Lexploria

The European Commission of Human Rights sitting in private on

13 October 1986, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. J. RAYMOND, Deputy Secretary to the Commission

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

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 June 1986 by

P. and G.P. against the United Kingdom and registered on 10 June 1986

under file No. 12216/86;

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 British Overseas citizen born in 1944 and

resident in Secunderabad, India. The second applicant, the brother of

the first applicant, is a British citizen born in 1951 and resident in

London. They are represented before the Commission by

Ms. Susan Hulton, Legal Director, Interrights. The facts as submitted

by the applicant may be summarised as follows.

The applicants' family originally lived in East Africa. Following the

"Africanisation" policy introduced in Tanzania however, the family

moved to India. The second applicant moved to the United Kingdom in

1973 where the whole family, save the first applicant, were settled by

1976. The first applicant remained in India because she had married

an Indian national in 1971 and chose to remain in India with her

husband.

On 13 November 1982, the first applicant's husband died, leaving her

to raise three children without any family support within the country.

Her father had died in India eight years earlier and her mother had

obtained entry to the United Kingdom to join the second applicant

shortly after. Her two other brothers and sisters had also settled in

the United Kingdom. Her father-in-law had died and her mother-in-law

lives 1.500 km away. The two sisters of her husband live in Zambia

and United Kingdom respectively. The only other relative she had was

a paternal uncle also in the United Kingdom. Her husband left no

pension and since his death, the first applicant has been entirely

dependent on the second applicant for monthly remittances. The first

applicant and her children live in a one room apartment in which there

is one bed, one cupboard and one mattress for the children; there is a

separate kitchen.

Since her husband's death, the first applicant has been unwell. A

doctor's certificate dated 29 March 1984 described her condition as

"severe endogenous depression" and gives the view that "she has not

been able to come out of her depression because of lack of usual

family support to herself and her children".

The second applicant had applied on 7 December 1982 for a quota

voucher for the first applicant to enter the United Kingdom in her own

right as a British Overseas citizen. He was informed that the waiting

period in the queue from India is an average of between six and eight

years. The first applicant therefore also applied for entry on

7 December 1982 for herself and her children as dependants of the second

applicant under paragraph 52 of the Statement of Changes in

Immigration Rules HC 169:

"52. Widowed mothers, fathers who are widowers aged 65 or over and

parents travelling together of whom at least one is aged 65 or over

should be admitted for settlement only where the requirements of

paragraphs 46 and 47 and the following conditions are met. They must

be wholly or mainly dependent upon sons or daughters settled in the

United Kingdom who have the means to maintain their parents and any

other relatives who would be admissible as dependants of the parents

and adequate accommodation for them. They must also be without other

class relatives in their own country to turn to.

This provision should not be extended to people below 65 (other than

widowed mothers) except where they are living alone in the most

exceptional compassionate circumstances, including having a standard

of living substantially below that of their own country, but may in

such circumstances be extended to sons, daughters, sisters, brothers,

uncles, aunts of whatever age who are mainly dependent upon relatives

settled in the United Kingdom. The requirements of paragraphs 46 and

47 must be met in any such cases."

(Paragraph 47 imposes the requirement of obtaining an entry

certificate and paragraph 46 imposes the obligation that the sponsor

"must be able and willing to maintain and accommodate his dependants

without recourse to public funds in accommodation of his own or which

he occupies himself".)

The application was refused on 13 September 1983 by the Entry

Clearance Officer in Bombay, but the appeal was allowed by the

Adjudicator, who accepted that the first applicant was living in the

most exceptional compassionate circumstances and that she would have a

standard of living substantially below that of her own country if her

brother's remittances ceased. The Entry Clearance Officer appealed to

the Immigration Appeal Tribunal. In its decision of 19 June 1985, the

Tribunal found for the Entry Clearance Officer. It accepted the first

applicant was living alone and that she had no income of her own,

being entirely dependent on aid from her brother. However, in

assessing whether the first applicant's situation constituted "most

exceptional compassionate circumstances", the Tribunal held that the

ability of the Sponsor to assist financially should be taken into

account and that since the second applicant was able to support the

family through his aid, there was no evidence of extreme hardship.

They also found that although there was some evidence of ill-health,

the medical evidence was not entirely clear. They therefore concluded

that while there were compassionate circumstances in the case "these

were not of the most exceptional kind".

The first applicant did not seek judicial review of the decision since

this would have been ineffective in the circumstances of the case.

On 13 September 1985, counsel from the United Kingdom Immigrant's

Advisory Service ("UKIAS") wrote to the Under Secretary of State of

the Home Office on the first applicant's behalf requesting that she be

allowed to join her brother in the United Kingdom as an exceptional

matter outside the Immigration Rules. On 23 September 1985,

Mr. Leighton M.P. petitioned the Home Secretary on behalf of the

second applicant. Mr. Spearing, the second applicant's constituency

M.P., wrote a follow-up letter on 28 January 1986. On 10 March 1986

the Minister replied enclosing a copy of a letter dated

10 December 1985 to Mr. Leighton advising that he had reviewed the

Tribunal's decision and was unable to reach a different conclusion.

Counsel from UKIAS did not receive a written response to the letter to

the Under-Secretary, but the second applicant was advised by telephone

in December that her request had been turned down and a reply to that

effect had been sent to Mr. Leighton.

COMPLAINTS

Article 8 (art. 8)

The applicants contend that the refusal of the authorities to allow

the first applicant and her children to enter the United Kingdom to

reside with the second applicant constitutes an unjustified

interference with their right to respect for family life. They submit

that there is a strong material and emotional bond between the

applicants and it is clearly accepted by the authorities that the

first applicant is wholly dependent financially on the second

applicant. The first applicant is equally dependent emotionally on

the second applicant, her mental condition requiring emotional support

since her husband's death. The applicants contend that it is neither

possible nor reasonable to expect the second applicant and his family

joining his sister in India. His family (also comprising two

brothers, two sisters and elderly mother) are well-settled in United

Kingdom where they have lived for more than ten years. They also have

no ties with India. The economic consequences of moving to India

would be disastrous and the second applicant would probably be unable

to continue to support the first applicant.

The applicants contend that the separation of the applicants cannot be

held to be justified under Article 8 para. 2 (art. 8-2) as being

necessary in a democratic society to achieve one of the legitimate

aims specified in that paragraph. Even if the refusal could be said

to be for a legitimate aim, the means used to achieve that purpose is

disproportionate.

Article 13 (art. 13)

The applicants contend that the following remedies do not satisfy the

criterion of effective remedies either individually or in the

aggregate.

a) Right of appeal to the Immigration Appeal Tribunal

This body does not provide an effective remedy since it has no power

to depart from the Immigration Rules to deal with a complaint of

violation of the Convention.

b) Representations to the Secretary of State

It cannot be an effective remedy to apply to the same person who

promulgated the Rules and took the original decision complained of.

c) Judicial review

i. Of the decision of the Immigration Appeal Tribunal

The applicants submit the Divisional Court also could not question the

lawful application of the Rules. It could only quash the decision if

the Tribunal had erred in law or acted arbitrarily or perversely

reached a conclusion on the facts which no reasonable Tribunal could

have reached.

ii. Of the decision of the Secretary of State

If the Secretary of State's decision is within the Rules and he

refuses to depart from them, such decision does not constitute an

exercise of discretion from which an appeal lies under section 19

para. 2 of the Immigration Act 1971.

The applicants therefore submit that there was no opportunity in these

or any other legal proceedings in the United Kingdom in which they

could challenge the conformity of the authorities' refusal of entry

with Article 8 (art. 8) of the Convention and accordingly that there

has been a breach of Article 13 (art. 13) of the Convention.

THE LAW

1. The applicants complain of the refusal by the British

Immigration authorities to allow the first applicant and her children

to enter and remain in the United Kingdom. Their principal grievance

is that the refusal constitutes an unjustified interference with their

right to respect for family life ensured by Article 8 (art. 8)

of the Convention.

Article 8 (art. 8) provides as follows:

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

life, his home and his correspondence.

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."

However, the Commission is not required to decide whether or not the

facts alleged by the applicant disclose any appearance of a violation

of this provision, as Article 26 (art. 26) of the Convention provides

that the Commission "may only deal with the matter ... within a period

of six months from the date on which the final decision was taken".

According to the Commission's constant case-law the "final decision"

within the meaning of Article 26 (art. 26) refers solely to the final

decision involved in the exhaustion of all domestic remedies according

to the generally recognised rules of international law. In particular

only a remedy which is "effective and sufficient" can be considered

for this purpose (see e.g. decisions on admissibility of applications

No. 918/60, Collection of Decisions 7 pp. 108, 110 and No. 654/59,

Yearbook 4 pp. 277, 283).

The Commission finds that, in the present case, the applicants'

application to the Secretary of State to exercise his discretion to

allow entry as an exceptional matter outside the Immigration Rules was

not an effective remedy under the generally recognised rules of

international law, since the Secretary of State is not only the

authority responsible for the promulgation of the Immigration Rules

but the authority responsible for the initial decision to refuse

entry. Consequently, the final decision regarding the applicants'

complaint is the decision of the Immigration Appeal Tribunal which was

given on 19 June 1985. The present application however was submitted

to the Commission on 6 June 1986, that is, more than 6 months after

the date of this decision. Furthermore, an examination of the case

does not disclose the existence of any special circumstances which

might have interrupted or suspended the running of that period.

It follows that this part of the application has been introduced out

of time and must be rejected under Article 27 para. 3 (art. 27-3)

of the Convention.

2. The applicants also complain that they do not have any

effective remedy for their complaints under Article 13 (art. 13)

of the Convention.

Article 13 (art. 13) of the Convention provides that:

"Everyone whose rights and freedoms as set forth in this Convention

are violated shall have an effective remedy before a national

authority notwithstanding that the violation has been committed by

persons acting in an official capacity."

The Commission recalls however that it has already considered this

issue in relation to immigration appeal procedures (see Application

No. 8244/78, Dec. 2.5.79, D.R. 17 p. 149) and concluded that the

possible appeals to the Adjudicator and Immigration Appeal Tribunal

who are empowered to review and reverse the decisions by the Home

Secretary ordering deportation, constitute effective remedies. The

Commission finds that these procedures also constitute effective

remedies in relation to complaints concerning a refusal of entry by

the immigration authorities. The Commission recalls that the

Adjudicator indeed found in favour of the applicants. The fact that

they were unsuccessful before the Immigration Appeal Tribunal cannot

amount to a breach of Article 13 (art. 13) of the Convention.

It follows that this part of the application is manifestly ill-founded

in accordance with Article 27 para. 2 (art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary President

to the Commission of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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P. v. THE UNITED KINGDOM

P. v. THE UNITED KINGDOM

LEXI