the judgment of the European Court of Human Rights in

the Berrehab case (judgment of 21 June 1988, Series A no. 138).

        In a letter of 30 November 1988, the applicant's

representatives at that time, the Liverpool Law Centre, informed the

Home Office for the first time that he had a strong and loving

relationship with another British citizen by whom he had had a child,

Leon, born on 29 August 1987.  According to the Law Centre, the

relationship between this lady and the applicant, begun in November

1986, had not developed into a fuller loving relationship until the

applicant and his wife had separated.  The Secretary of State was

urged to allow the applicant to remain to continue the relationship

for the benefit of this child.  The Minister of State rejected these

new elements.  He considered that it would be "quite wrong" to allow

the applicant to transfer to the relationship with the other British

woman all the arguments he had been pursuing so vigorously to be

admitted in order to stay with his wife.  He insisted that the

applicant leave the country.  He found the applicant's case

distinguishable from the Berrehab judgment by which, anyway, he

considered himself not bound.  The applicant left the United Kingdom

pursuant to the Secretary of State's removal directions on 24 February

1989.        Since leaving the United Kingdom the applicant has had

virtually no contact with his first son, Tariq.  He claims to have

sent the child several cards, but his ex-wife has stated that only one

letter, written a month after his departure, has been received.  He

has not applied for leave to enter as a visitor to see Tariq.

B.      The relevant domestic law and practice

        Section 3(1)(a) of the Immigration Act 1971 prohibits the

unauthorised entry of anyone other than British citizens into the

United Kingdom.  Leave of entry may be given by immigration officers

(section 4(1) of the 1971 Act) to spouses provided, inter alia, that

the couple has the intention of living permanently together and that

they can maintain themselves without recourse to public funds

(paragraph 46 ("spouses") of the Statement of Changes in Immigration

Rules HC 169, as amended by paragraph 10 of HC 503).  Section 13 of

the 1971 Act provides, inter alia, for a right of appeal to an

independent Adjudicator against a refusal of entry, which appeal must

be lodged from outside United Kingdom territory.  Whilst an

Adjudicator's task is principally to ensure the lawful application of

the Immigration Rules, he may also make recommendations that matters

falling entirely within the Secretary of State's discretion be decided

differently.  Such recommendations are sometimes followed.  Judicial

review of ministerial decisions may be granted and the offending

decision quashed if it could be shown to be illegal, improper or

irrational.

COMPLAINTS

        The applicant complains that the refusal to allow him to

re-enter the United Kingdom in order to facilitate his access to his

eldest son, Tariq, was in breach of Article 8 of the Convention.  He

further complains that he had no effective domestic remedy at his

disposal, under Article 13 of the Convention, for his Article 8

claim.  (He also complained originally that his rights under Article 6

had been violated, but he has not pursued this matter in subsequent

written and oral submissions.)

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 7 February 1989 and

registered on 28 March 1989.  After a preliminary examination of the

case by the Rapporteur, the Commission considered the admissibility of

the application on 6 July 1989.  It decided to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.  The

Government's observations were submitted, after an extension of the

time limit, on 20 December 1989, to which the applicant replied on

6 March 1990.

        On 7 September 1990 the Commission decided to invite the

parties to present their submissions orally at a hearing.  That

hearing, on admissibility and merits, was held on 8 November 1990.

THE LAW

        The applicant has complained that the refusal by British

immigration authorities to allow him to re-enter the United Kingdom in

order to facilitate access to his son, Tariq, was in breach of

Articles 8 (Art. 8) and 13 (Art. 13) of the Convention.

        Article 8 (Art. 8) of the Convention guarantees the right to

respect for family life, subject to certain exceptions, including

measures which may be necessary in a democratic society for the

prevention of disorder.  Article 13 (Art.1 3) of the Convention

requires that effective domestic remedies be available for

Convention breaches.

        The applicant claimed, inter alia, that the refusal to allow

him to re-enter the United Kingdom severed the bond he had with his

first child and constituted an unjustified interference with his right

to respect for family life.  He also contended that no adequate

remedies were available to him under United Kingdom immigration law,

which does not permit the grant of leave to enter or remain in the

country solely on the basis of a relationship between a parent and a

child.

        The Government submitted, inter alia, that the applicant had

not exhausted domestic remedies and that the application was anyway

manifestly ill-founded because the applicant had had only limited

contact with his first child before actually leaving the United

Kingdom and, according to the applicant's ex-wife, he had made no

attempt to maintain contact with his son since leaving the United

Kingdom, apart from one letter in March 1989.  The Government also

argued that the applicant could have applied to return to the United

Kingdom either as a visitor or as the fiancé of the mother of his

second child.  Thus, either the refusal to allow the applicant to

enter the United Kingdom did not constitute an interference with

his right to respect for family or, if it did, the interference was

justified for the prevention of disorder, within the meaning of

Article 8 para. 2 (Art. 8-2) of the Convention, which notion

encompasses the effective enforcement of immigration controls.

        The Commission has first examined whether the applicant has

complied with the exhaustion of domestic remedies rule laid down in

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

immigration law makes no provision for the grant of leave to enter or

remain in the country in order to facilitate a parent's access to his

child.  The applicant's leave to remain in the United Kingdom had been

based on the fact of his marriage and the continued cohabitation of

the couple.  Once the marriage broke down and the couple had separated

the applicant no longer had any entitlement to stay, or, once out of

the country, to re-enter.  The refusal to allow him to re-enter the

United Kingdom was, therefore, lawful, as was conceded by the

applicant.  He, therefore, had no basis in law to challenge that

decision effectively before an Adjudicator.  As regards judicial

review, the Commission observes that the decision whether the

applicant was to be allowed to stay in order to have access to his son

fell within the prerogative discretion of the Secretary of State.

However, the Secretary of State refused to allow the applicant to

re-enter on a compassionate basis.  No evidence has been put before the

Commission which might indicate the possibility of an effective appeal

by way of judicial review against this refusal.  Accordingly, the

Commission finds that the applicant has complied with the requirements

of Article 26 (Art. 26) of the Convention.

        The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and fact under

the Convention, the determination of which should depend on an

examination of the merits of the application as a whole.  The

Commission concludes, therefore, that the application is not

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.  No other grounds for declaring it

inadmissible have been established.

        For these reasons, the Commission, by a majority,

        DECLARES THE APPLICATION ADMISSIBLE.

Deputy Secretary to the Commission         President of the Commission

           (J. RAYMOND)                          (C.A. NØRGAARD)