AS TO THE ADMISSIBILITY OF

Application No. 12513/86

by W.J. and D.P.

against the United Kingdom

        The European Commission of Human Rights sitting in private on

13 July 1987, the following members being present:

                   MM. C.A. NØRGAARD, President

                        J.A. FROWEIN

                        S. TRECHSEL

                        F. ERMACORA

                        E. BUSUTTIL

                        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 11 September 1986

by W.J. and D.P. against the United Kingdom and

registered on 27 October 1986 under file No. 12513/86;

        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 first applicant is a citizen of New Zealand, born in 1953

and resident in Middlesex with the second applicant, who is a citizen

of the United Kingdom.  They are both teachers by profession.

        They are represented before the Commission by

Messrs.  Myers, Ebner & Deaner, Solicitors, London.

        The facts as submitted by the applicants, and which are

apparent from the official documentation lodged with the application,

may be summarised as follows:

        The first applicant went to the United Kingdom in October 1979

and was given six months' leave of entry with no restriction on

employment.  After a short absence from the country, he returned on

7 January 1980 and was given six months' further leave of entry

without conditions.  On 7 April 1980 the first applicant applied to

remain in the United Kingdom as a working holiday-maker.  This leave

was granted at periodic intervals until 8 July 1983 when the final

extension was accorded, because the maximum period for this category

of leave is five years.

        On 1 October 1984 the applicants' solicitors wrote to the Home

Office requesting indefinite leave to remain on behalf of the first

applicant.  The grounds of the application were that he had a

permanent teaching contract, and that since April 1982 he had been

living with the second applicant in a stable homosexual relationship.

Alternatively a further periodic extension of leave was requested.

The application was referred to the Department of Employment, but they

refused to approve the first applicant's employment.  The Home

Secretary considered the question of the stable homosexual

relationship, but decided that the Immigration Rules made no provision

for a person to remain in the United Kingdom on that basis.  Having

considered all the circumstances, the Home Secretary refused the

application on 21 August 1985, under the Statement of Changes in

Immigration Rules HC 169 para. 100.  The relevant part of this

paragraph provides that visitors who have been given leave of entry

without a work prohibition may only have their leave varied for work

if the Department of Employment approves the proposed employment.

Where the Department withholds approval, an extension of leave is to

be refused.

        The first applicant appealed against the Secretary of State's

decision to an Adjudicator.  The Adjudicator dismissed the appeal on

12 June 1986, upholding the lawfulness of the Secretary of State's

decision under the Immigration Rules, and declining jurisdiction to

review the Secretary of State's refusal to exercise his overriding

discretion in leave matters in the first applicant's favour (cf.

Section 4 Immigration Act 1971).  Leave to appeal to an Immigration

Appeal Tribunal was apparently refused on 18 July 1986.  The first

applicant is now faced with imminent deportation.  The second

applicant states that he would not be admitted to New Zealand to work

as enquiries have revealed that he would not be considered eligible

for the "occupational priority list".

COMPLAINTS

        The applicants complain of violations of Articles 1, 8 and 14

of the Convention in respect of the refusal by immigration authorities

to allow the first applicant to remain in the United Kingdom on the

basis of his stable homosexual relationship with the second applicant,

and in respect of the absence of any recognition in the Immigration

Rules of such a relationship.

        It is submitted on the applicants' behalf that no individual

consideration was given to their case and that there was no hearing of

these issues.  They are both useful, law-abiding citizens, hardworking

and well-balanced, living quietly together as a family unit.

        The Immigration Rules and legislation make no provision for

homosexual relationships, whilst recognising the heterosexual

relationships of married couples and fiancés.  However, United

Kingdom law permits homosexual acts in private between consenting

adults (cf.  Sexual Offences Act 1967).  Thus no issue of public policy

or morality arises which might justify discrimination against

homosexuals (cf.  Eur.  Court H.R., Marckx judgment of 13 June 1979,

Series A no. 31, Dudgeon judgment of 22 October 1981, Series A no. 45

and No. 10581/83, Norris v. the United Kingdom, Dec. 16.5.85 to be

published in D.R.).

        The applicants claim that the failure to treat their

relationship in the same manner as that of heterosexuals under the

Immigration Rules is contrary to Articles 8 and 14 of the Convention.

There has been an unjustified interference with their private life in

requiring the first applicant to leave the country despite his

irreproachable behaviour (cf.  Brüggemann and Scheuten v. the Federal

Republic of Germany, Comm.  Report 12.7.77, D.R. 10 p. 100, para. 55

and Eur.  Court H.R., Abdulaziz, Cabales and Balkandali judgment of

28 May 1985, Series A no. 94).

        As regards the Commission's decision in No. 9369/81 (Dec.

3.5.83, D.R. 32 p. 220) concerning a homosexual couple and a

deportation question, the applicants contend that, in contrast to that

case, no careful consideration has been given to their personal

situation by the immigration authorities and they are not

professionally mobile.  They claim to have made enquiries with the New

Zealand authorities which disclosed that their transfer to that

country is impossible.  The present case seeks to challenge the

discrimination in the Immigration Rules themselves.

        As regards the Commission's decision in No. 11716/85 (Dec.

14.5.86 unpublished) concerning the question of a lesbian unable to

benefit from her partner's tenancy rights, the applicants, considering

that the Commission's rejection of that case was justified, contend

that no comparison can be made between that case and the present

deportation issues.

THE LAW

1.      The applicants complain that the refusal to allow the first

applicant to remain in the United Kingdom with his homosexual partner,

the second applicant, constitutes an unjustified interference with

their private life, contrary to Article 8 (Art. 8) of the Convention, and

discrimination, compared with heterosexual couples, contrary to Article 14

(Art. 14) of the Convention.  They have also invoked Article 1 (Art. 1) of the

Convention.  Their complaints relate to the immigration laws themselves as well

as to their application in this case.

2.      The relevant parts of the provisions of the Convention invoked

by the applicants provide as follows:

        Article 1 (Art. 1)

        "The High Contracting Parties shall secure to everyone

        within their jurisdiction the rights and freedoms defined in

        Section 1 of this Convention."

        Article 8 (Art. 8)

        "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 ... the economic well-being of

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

        Article 14 (Art. 14)

        "The enjoyment of the rights and freedoms set forth in this

        Convention shall be secured without discrimination on any

        ground such as sex ... or other status."

3.      As regards the applicants' citation of Article 1 (Art. 1) of the

Convention, the Commission refers to its constant case-law that

Article 1 (Art. 1) contains a purely general undertaking and that, even in

conjunction with other Articles, it should not, in principle, be seen

as a provision which can be the subject of a separate breach of the

Convention (cf.  No. 5493/72, Handyside v. the United Kingdom, Dec.

4.4.74 Collection 45 p. 20 and Ireland v. the United Kingdom, Comm.

Report 25.1.76, Eur.  Court H.R. Series B no. 23-I pp. 491-492).

        In the absence of any explanation from the applicants as to

why their claims should be considered separately under Article 1 (Art. 1) of

the Convention, independently of the other allegations they have made,

the Commission concludes that this aspect of the case does not

constitute a separate issue requiring determination.

4.      As regards the applicants' complaints under Article 8 (Art. 8) of the

Convention, the Commission recalls its constant case-law that the

Convention does not guarantee a right, as such, to enter or remain in

a particular country.  However, the Commission has also held that, in

certain circumstances, the exclusion of a person from a country where

his close relatives reside may raise a family life issue under Article 8

(Art. 8) of the Convention (cf. 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. 9258/81,

Dec. 6.7.82, D.R. 29 p. 205).

        The applicants contend that their stable relationship is

comparable with family life and merits similar protection as private

life under Article 8 (Art. 8) of the Convention.  They claim that the absence

of consideration for homosexual relationships in the relevant

Immigration Rules, the alleged absence of individual consideration of

their case by the immigration authorities, and the authorities' actual

refusal to recognise that relationship by allowing the first applicant

to remain in the United Kingdom with the second applicant, violate

their right to respect for private life ensured by Article 8 (Art. 8) of the

Convention.

        The Court and the Commission have previously held that

homosexual relationships do not fall within the ambit of family life,

but rather fall within the notion of private life under Article 8 (Art. 8) of

the Convention (cf.  Eur.  Court H.R. Dudgeon judgment of 22 October

1981, Series A no. 45 para. 41 and No. 9369/81, Dec. 3.5.83, D.R. 32

p. 220).  It is clear that a refusal to allow a person to remain in a

country where he has been living and working for several years must

result in a disruption of his private life.  However, this inevitable

disruption cannot, in principle, be regarded as an interference with

the right to respect for private life, ensured by Article 8 (Art. 8) of the

Convention, unless the person concerned can demonstrate that there are

exceptional circumstances in his case justifying a departure from that

principle (cf.  No. 10427/83, Dec. 12.5.86 to be published in D.R.).

Accordingly, the Commission finds that the absence in United Kingdom

Immigration Rules of settlement rights for non-nationals in respect of

their stable, private relationships, other than family relationships,

does not, of itself, disclose any appearance of a violation of

Article 8 (Art. 8) of the Convention.

        As regards the factual circumstances of the present case, the

Commission notes that the applicants have had a stable homosexual

relationship and have lived together since April 1982.  However, the

first applicant entered that relationship in the knowledge that his

immigration status was unsettled and that he would only have a maximum

of two further years' leave to remain in the United Kingdom as a

working holiday-maker.  Apart from this relationship with the second

applicant and his necessarily short-term employment because of his

limited immigration status, the first applicant has no other ties with

the United Kingdom.  The Commission finds no substantiation in this

case for the applicants' claim that no individual consideration has

been given to their particular circumstances by the Secretary of State

in exercise of his overriding discretion pursuant to Section 4 of the

Immigration Act 1971.  Nor have the applicants provided any

substantiation of their claim that it would be impossible to live

together in New Zealand or elsewhere.  At no time have the applicants

been prevented from developing their relationship.

        In the light of the above considerations, the Commission

concludes that the present case does not disclose any exceptional

circumstances which might justify a departure from the aforementioned

general principle.  The Commission concludes, therefore, that the

refusal to allow the first applicant to remain in the United Kingdom

does not constitute an interference with the applicants' right to respect for

private life, ensured by Article 8 (Art. 8) of the Convention.  It follows that

this aspect of the application is manifestly ill-founded.

5.      Finally, the applicants have complained of discrimination

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

Article 14 (Art. 14), because homosexual relationships do not receive the same

protection under the Statement of Changes in Immigration Rules HC 169

as heterosexual relationships.

        It is true that these Immigration Rules make no provision for

the reunification of homosexual couples in the United Kingdom, whereas

they do permit, inter alia, certain foreign spouses and fiancés to

join their partners in the United Kingdom, where the latter have the

right of abode.

        The Commission has had occasion to consider such policy

distinctions between homosexual and heterosexual couples.  In a case

concerning a lesbian relationship and housing policies, the Commission

decided as follows:

        "The Commission accepts that the treatment accorded to the

        applicant was different from the treatment she would have

        received if the partners had been of different sexes.

        The Commission finds that the aim of the legislation in

        question was to protect the family, a goal similar to the

        protection of the right to respect for family life

        guaranteed by Article 8 (Art. 8) of the Convention.  The aim itself

        is clearly legitimate.  The question remains, however, of

        whether it was justified to protect families but not to give

        similar protection to other stable relationships.  The

        Commission considers that the family (to which the

        relationship of heterosexual unmarried couples living

        together as husband and wife can be assimilated) merits

        special protection in society and it sees no reason why a

        High Contracting Party should not afford particular

        assistance to families.  The Commission therefore accepts

        that the difference in treatment between the applicant and

        somebody in the same position whose partner had been of the

        opposite sex can be objectively and reasonably justified."

        (No. 11716/85, Dec. 14.5.86 to be published in D.R.)

        The Commission adopts these general considerations for the

purposes of the present case and the immigration laws which are

involved here.  With regard to the principle of proportionality (Eur.

Court H.R., Belgium Linguistic judgment of 23 July 1968, Series A no.

6, p. 34) the Commission finds that no issue of proportionality arises

between the aims of the relevant Immigration Rules and their

application to the applicants, as the family life provisions of the

Rules did not apply in this case.  The first applicant was refused

leave to remain further in the United Kingdom, not because he was a

homosexual, but because he was not in employment approved by the

Department of Employment (Statement of Changes in Immigration Rules HC

169 para. 100).  In this respect the Commission considers that the

principle of proportionality between the means employed and the aim

sought to be realised, i.e. the economic well-being of the country,

was respected.

        After its examination of this aspect of the application the

Commission concludes that it discloses no appearance of discrimination

contrary to Article 14 (Art. 14) of the Convention.  Accordingly this part 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.

Secretary to the Commission                 President of the Commission

       (H.C. KRÜGER)                                (C.A. NØRGAARD)