B. ; S. ; AND K. v. THE UNITED KINGDOM



AS TO THE ADMISSIBILITY OF

Application No. 14416/88

by B.,

S. and K.

against the United Kingdom

        The European Commission of Human Rights sitting in private on

9 May 1989, the following members being present:

                MM.  J.A. FROWEIN, Acting President

                     S. TRECHSEL

                     G. SPERDUTI

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A. WEITZEL

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     H. VANDENBERGHE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

                Mr.  L. LOUCAIDES

                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 November

1988 by B., S. and K. against the

United Kingdom and registered on 1 December 1988 under file No.

14416/88;

        Having regard to:

     -  reports provided for in Rule 40 of the Rules of Procedure

        of the Commission;

- ii -

     -  the Commission's decision of 16 December 1988 to bring

        the application to the notice of the respondent Government

        and invite them to submit written observations on its

        admissibility and merits;

     -  the observations submitted by the respondent Government on

        24 February 1989 and the observations in reply submitted

        by the applicant on 12 April 1989;

        Having deliberated;

        Decides as follows:

THE FACTS

        The first applicant is a citizen of India, born in 1943.  He

is deemed by British immigration authorities to be an illegal entrant

to the United Kingdom, where he has resided since 1976.  He lives in

Birmingham.  The second applicant is his widowed sister-in-law who is

lawfully settled in the United Kingdom, as is the third applicant, her

mentally handicapped daughter, 23 years of age.  They live at

separate, but close, addresses in Birmingham.

        The applicants are represented by Messrs.  Moody and Woolley,

Solicitors, Derby, and Mr.  J. Friel, counsel.

        The facts of the case, as submitted by the parties, may be

summarised as follows.

A.      The particular circumstances of the case

        According to Home Office documents, submitted by the

applicants, the police and immigration officers, acting on information

received, apprehended the first applicant in June 1987 when he

initially stated that he had been admitted to the United Kingdom for

settlement in 1972.  He later claimed that he had been admitted as a

visitor in 1972 and during his few months stay had set up a market

trading business selling clothes.  There is no trace whatsoever in

Government records of him being admitted to the United Kingdom in

1972.

        On 21 October 1976 the first applicant, accompanied by his

step-daughter, was refused leave to enter the United Kingdom as

"doubtful" visitors.  He was travelling under the name of Ram.  They

had sought entry to attend the funeral of a nephew.  However,

following the intervention of a Member of Parliament, they were given

leave to enter until 8 November 1976.  The step-daughter was later

deported as an overstayer on a court recommendation.  She claimed that

the first applicant had returned to India three weeks after his entry,

but this was not confirmed by official records.

        On arrest in June 1987 the first applicant confirmed that he

had never left the country and that on entering in 1976 it had been

his secret intention to resume the market trading business he had

established with a friend in 1972.  He was using the surname Budan.

With the aid of interpretation, he had four Home Office interviews

which revealed several discrepancies in his account of his activities

in the United Kingdom.  He apparently said at the third interview in

February 1988 that since his brother had died his only remaining

family was in India and there was no reason why he should not return

there.  (The first applicant denies having said this.)  The Home

Office considered that the non-disclosure of his intention to work

(and stay on) made the first applicant an illegal entrant and on

21 June 1987 issued a notice to him that he would be removed from the

United Kingdom.  He was warned that he was liable to be detained

pending removal, although his temporary admission was authorised while

removal arrangements were being made.

        On 20 May 1988 the first applicant's representatives were

instructed by him to seek the regularisation of his immigration status

on the basis that he had been a businessman in the United Kingdom for

over ten years.  It was submitted on the applicant's behalf by way of

a letter dated 25 August 1988 that the Home Office had an unwritten

rule not to take action against an illegal immigrant or overstayer

provided that the person can prove beyond doubt that he had been in

the United Kingdom for ten years or more, and that it would be grossly

unfair if this rule were not applied even-handedly.

        On 27 October 1988 the Minister of State, Home Office,

informed the applicants' Member of Parliament that the illegal

entrant/removal decision was upheld with the following explanation:

        "It is the normal practice to remove those persons found

        to have entered the United Kingdom unlawfully, unless there

        are reasons, usually of an exceptional compassionate nature,

        for not doing so in a particular case.  I have reviewed

        Mr.  Budan's case in the light of your representations, but

        I am not persuaded that such circumstances obtain here.

        Mr.  Budan's length of unlawful residence here cannot of

        itself give him any entitlement to remain and, following

        your representations, immigration officers visited (the

        applicant's) business premises to assess his position

        there.  Enquiries revealed that Mr.  Budan is the majority

        share-holder of a small quilting business, having

        invested approximately £15,000.  Together with his two

        partners, he works in the business and they do not at

        present employ anyone else.  Mr.  Budan's business

        activities cannot avail him and it is evident that he

        would not be able to meet the full requirements of the

        (immigration) rules relating to businessmen and thereby

        qualify for an entry clearance to return once removed.

        His wife and five children have remained in India and

        in all the circumstances of the case arrangements for

        his removal to India as an illegal entrant will now

        proceed."

        In classifying the first applicant as an illegal entrant

rather than an overstayer he is denied any right of appeal to an

Adjudicator or Immigration Appeal Tribunal.

        On 11 November 1988 the applicants' representatives wrote to

the Secretary of State alleging, inter alia, that his immigration

officers had failed to investigate the first applicant's true

circumstances, concentrating merely on the first applicant's immediate

family and ignoring the fact that he maintains the other two

applicants.  It was stated on the applicants' behalf that the third

applicant had suffered brain damage as a baby.  She is mentally and

physically handicapped and can be violent with uncontrollable fits

which cannot be controlled by her mother, who is a small woman with

health problems of her own.  The two women are totally dependent on

the first applicant, financially, physically and emotionally.  This

was the first time that any compassionate circumstances had been put

to the Home Office.

        An application for judicial review was made on the grounds

that the Minister of State reached his decision that the applicant was

an illegal entrant "before the points of the case had been properly

investigated and without knowledge of all the facts of the applicant's

situation", that the first applicant was being given insufficient time

"to put his business affairs in order or to make proper provision for

his dependents" and that the removal decision "constitutes a

deliberate attempt to deny the applicant the opportunity to pursue his

application" to the Commission.  In support of the application for

judicial review it was emphasised, inter alia, that the second and

third applicants cannot go to India with the first applicant.  The

applicants' solicitors averred that the compassionate circumstances of

this case were put to the Home Office in October 1988 but were not

taken fully into account.  The application was refused on 12 January

1989.  An appeal is pending against that refusal.

        On 15 January 1989 the first and second applicants were

interviewed separately at their homes with the aid of interpreters.

        From these interviews the Government drew the following

conclusions:

        It is apparent that the first applicant does give some

financial, practical and moral support to the second and third

applicants, but he is not the sole mainstay nor are they totally

dependent on him.  As he works 10-12 hours a day he can be of little

physical assistance and he has his own immediate family in India to

support.  The second applicant has two sons and three other daughters

all living in the area, who visit regularly and are able to provide

family support; the second applicant owns their house mortgage-free

and she and her daughter receive £60 a week in State benefits.  The

first applicant said that his reason for not mentioning the second and

third applicants before was that he had not been asked - yet he had

previously told the interviewing officer that there was no reason for

him to remain in the United Kingdom.

        The applicants' case was reconsidered by the Secretary of

State but he maintained his decision to remove the first applicant,

the applicants being informed on 16 February 1989 of the reasons for

that decision in a letter to the applicants' Member of Parliament:

        "In the light of your representations I have again

        carefully reconsidered Mr.  Budan's case but I am not

        persuaded that circumstances exist of an exceptional

        compassionate nature which would make removal inappropriate.

        Mr.  Budan has previously attempted to stay on the basis

        of his claimed long residence and his position as a

        businessman and had not, prior to November 1988, given

        any indication that there were any other compassionate

        circumstances.  While there is every sympathy for

        Mrs.  Singh and her daughter's situation, their presence

        cannot avail him and there is reason to believe that

        the presence of Mr.  Budan is not such an important

        determining factor in their well-being as the family

        would have us believe.  Therefore arrangements will

        accordingly proceed for Mr.  Budan's removal to India

        as an illegal entrant."

        The applicants claim to have a strong dependent relationship,

the first applicant being the family mainstay.  As regards the third

applicant's poor health they have submitted unchallenged medical

reports which record that the third applicant is intellectually

backward with a marked disability on the left side of her body so that

she walks with difficulty and cannot remove her clothes.  She is

grossly obese and is liable to frequent violent outbursts, with which

her mother, the second applicant, who suffers from poor health herself

(diabetes and hypertension), cannot cope.  A consultant psychiatrist

concluded that the third applicant "is suffering from mental handicap

and paranoid psychosis requiring the assistance of her uncle, without

whom she would require institutional care.  The brain damage has also

resulted in a moderately severe physical handicap ..."

        These opinions also suggest that his sister-in-law is in need

of the first applicant's care.  He visits the two women daily and

gives them £25 to £30 a week, and has paid all necessary bills and

household items.  The second applicant's other children do not help

her.  The second and third applicants do not have adequate income from

social security benefit to exist, given the extra demands created by

the virtually housebound third applicant and the second applicant's

own ill-health.  It is accepted that these matters relating to

dependency were not put before the Home Office until a late stage, but

this was allegedly due to interpretation difficulties.

B.      Relevant domestic law and practice

        The Immigration Act 1971 requires non-British citizens to

obtain leave before entering the United Kingdom (section 3(1)(a) 1971

Act).  It is a criminal offence to make false representations to

immigration officers, who have the power to grant or refuse entry

(sections 4(1) and 26(1)(c) 1971 Act).  A person is classed as an

illegal entrant if he enters in breach of immigration laws not just by

way of a clandestine entry but also by way of fraud or deceit (section

33(1) 1971 Act and the Khawaja case (1984) AC 74).  An illegal entrant

may be removed without right of substantive appeal.  Such an appeal

can only be exercised outside the United Kingdom (para. 9 Schedule 2

and section 16(1) 1971 Act).  No other appeal on the merits lies; in

particular questions of compassionate circumstances cannot form the

sole basis for an appeal, although the immigration appellate

authorities could make recommendations on such matters following a

section 16(1) appeal, which recommendations are frequently followed by

the Home Secretary.

        Judicial review of a decision of the Home Secretary refusing

to lift removal directions may also lie if the Home Secretary left out

of account relevant factors or took into account irrelevant factors or

exercised his power "unreasonably".  A successful judicial review

application would lead to the quashing of the refusal to lift removal

directions.

COMPLAINTS

        The applicants complain that the deportation of the first

applicant would constitute a tragedy for the second and third

applicants, who claim to be dependent on him emotionally, physically

and mentally since the death of his brother in 1983.  Article 8 of the

Convention, the right to respect for family life, is invoked.

        The first applicant claims that he is no longer close to his

own wife and children in India although he has not abandoned them and

provides some financial support for them.  His truly dependent family

are now his sister-in-law and niece, who live close by.

        The applicants contend that if the first applicant were

deported the third applicant would probably have to be placed in an

institution where she would suffer a relapse.  Neither women are in a

fit state of health to travel to or live in India.  Their ties are

anyway with the United Kingdom.

        Insofar as the first applicant is treated as an illegal

entrant rather than an overstayer, who would have more rights of

appeal, the applicants submit that there is also a breach of Article

14 of the Convention in the case.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 11 November 1988 and

registered on 1 December 1988.  On 1 December 1988 the President of

the Commission refused the applicants' request that an indication

under Rule 36 of the Commission's Rules of Procedure be made to the

respondent Government to stay the first applicant's removal from the

United Kingdom.  That same day the Secretary to the Commission

notified the respondent Government of the introduction of the

application, pursuant to Rule 41 of the Rules of Procedure.

        After a preliminary examination of the case by the Rapporteur,

the Commission considered the admissibility of the application on

16 December 1988.  It decided to give notice of the case to the

respondent Government, pursuant to Rule 42 para. 2 (b) of the Rules of

Procedure, and to invite them to submit written observations on

admissibility and merits.  The Government submitted their observations

on 24 February 1989, to which the applicants replied on 12 April 1989.

        On 17 March 1989 the Commission refused a further request from

the applicants for an indication under Rule 36 of the Rules of

Procedure.

THE LAW

1.      The applicants complain that the removal of the first

applicant to India would constitute a violation of their right to

respect for family life ensured by Article 8 (Art. 8) of the Convention, the

relevant part of which provides 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."

        Whilst the Convention does not guarantee a right, as such, to

enter or remain in a particular country, the Commission has constantly

held that the exclusion of a person from a country where his close relatives

reside may raise an issue under Article 8 (Art. 8) of the Convention (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. 9285/81, Dec. 6.7.82, D.R. 29 p. 205).

        The Government have contended that the first applicant has

failed to exhaust domestic remedies either by an appeal under section

16 of the Immigration Act 1971 from outside the United Kingdom or by

seeking judicial review of the latest refusal of the Home Secretary on

16 February 1989 to lift directions for removal.  The applicants

contend that they have exhausted all effective domestic remedies,

there being, inter alia, no basis for a further challenge by way of

judicial review of the Home Secretary's decision which could not be

described as unreasonable for the purposes of domestic law.

        The Commission considers that it is not necessary to determine

whether the applicants have complied with the requirements of Article

26 (ARt. 26) of the Convention for it finds the application anyway manifestly

ill-founded for the following reasons:

        In the present case the Commission's first task is to examine

whether a sufficiently close link exists between the first applicant

and the other two applicants, his adult sister-in-law and niece, so as

to establish the kind of family life which attracts the protection of Article 8

(Art. 8) of the Convention.  The applicants claim to have established that

link, a claim contested by the Government.

        The Commission notes that the first applicant has a wife and

five children back in India, for whom he provides financial support.

He could not be said to have abandoned his direct responsibilities

towards them.  His present claim to support his sister-in-law and

niece has only arisen since November 1988 after it seems that all

other ways of attempting to persuade the Home Secretary to change his

decision to remove the first applicant as an illegal entrant had

failed.  It is undisputed that the second and third applicants have

major health problems.  However, they have other closer members of

their family resident nearby, they have their own mortgage-free home

and receive State benefits.  Whilst they may consider this assistance

inadequate at the present time and the first applicant provides some

help, this help is limited as he works a 10-12 hour day and does not

live with them.  It cannot be excluded that greater help may be

forthcoming from the immediate family of the second and third

applicants if urgently needed.

        In these circumstances the Commission finds that the

applicants have not established sufficiently close links to enable

them to claim to have suffered an interference with their right to respect for

family life, ensured by Article 8 (Art. 8) of the Convention, with the first

applicant's imminent removal to India, where his wife and children reside.  The

Commission concludes, therefore, 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 have also complained of discrimination contrary to

Article 14 (Art. 14+8) of the Convention, read in conjunction with Article 8,

insofar as the first applicant has fewer appeal rights, being classified as an

illegal entrant rather than an overstayer (a person who outstays a valid but

temporary leave of entry).

        Article 14 (Art. 14) of the Convention prohibits discrimination in the

securement of Convention rights and freedoms, differences in treatment

in this respect having to be objectively and reasonably based (Eur.

Court H.R., Belgian Linguistic judgment of 9 February 1967, Series A

no. 5, p. 34, para. 10).

        The Commission considers that, in principle, it cannot be

deemed to be arbitrary or unreasonable, given the State's wide

discretion in matters of immigration policy, for a State to consider

an illegal entry more reprehensible than overstaying and, in

consequence, to limit the former's appeal rights.  As regards the

facts of the present case, the Commission notes that the first

applicant has not seriously contested that he could be classed as an

illegal entrant.  In these circumstances the Commission finds no

evidence that the first applicant has suffered discrimination contrary

to Article 14 (Art. 14) of the Convention.  It therefore concludes that this

aspect of the case is also 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      Acting President of the Commission

          (H.C. KRÜGER)                        (J.A. FROWEIN)

 

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