AS TO THE ADMISSIBILITY OF
Application No. 25936/94
by Karim and Shohid ALI
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 1995, the following members being present:
MM. C.L. ROZAKIS, President
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, 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 25 July 1994 by
Karim and Shohid ALI against the United Kingdom and registered on
14 December 1994 under file No. 25936/94;
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 facts of the case as submitted by the applicants may be
summarised as follows.
The applicants are brothers born in 1954 and 1956 respectively
in Bangladesh and residing there. Before the Commission the applicants
are represented by Mr. Omar Faruque, a solicitor practising in
Birmingham, the United Kingdom.
In 1957 the applicants' father left Bangladesh and settled in the
United Kingdom. He has lived there ever since, whereas his wife and
three children (the applicants and their younger brother) remained in
Bangladesh.
In 1969 the applicants' mother died. In 1970 the applicants'
father remarried in Bangladesh.
In October 1970 the three brothers (the applicants and their
younger brother), and their stepmother applied for permission to enter
the United Kingdom to join the applicants' father. The application was
refused on 4 April 1972 as there were discrepancies in the information
submitted and the immigration officials were not satisfied that the
applicants were the sons of the person who had invited them to the
United Kingdom. Some time between 1972 and 1975 the application of the
second wife of the applicants' father was reconsidered and she was
allowed to enter the United Kingdom.
On 5 November 1975 the three brothers submitted a second
application. The application was refused on similar grounds. As
regards the oldest applicant an additional reason was that he had been
over 18 years of age. The ensuing appeal was dismissed in 1977.
In the 1980s the applicants and their father lost contact with
the youngest brother, who left Bangladesh.
The applicants' father became ill and was unable to work
following a heart surgery in 1984. He has lived on social payments
ever since.
In 1989, after the introduction of the DNA tests, the United
Kingdom authorities announced that they would reconsider applications
previously refused for lack of satisfactory evidence as to
relationship, where it could be shown by means of DNA evidence that
relationship existed. However, persons over 18 had to establish the
existence of dependency upon the "sponsor" in the United Kingdom and
of compassionate circumstances.
In September 1990 the applicants requested permission to join
their father in the United Kingdom and submitted DNA evidence. On
6 July 1992 the application was refused by the Secretary of State on
grounds that the applicants were not dependent upon their father and
were "not living alone in most compassionate circumstances", being
adult men of 37 and 36 years of age respectively, settled in
Bangladesh. They worked on their own land and were not dependent upon
their father. One of them was married and had three children. They
had last seen their father in 1982.
On 16 August 1993 the Immigration Appeals Adjudicator, after a
hearing with the participation of the applicants' father, confirmed the
refusal. The decision stated inter alia that the alleged sporadic
money transfers of small amounts from the father did not constitute
dependency; that in 1993 both applicants were married with children;
that the applicants' father lived on social payments and would be able
to support his sons only from public funds, which was contrary to the
requirement that entry permission be given only if the applicant would
have adequate means without recourse to public funds; and that their
father had not visited Bangladesh between 1982 and 1991.
On 22 September 1993 the Immigration Appeal Tribunal dismissed
the applicants' appeal against this decision.
Thereupon they submitted an application for leave to apply for
judicial review before the High Court. It was submitted out of time,
but the applicants' father, who was representing his sons, maintained
that this was due to his deteriorating health as he had a heart
condition and lung cancer.
This application was dismissed on 12 May 1994.
COMPLAINTS
The applicants complain that the refusals of the United Kingdom
authorities on three occasions between 1970 and 1994 to allow them to
enter the United Kingdom to join their father constituted a breach of
their right to respect for their family life contrary to Article 8 of
the Convention.
Thus, they were in fact victims of the immigration practices in
the United Kingdom as these practices, by imposing an unreasonable
burden in proving the existence of relationship, had deprived them of
the opportunity to reunite with their father in 1970 and 1975 and had
led to the third refusal in 1992-94.
THE LAW
The applicants complain under Article 8 (Art. 8) of the
Convention that the refusals of the United Kingdom authorities to allow
them to join their father in the United Kingdom constituted an
interference with their right to respect for their family life.
Article 8 (Art. 8) of the Convention, insofar as relevant, 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 ... the economic well-being of the country ...."
The Commission recalls that the Convention does not guarantee a
right to enter or to reside in a particular country. However, in view
of the right to respect for family life as guaranteed by Article 8
(Art. 8) of the Convention, the exclusion of a person from a country
in which his close relatives reside may raise an issue under this
provision of the Convention (cf. No. 11274/84, Dec. 1.7.85, D.R. 43,
p. 216). Relationships between adults and, as in the present case,
between a father and his adult sons do not necessarily enjoy the
protection of Article 8 (Art. 8) of the Convention without evidence of
further elements of dependency, involving more than the normal
emotional ties (cf. No. 10375/83, Dec. 10.12.84, D.R. 40, p. 196).
The Commission considers that it is not necessary to examine in
the present case whether the applicants have complied with the
requirement under Article 26 (Art. 26) of the Convention as to the
exhaustion of domestic remedies as the application is in any event
inadmissible for the following reasons.
The Commission notes that the applicants have been refused entry
permission on three separate occasions, and that the last decisions on
each application were from 1972, 1977 and 12 May 1994 respectively. As
regards the authorities' refusals to grant entry permission in 1972 and
1977 the Commission considers that the applicants have not complied
with the six months' time limit under Article 26 (Art. 26) of the
Convention.
It follows that the application in this respect has to be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
As regards the authorities' refusal to grant the 1990 application
for entry in the United Kingdom the Commission does not find that the
applicants have established the existence of family life within the
meaning of Article 8 (Art. 8) of the Convention between them and their
father. Thus, the applicants have always lived in Bangladesh and have
spouses and children there. They have seen their father only a few
times since he left Bangladesh more than 35 years ago. The applicants
can support themselves, the alleged sporadic money transfers from their
father not being sufficient to amount to dependency.
It follows that the remainder of the application is 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 First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy