AS TO THE ADMISSIBILITY OF
Application No. 25525/94
by Mumin ADVIC
against United Kingdom
The European Commission of Human Rights (Second Chamber) sitting
in private on 6 September 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 August 1994 by
Mumin ADVIC against United Kingdom and registered on
3 November 1994 under file No. 25525/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of former Yugoslavia. He claims that
he was born on 11 January 1939. Before the domestic authorities,
however, the applicant claimed that he was born on 26 November 1936.
He further claims that he is a Muslim by religion. The applicant is
currently residing in Poland. In the proceedings before the Commission,
the applicant is represented by Mr. B. A. Murphy, a solicitor
practising in Ayr.
The facts of the case, as they have been submitted by the
applicant, can be summarised as follows:
a) Particular circumstances of the case
The applicant spent his first 18 or 21 years in Yugoslavia. In
1957 he emigrated to Scotland, where his father had already established
himself. He was given leave to remain and married in 1966. Both the
applicant's children were born in Scotland around 1967 and 1972.
In May 1975, when he was made redundant, the applicant and his
family emigrated to Yugoslavia. He claims that he could not find
employment in the United Kingdom and that he had been offered a job in
Bosnia.
On 25 April 1992 the applicant's wife left Bosnia for Poland
where her parents lived. His children left Bosnia as well. On
25 May 1992 the applicant was made redundant once again. In an
interview he gave to an Entry Clearance Officer at the United Kingdom
Consulate in Warsaw on 20 April 1993 the applicant attributed his loss
of employment to the general hardship caused by the civil war. In
particular he submitted that he "lost (his) job as when (the) war
started no one had a job". Before the Commission he claims that he lost
his job because he was a Muslim in an area controlled by Serbs. In the
course of the above-mentioned interview the applicant further claimed
that he "had to leave (his) house as they started knocking on doors and
taking people to camps and murdering them". Before the Commission he
claims that his house was forcibly taken away and that he was
temporarily held in a prisoner of war camp. In August 1992 the
applicant left for Croatia. He subsequently joined his family in
Poland.
Seven months after his arrival in Poland the applicant applied
to the United Kingdom Consulate in Warsaw for an entry clearance as a
returning resident. On 20 April 1993 he was interviewed by an Entry
Clearance Officer. The applicant submitted that he had a brother who
had been married and raised a family in Scotland, with whom he had
retained close links. He further indicated that his wife and children
were not prepared to follow him to Scotland. He also claimed that his
main reason for wishing to return to the United Kingdom was the social
security rights he had acquired there before 1975. He finally submitted
that he did not speak Polish and, as a result, the prospects of
establishing himself successfully in Poland were limited. At the time
he and his family, with the exception of his son who was working, were
supported by his wife's parents who had a farm and received a pension.
The Entry Clearance Officer formed the view that the applicant's
readmission as a returning resident was not justified under
paragraphs 58 and 59 of the Immigration Rules (H.C. 251) on the ground
that the applicant had been absent abroad for 18 years and there
existed no special circumstances. In his explanatory statement the
officer noted the following: First, the applicant had resided in the
United Kingdom for over 18 years. While this was a substantial period
it did not amount to a major portion of his life. Secondly, the
applicant left the United Kingdom of his own free will for economic
reasons. He now wished to return clearly for economic reasons. His case
could not be considered to be a compassionate one. Thirdly, while
having family in the United Kingdom, the applicant had only seen them
once in 17 years. Correspondence over the years was claimed, but this
could not be substantiated. There was little in the way of a close tie
to the United Kingdom.
The applicant was informed of the decision of the Entry Clearance
Officer on 11 May 1993. He immediately lodged an appeal. The United
Kingdom authorities in Warsaw examined his appeal in the light, inter
alia, of the fact that his children had in the meantime acquired United
Kingdom passports. They decided, however, not to alter the original
decision. In accordance with the 1971 Immigration Act, the appeal was
submitted to an independent adjudicator.
On 22 November 1993 the applicant's daughter arrived in the
United Kingdom. On 4 February 1994 his son arrived there as well. His
wife was admitted on 5 February 1994 on the basis of a six months'
visitors' visa.
The applicant's appeal was heard in Glasgow on 3 March 1994. His
wife appeared at the hearing and addressed the adjudicator. The
applicant's representative relied expressly on Article 8 of the
Convention.
On 24 March 1994 the appeal was refused. The adjudicator
considered that the appeal should be examined under paragraph 59 of the
Immigration Rules. As the applicant had been absent for more than
two years from the United Kingdom, paragraph 58 did not apply.
The adjudicator took into consideration a number of factors in
favour of the applicant's application. First, the applicant's brother,
who was his only close relative, was in Scotland. The applicant's
children, who were United Kingdom nationals, had also established
themselves there. Secondly, the applicant had spent a significant
portion of his life in the United kingdom during which he married and
raised a family. Thirdly, the civil war in Bosnia had dire consequences
for the applicant and his family and their situation in Poland was
unhappy.
However, in the adjudicator's view, a number of factors
unfavourable to the applicant existed as well. First, the applicant had
not spent "most of his life" in the United Kingdom. Secondly, there was
no evidence that during the period he spent in Yugoslavia the applicant
had ever indicated that he intended to return to the United Kingdom.
Thirdly, in the course of the interview at the United Kingdom Consulate
in Warsaw the applicant had mentioned work credits and a pension scheme
as his motive for securing entry to the United Kingdom. Fourthly, there
was no evidence of contact between the applicant and his brother during
the period the applicant spent in Yugoslavia.
Taking all the above into consideration, the adjudicator
considered that the factors adverse to the applicant outweighed those
in his favour. On balance, the adjudicator considered that the decision
of the Entry Clearance Officer not to exercise discretion in favour of
the applicant under paragraph 59 of the Immigration Rules was, on the
basis of the information before the Officer, justified. Nevertheless,
in the light of the compassionate circumstances which existed in the
applicant's case, the adjudicator recommended that the Secretary of
State should exercise his discretion outside the Immigration Rules and
allow the applicant to enter the United Kingdom and resume his life
there with his family. The adjudicator considered that the Secretary
of State would "no doubt also bear in mind the provisions of Article 8
of the European Convention on Human Rights".
On 25 April 1994 the applicant was informed that the Secretary
of State had considered the adjudicator's recommendation and decided
not to accept it.
On 20 May 1994 the applicant was refused leave to appeal by the
Immigration Appeal Tribunal on the ground that the conclusions of the
adjudicator were fully supported by the evidence and there was no
misdirection in law. He was informed that he did not have a right to
appeal to the Court of Appeal or the Court of Session. He could apply,
however, for judicial review.
On 10 June 1994 the applicant asked the Secretary of State to
reconsider his case. On 30 June 1994 the applicant was informed that
the Secretary of State had decided not to reverse his earlier decision.
The applicant's wife is currently in Germany where her sister
resides. His children attend college in Scotland and live in a local
authority flat.
The applicant continues to live with his parents-in-law in
Poland. He claims that he cannot find work because he does not speak
Polish and that the living conditions in the house of his parents-in-
law are difficult, since 12 persons have to share three rooms.
It appears that the applicant has also applied to the United
Kingdom Consulate in Warsaw for a visitor's visa and that his
application remains pending.
b) Relevant domestic law
Paragraphs 58 and 59 of the Immigration Rules (H.C. 251) provide
as follows:
"A passenger returning to the United Kingdom from overseas
(except one who received assistance from public funds
towards the cost of leaving this country) is to be admitted
for settlement on satisfying the immigration officer that
he had indefinite leave to enter or remain in the United
Kingdom when he last left, that he has not been away for
longer than two years, and that he now seeks admission for
the purpose of settlement.
A passenger who has been away from the United Kingdom too
long to benefit from the preceding paragraph may
nevertheless be admitted if, for example, he has lived here
for most of his life."
COMPLAINTS
The applicant complains that the authorities' refusal to allow
his application for re-entry to the United Kingdom amounts to a breach
of his right to respect for his private and family life under Article 8
of the Convention. He stresses that, before his children left for the
United Kingdom, the family had always lived together and that his case
is the only one where someone who had lived in the United Kingdom for
18 years was not re-admitted.
THE LAW
The applicant complains that the authorities' refusal to allow
his application for re-entry to the United Kingdom amounts to a breach
of his right to respect for his private and family life under Article 8
(Art. 8) of the Convention.
The Commission recalls that Article 8 (Art. 8) of the Convention
provides that everyone has the right to respect for his private and
family life.
The Commission further recalls that, in accordance with its case-
law, the right of a foreigner to enter or remain in a territory of a
High Contracting Party is not guaranteed as such by the Convention
(No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196). Moreover, the refusal
of a High Contracting Party to grant a residence permit to an alien who
had lived in its territory for 18 years in the past did not in itself
amount to an infringement of his private life within the meaning of
Article 8 (Art. 8) of the Convention (No. 1855/63, Dec. 24.4.65,
Yearbook 8 p. 200).
Nevertheless, in accordance with the Commission's case-law, the
exclusion of a person from a country in which his close relatives
reside may raise an issue under Article 8 (Art. 8) of the Convention.
However, in examining cases of this nature the Commission's first task
is to consider whether a sufficient link exists between the relatives
concerned to give rise to the protection of Article 8 (Art. 8) of the
Convention (No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).
Although this will depend on the circumstances of each particular
case, the Commission has already considered that the protection of
Article 8 (Art. 8) did not cover links between adult brothers who had
been living apart for a long period of time and who were not dependent
on each other (No. 8157/78, Dec. 5.12.79, unpublished). Moreover, the
relationship between a parent and an adult child would not necessarily
acquire the protection of Article 8 (Art. 8) of the Convention without
evidence of further elements of dependency, involving more than the
normal, emotional ties (No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).
The Commission notes that, at the time when the applicant made
his application for an entry clearance, his only close relative in the
United Kingdom was his brother from whom the applicant had been
separated since 1975. The applicant has not submitted any evidence that
he depended financially on him.
However, when the applicant's appeal was examined, both his
children had established themselves in the United Kingdom and this was
taken into consideration by the adjudicator when reviewing the Entry
Clearance Officer's decision. When examining, therefore, whether the
United Kingdom authorities' refusal to grant the applicant an entry
clearance amounts to an interference with his right to respect for his
family life, the Commission must also take into account the presence
of his children in that country.
However, the Commission notes that both children are adults.
Although it is claimed that until their arrival in the United Kingdom
the children had lived with the applicant, there is no indication that
the applicant depends on them financially. It must be noted in this
connection that both children are students who depend themselves on the
support of a Scottish local authority.
As regards, finally, the applicant's wife, the Commission notes
that, although she was present in the United Kingdom when the
applicant's appeal was examined, she had been admitted on the basis of
a visitor's visa and has since departed. Her temporary presence in the
United Kingdom could not create any right for the applicant under
Article 8 (Art. 8) of the Convention to return to the United Kingdom.
In these circumstances, the Commission considers that it has not
been shown that there exist sufficient links between the applicant and
his relatives residing in the United Kingdom to give rise to the
protection of Article 8 (Art. 8) of the Convention.
In the light of all the above, the Commission concludes that
there is no appearance of a breach of the applicant's right to respect
for his private and family life within the meaning of Article 8
(Art. 8) of the Convention. The application must, therefore, be
rejected as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy