AS TO THE ADMISSIBILITY OF

Application No. 14507/89

by B.

against the United Kingdom

        The European Commission of Human Rights sitting in private on

2 April 1990, the following members being present:

                MM.  C.A. NØRGAARD, President

                     S. TRECHSEL

                     G. SPERDUTI

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     J. CAMPINOS

                     H. VANDENBERGHE

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mr.  L. LOUCAIDES

                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 20 October 1988

by B. against the United Kingdom and registered on 5 January

1989 under file No. 14507/89;

        Having regard to:

     -  reports provided for in Rule 40 of the Rules of Procedure of

        the Commission;

     -  the Commission's decision of 20 January 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

        5 April 1989 and the observations in reply submitted

        by the applicant on 7 August 1989;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a citizen of Bangladesh, born in 1959.  She

was resident in London when introducing the application and now

resides in Bangladesh.  She is represented before the Commission by

Ms.  Jaqueline Bhabha, Solicitor, of the North Islington Law Centre,

London.

        The facts of the case, as submitted by the parties, and which

may be deduced from documents included in the application, may be

summarised as follows:

        The applicant married a citizen of Bangladesh in that country

in 1975.  The applicant had always lived in Bangladesh but her husband

lived in the United Kingdom for some years before the marriage.  For

some four years, until 1979, she lived at his family's home.  The

husband was living in England but visited Bangladesh from time to time

and a son was born to the couple on 22 September 1976 and a daughter

on 12 August 1979.  Just before the daughter's birth the couple

separated after the husband had purported to divorce the applicant by

pronouncing the "Talak", according to Muslim law, on one of his trips

home.  The applicant claims that she is not validly divorced from her

husband, but she was nevertheless obliged to return to her brother's

household.  Until that time she had had full care of the son.  After

the separation the son spent part of his time with her and part with

her husband's family.  Her main financial support was from her own

father and brother.  She also has a married sister in Bangladesh and a

married sister in the United Kingdom.  The applicant is illiterate.

        In or about 1981 or 1982 the son started school in the village

where his father's family lived, thus spending more time with the

father's family, except for weekend and holiday visits to the

applicant.  The daughter was in the applicant's care exclusively until

1986, after which she also went to the same school as her brother and

lived with her paternal grandparents.  The applicant remained in

regular contact with the children and paid for their books and

clothes.

        In March 1984 the husband was registered as a British citizen

and in August 1985 remarried.  At this stage the applicant apparently

received formal written notice of her divorce.  In 1986 the husband

applied for entry clearance for the two children to join him in the

United Kingdom with his second wife.  The applicant had purportedly

signed an affidavit relinquishing her rights to the children.  She

then wrote to the British Entry Clearance Officer in Dhaka that she

and the children all wanted to go to the United Kingdom as she could

not live without them.  However a month later, on 29 November 1986,

she allegedly wrote supporting the husband's application for the

children only.  (The applicant denies any knowledge of this letter or

having signed it.)

        The Entry Clearance Officer considered that the applicant had

consented to the two children being granted entry clearance alone.

This officer thought he had been dealing with a person called Minara

Begum, date of birth 10 May 1959, the details featuring in a passport

provided by the applicant's husband to the immigration authorities.

        In April 1987 the applicant applied for a visa to visit her

sister, who was unwell, and her family settled in the United Kingdom.

The Entry Clearance Officer did not associate the applicant with the

lady with whom he had corresponded the year before and the applicant

had produced a passport with her name, Mina Begum, date of birth

1 August 1959.

        On 10 May 1987 the applicant arrived at Heathrow Airport in

the United Kingdom where she and her brother-in-law, the sponsor for

her visa application, were interviewed by two immigration officers.

Certain of their statements disclosed discrepancies so the applicant

was only granted temporary admission while further inquiries were made

of the Entry Clearance Officer in Dhaka.  He replied that the

applicant had informed him that her husband and children were living

in Bangladesh.  He now realised that they were all living in the United

Kingdom after settlement visas had been issued to the children and the

second wife in February 1987.  The Officer stated that he would not

have granted the applicant's visa if he had known that the applicant's

ex-husband was a United Kingdom resident and that the children had

also recently settled there.  As a result of the discrepancies

disclosed at the interview and the information from the Dhaka Visa

Officer, the Immigration Officer in Heathrow London formally refused

the applicant leave to enter as he was satisfied that false

representations were used or material facts not disclosed for the

purpose of obtaining a visa.

        On appeal to an adjudicator the applicant conceded that she

had lied to the Dhaka Visa Officer, on her ex-husband's suggestion, as

to the divorce and custody of the children.  She informed the

adjudicator that she had only just found out that the children had

settled in the United Kingdom with their father.  He would not let her

see or speak to the children.  Evidence of the applicant's assistance

to her sister's household was presented.  However, the adjudicator

upheld the refusal of the immigration officer on 9 June 1988,

commenting that he was unable to decide where the truth lay in the

applicant's statements.  The applicant stayed on in the United Kingdom

and instituted proceedings for custody of and access to her children.

        The applicant's representatives requested the Secretary of

State to grant the applicant exceptional leave to remain in the United

Kingdom in the light of her children's settlement, the needs of her

sister's family and the generally compassionate circumstances of her

case.  This was refused by the Minister of State on 5 October 1988.  He

considered that the applicant's sister could receive help from other

sources and that the pending litigation was not a sufficient reason to

make an exception in the applicant's case.

        On 23 November 1988 the applicant was granted "reasonable"

access to the children by the High Court in the context of her

precarious immigration status.  A Court Welfare Officer had found the

children happy and well settled with their father, second wife and

half sister.  During periods of supervised access the children had

withdrawn from the applicant.  At the hearing it was anticipated

that the applicant would voluntarily leave the United Kingdom on

25 February 1989.  According to the applicant's representative, the

Court was therefore endorsing an arrangement whereby the applicant

would see the children three times before she left and that they would

keep in touch with letters, school reports and photographs.  However,

the applicant's representatives expressed scepticism whether the

ex-husband would observe his undertakings to this effect as he seemed

determined to sever the link between the applicant and the children.

The applicant did not leave the United Kingdom on 25 February 1989 as

she had agreed with the immigration authorities.

        By letter of 31 December 1988 the applicant applied to the

Home Office for permission to remain in the United Kingdom to

remarry.  An immigration officer reported that the proposed marriage

appeared to be intended primarily to obtain settlement in the United

Kingdom.  The applicant's brother-in-law had conceded that there would

be no marriage if the applicant were not allowed to remain in the

United Kingdom.  The application was accordingly refused by the Home

Office Minister of State on 14 March 1989 and the applicant was

removed from the United Kingdom on 25 March 1989.

COMPLAINTS

        The applicant complains that the refusal to allow her to

remain in the United Kingdom was in breach of her right to respect for

family life, ensured by Article 8 of the Convention.  She contends

that the refusal was not necessary in a democratic society having

regard to the compassionate circumstances of her case.  The applicant

claims that she has no future in Bangladesh.  As an estranged wife

without children her situation is unbearable.  She has no social role

or place, no ability to provide for herself and would be quite alone

and helpless as her father, now in his 80's, is in poor health and her

only protector.  She is deeply attached to the children but she has

only been granted access to them.  She does not have the financial

resources to visit England on a regular basis.  The children are still

young (13 and 10) and need to have regular access to restore their

former warm and loving relationship.  The applicant cannot exercise

her right to family life in Bangladesh.  In addition to her own

children, the applicant has real ties with her sister and family.  She

has established an independent role for herself in the 18 months she

resided in the United Kingdom.

        The applicant alleges that the United Kingdom Government

failed to strike a proper balance between their immigration policy and

her right to respect for family life.  The means employed to refuse

and exclude the applicant disproportionately limited her rights.

        The applicant also alleges that she has suffered violations of

Articles 3 and 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 20 October 1988 and

registered on 5 January 1989.  After a preliminary examination of the

case by the Rapporteur, the Commission considered the admissibility of

the application on 7 August 1989.  It decided to give notice of the

application to the respondent Government pursuant to Rule 42 para. 2

(b) of the Rules of Procedure and to invite the parties to submit

their written observations on admissibility and merits.  The

Government's observations were submitted on 5 April 1989, to which the

applicant replied on 7 August 1989.

THE LAW

1.      The applicant has complained to the Commission that the

refusal of British immigration authorities to allow her to remain in

the United Kingdom was in breach of her right to respect for family

life ensured by 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 ..."

2.      The Government have first contended that the applicant has

failed to exhaust domestic remedies, as required by Article 26

(Art. 26) of the Convention, because she did not put the substance

of her Convention complaint to the adjudicator.  It could have been

categorised as compassionate circumstances to be taken into account

with a view to the adjudicator possibly making a recommendation in her

favour which the Secretary of State would consider carefully.

Moreover, the applicant did not appeal against the adjudicator's

decision to an Immigration Appeal Tribunal and did not seek judicial

review of the Minister's decision of 14 March 1989.

        The applicant replied that the remedies suggested by the

Government were ineffective.  She had not appealed against the

adjudicator's decision because she had no arguable point of law to

raise before the Immigration Appeal Tribunal.  Moreover, the

adjudicator's appeal was limited to the validity of her original visa,

not her subsequent application for settlement outside the scope of the

Immigration Rules.  The applicant's solicitors had submitted

representations to the Secretary of State asking him exceptionally to

grant the applicant leave to remain in the United Kingdom, but he

consistently refused to change his original decision.  Judicial review

would not effectively lie against his refusal to exercise his

extra-statutory discretion in the applicant's favour, there being

nothing perverse or irrational or contrary to the "Wednesbury

principles" in the Minister's decisions in this case.  The applicant

thus submitted that she has exhausted all effective remedies at her

disposal.

3.      The Government also contended, assuming that the applicant has

complied with the requirements of Article 26 (Art. 26), that the

applicant's tie with her children was substantially weakened when

they went to live with their paternal grandparents (the boy from 1979

onwards and the girl from 1986).  The Government are convinced that

the applicant agreed to the children emigrating to the United

Kingdom without her. Neither child has expressed the desire to see the

applicant.  The decision of the British courts to grant the

applicant "reasonable access" to the children was taken in

recognition of the fact that the applicant was about to leave the

United Kingdom.  Nothing prevents the applicant from visiting her

children from time to time or from the children visiting her in

Bangladesh.  She is to receive letters and school reports from them.

The Government also contended that the applicant's sister in the

United Kingdom can obtain help from elsewhere and that the

applicant's family ties are not exclusively with the United Kingdom

as she has her father, brother and another married sister in

Bangladesh.  In these circumstances the Government submitted that the

applicant has no "family life" with her children or, alternatively,

that there has been no interference with her right to respect for

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

the Convention.  In the further alternative, any interference with her

Article 8 (Art. 8) right was in accordance with the law and necessary

in a democratic society for the prevention of disorder under which

notion falls the general interest in maintaining a firm but fair

immigration policy.

        The applicant refuted the Government's contentions.  She

claimed that it is unlikely that she would ever again be granted leave

to enter the United Kingdom as a visitor in view of the present

events, and, anyway, the travel costs are beyond her means.  Her

ex-husband is unlikely to let the children visit her as he has tried

to sever their ties completely.  She is unable to maintain contact

with the children outside the United Kingdom.  She contended that

family life between her and the children existed until her removal

from the United Kingdom in March 1989 and was recognised by the High

Court's access order.  The right of a divorced parent to have access to

the children has been established by the Court in the Berrehab case

(Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A

no. 138).  She claimed also to have a close family life with her

sister and her family in the United Kingdom, who urgently need her

help.  Accordingly she submitted that the interference with her family

life was not justified, the refusal to allow her to remain in the

United Kingdom being a disproportionate measure for immigration

control.

4.      The Commission considers that the applicant may be said to

have exhausted domestic remedies in the circumstances of her case.

She applied from Bangladesh for leave to enter to visit her sister,

failing to disclose her marital status and the situation of her

children.  She subsequently applied within the United Kingdom for

settlement to facilitate access to the children and to provide

permanent help for her sister who was unwell.  The proceedings before

the adjudicator concerned the validity of the original entry clearance

as a visitor and no purpose would have been achieved pursuing them

further when the purpose of the visit had fundamentally changed.

There is no provision in the Immigration Rules to allow entry and

settlement to a divorcee wishing to establish regular access to her

children.  Whether the applicant should have been allowed to settle in

the United Kingdom was left to the extra-statutory discretion of the

Secretary of State.  The Commission does not consider that the

applicant would have had any prospects of success if she had applied

for judicial review of the Minister's refusal to exercise that

discretion in her favour.

5.      The Commission has next considered whether there has been a

failure to respect the applicant's family life, ensured by Article 8

(Art. 8) of the Convention.

        The Commission notes that the applicant originally sought

entry to the United Kingdom to visit her sister only.  She gave the

immigration authorities misleading details about her marital status

and access to the children.  It also notes that she renounced much of

her contact with her children in allowing them to live with their

paternal grandparents and apparently agreeing to them going to live in

the United Kingdom with their father.  As a result she has apparently

become estranged from the children.  (They are over 10 and 13 years

old.)  From the point of view of British immigration, the applicant's

ex-husband has settled in the United Kingdom with a complete family

unit, a wife and three children, including the applicant's two

children.  The Commission does not consider that Article 8 (Art. 8)

of the Convention obliges a Contracting State to allow an ex-wife, who

is a non-national never having lawfully resided in that country other

than as a temporary visitor, to enter and settle in order to

facilitate access to children.  The Commission finds no elements in

the present case which warrant a departure from this principle.  The

Commission concludes, therefore, that the United Kingdom Government

have not failed to respect the applicant's right to respect for

family life. Accordingly this aspect of the case must be rejected as

being manifestly ill-founded within the meaning of Article 27

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

6.      The applicant has next complained that she has suffered a

breach of Article 3 (Art. 3) of the Convention which prohibits torture or

inhuman and degrading treatment.  However, the Commission finds no

evidence whatsoever that the applicant has suffered the kind of severe

ill-treatment proscribed by this provision at the hands of any British

authority.  It follows that this aspect of the case is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

7.      The applicant has finally complained that she has no effective

remedy for her above Convention claims and that she has thereby

suffered a breach of Article 13 (Art. 13) of the Convention.  However,

Article 13 (Art. 13) does not require a remedy in domestic law for

unmeritorious claims ;  the grievance must be an arguable one in terms

of the Convention (Eur. Court H.R., Boyle and Rice judgment of 27

April 1988, Series A no. 131, p. 23, para. 52).  In the light of its

considerations and  conclusions above that the applicant's complaints

under Articles 8 (Art. 8) and 3 (Art. 3) of the Convention are

manifestly ill-founded, the Commission finds that the applicant does

not have an arguable claim of a breach of these provisions for the

purposes of a remedy under Article 13 (Art. 13) of the Convention.

Accordingly this part of the application is similarly to 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)