Lexploria

The European Commission of Human Rights sitting in private on

16 October 1986, the following members being present:

MM C.A. NØRGAARD, President

J.A. FROWEIN

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr F. MARTINEZ

Mr H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 May 1986 by L. and

F.S. against the United Kingdom and registered on 25 June 1986 under

file No. 12236/86;

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 the United Kingdom, born in 1942.

The second applicant, his wife, is a citizen of Ghana, born in 1959.

They live together, with the first applicant's five children by a

previous marriage, in London.

They are represented before the Commission by Mr J. Fraser, Member of

Parliament.

The facts as submitted by the applicants, and according to certain

official documents accompanying the application, may be summarised as

follows:

The second applicant was arrested on 11 August 1984 as a result of

police enquiries because she had overstayed a two month visitor's

permit issued on 28 October 1983. On entry she had told the

immigration officer that she would be joined in the United Kingdom by

her husband for a holiday and that she had two children in Ghana. On

arrest she claimed that she had subsequently received a letter from

her husband saying that he was leaving her and had no intention of

joining her. She had, therefore, decided to remain in the United

Kingdom to help look after the children of a friend.

On 20 August 1984 the second applicant was fined £50 for overstaying,

recommended for deportation and released on a court restriction order.

She apparently lodged no appeal against the recommendation. This

applicant was also arrested with a person she claimed was her

boyfriend. He was also later convicted of overstaying, recommended

for deportation and actually deported.

On 4 February 1985 the Home Secretary, pursuant to Section 5 (1) of

the Immigration Act 1971, issued a deportation order against the

second applicant, which order was served on 12 April 1985. There is

no appeal available against the merits of such a deportation order.

On 19 April 1985 solicitors requested the Home Office that the

deportation order be revoked on the grounds of the applicants'

marriage on 17 April. They had apparently met in September 1984. In

March 1985 the second applicant had obtained evidence of the

dissolution of her previous tribal marriage.

On 30 August 1985 the Parliamentary Under Secretary of State for the

Home Office decided to maintain the deportation order against the

second applicant and wrote as follows to the applicants'

representative:

"(The applicants) were interviewed but, whereas they appeared to be

living together as man and wife, we were not satisfied in the

particular circumstances that the marriage was not entered into other

than to prevent (the second applicant's) deportation and secure her

stay. She had no entitlement to remain by virtue of Section 2 (4) of

the Immigration Act 1971, as amended by Section 39 (2) of the British

Nationality Act 1981, and the deportation order was maintained. The

solicitors were so informed on 20 June.

I have carefully reviewed the case in the light of your

representations but I am afraid that I am unable to take a different

view. The deportation order must therefore stand. (The first

applicant) has indicated that he would be willing to accompany his

wife if necessary and directions will accordingly now be given to the

Immigration Service to effect her removal.

You suggest that (the second applicant) would have an entitlement if

she were deported to obtain an entry clearance under paragraph 48 of

the Immigration Rules (HC 169) to return and join her husband here.

The position is that, whilst it would be open to her to apply at any

time to the nearest British High Commission or Embassy abroad for the

deportation order to be revoked and for an entry clearance to join her

husband, paragraph 171 of the Rules provides that an order which has

been in force for less than three years shall not be revoked save in

the most exceptional circumstances, which do not appear to apply in

her case."

In subsequent correspondence dated 10 March 1986 the Home Office

stressed that any subsequent application for revocation of the

deportation order would be carefully considered on the merits in the

light of the circumstances at the material time, but the onus would be

on the applicants to show why it would be unreasonable to expect them

to make their home together abroad for the next three years or so.

Their differences in language and culture would not necessarily be

factors in themselves deserving exceptional treatment.

COMPLAINTS

The applicants complain that the refusal to allow the second applicant

to remain in the United Kingdom in consequence of her marriage is a

breach of Article 12 (art. 12) of the Convention, in that, in

practice, it prevents the first applicant from exercising his right to

marry and found a family. The applicants also invoke Article 8

(art. 8) of the Convention. They submit that it would be artificial

to say that the husband is free to join his wife after deportation.

He speaks no language which is current in Ghana and it would be

impossible for him to pursue his present job as a bus driver. It

would also be impossible for him to find accommodation for his five

children even if they were willing to transfer their family life to a

different country.

THE LAW

1. The applicants have first complained that the refusal to allow

the second applicant to remain in the United Kingdom in consequence of

her marriage to the first applicant is a breach of Article 12

(art. 12) of the Convention, because, in practice, it prevents the

first applicant from exercising his right to marry and found a family.

Article 12 (art. 12) of the Convention provides as follows:

"Men and women of marriageable age have the right to marry and to

found a family, according to the national laws governing the exercise

of this right."

The Commission notes that in the present case the applicants have

married, unhindered, under English law. Furthermore, the right to

found a family does not imply a right to remain in a particular

country. In these circumstances, the Commission finds that the

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

does not disclose any interference with the applicant's rights under

Article 12 (art. 12) of the Convention.

It follows that this aspect of the case is manifestly ill-founded,

within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.

2. The applicants also claim that the prospective deportation of

the second applicant constitutes a breach of Article 8 (art. 8) of the

Convention, the relevant part of which reads 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 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."

The Commission refers to its constant case-law that there is no right

to enter, reside or remain in a particular country guaranteed, as

such, by the Convention. However, the Commission has also held that,

in view of the right to respect for family life ensured by Article 8

(art. 8), the exclusion of a person from a country in which his close

relatives reside may raise an issue under this provision of the

Convention (see e.g. No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219).

In the present case, the Commission notes that the second applicant is

to be deported for having failed to observe immigration controls and

that her marriage was contracted at a time when she was aware that she

was at risk with her irregular immigration status. The first

applicant had at one time stated his willingness to accompany the

second applicant to Ghana if necessary. Moreover the second applicant

may not necessarily be permanently excluded from the United Kingdom

because under current immigration rules she may eventually apply for

revocation of the deportation order and entry clearance to join the

first applicant in the United Kingdom, he being a British citizen.

In the circumstances of the present case, even though the second

applicant's present deportation would constitute an interference with

both applicants' right to respect for family life under Article 8

(art. 8), the Commission must attach significant weight to the reasons

for this measure. It finds with regard to the second paragraph of

Article 8 (art. 8) that there are insufficient elements concerning

respect for family life which could 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

potential interference with the applicants' right to respect for

family life is in accordance with the law (the Immigration Act 1971),

and justified as being necessary in a democratic society for the

"prevention of disorder" under the second paragraph of Article 8

(art. 8-2), as a legitimate measure of immigration control.

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)

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S. v. THE UNITED KINGDOM

S. v. THE UNITED KINGDOM