AS TO THE ADMISSIBILITY OF
Application No. 17504/90
by Nelufa BABUL
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 19 February 1992, the following members being present:
MM.J.A. FROWEIN, President of the First Chamber
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
SirBasil HALL
Mr.C.L. ROZAKIS
Mrs.J. LIDDY
Mr.M. PELLONPÄÄ
Mr.M. de SALVIA, Secretary to the First 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 16 November 1990
by Nelufa Babul against the United Kingdom and registered on
29 November 1990 under file No. 17504/90;
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 British citizen, born in 1968 and resident in
Enfield. She is represented in the proceedings before the Commission
by Mr. M. Hafiz of Messrs. Hafiz and Co., solicitors practising in
London.
The facts, as submitted by the applicant and as may be determined
from the documents submitted with the application, may be summarised
as follows.
The applicant was born in the United Kingdom and was brought up
and educated there. Her parents, brothers and sisters are all British
citizens and are settled in the United Kingdom.
The applicant's husband ("B.") is a citizen of Bangladesh. He
was born in 1964. On 4 June 1985 B.applied to the Office of the
British High Commission, Dhaka for an entry clearance to enable him to
visit the United Kingdom, and in particular his brother. His
application was refused by an Entry Clearance Officer on the same day.
He was not satisfied that B. was a genuine visitor who would return at
the conclusion of any period granted.
On 13 July 1985 B. travelled to the United Kingdom without entry
clearance. On arrival he was refused entry but following the
intervention of a Member of Parliament he was granted temporary
admission. Leave to remain was later refused by the Secretary of State
on 26 November 1985.
Shortly after his arrival B. met the applicant at her parents
house where he stayed for two days. The applicant had lived in
Bangladesh between October 1978 and November 1980 and she and B. had
previously met on a number of occasions. B. visited the applicant on
two further occasions. On the second occasion the applicant asked him
to marry her.
On 8 August 1985 the applicant and B. were married. On 11 August
1985 they went through a Muslim religious ceremony of marriage. After
the marriage the applicant and B.went to live at the home of B.'s
brother in North Yorkshire. They later moved to London to live with
the applicant's parents so that B. could study.
On 20 February 1987 B. applied for judicial review of the
decision to refuse him entry. This application was dismissed on 9 June
1987 and removal directions were given to return B. to Bangladesh. B.
left of his own accord on 3 July 1987.
On 27 July 1987 B. applied to the British High Commission, Dhaka,
for an entry certificate to enable him to settle in the United Kingdom
as the applicant's husband.
On 12 June 1988, the applicant and B. were interviewed. At this
time the applicant was visibly pregnant and she subsequently gave birth
to a daughter on 20 October 1988 in the United Kingdom.
On 11 July 1988 B.'s application for entry clearance was refused
by an Entry Clearance Officer who was not satisfied that the marriage
was not entered into primarily to obtain admission into the United
Kingdom. B. appealed against this decision to an adjudicator. The
Adjudicator referred to "the evidence of intervening devotion".
However he had no doubts - and found - that the marriage was entered
into primarily for B.to obtain admission into the United Kingdom.
Accordingly he dismissed the appeal on 26 October 1989.
On 3 July 1990 the Immigration Appeal Tribunal granted B.leave
to appeal against the Adjudicator's determination.
During the course of the hearing before the Tribunal an affidavit
sworn by the applicant was submitted wherein the applicant stated that
she had lived with B. in Bangladesh from 4 July 1987 to August 1987,
from 5 October 1987 to 24 July 1988 and from 28 February 1989 to 27
August 1989. The applicant also stated that she did not keep in good
health during her stays in Bangladesh and that during the last visit
her child was constantly sick.
The Tribunal reached the following conclusion:
"It may be that as time has gone by devotion has grown
between [B.] and [the applicant] but we are left in no
doubt that admittance to this country was, at the time of
the refusal appealed against the primary purpose of the
marriage. The appeal is dismissed..."
The applicant was notified of this decision on 24 May 1990.
COMPLAINTS
The applicant complains that her rights under Articles 8 and 12
of the Convention have been violated. She also invokes Article 5 of
the Convention.
THE LAW
The applicant complains of the refusal of entry of her husband
to the United Kingdom and invokes Articles 5, 8 and 12 (Art. 5, 8, 12)
of the Convention.
The Commission recalls that Article 5 (Art. 5) guarantees the
right to liberty and security of person. It finds that the applicant's
reference to this provision is misconceived and has examined the
applicant's complaints under Articles 8 and 12 (Art. 8, 12) of the
Convention.
1.Article 8 para. 1 (Art. 8-1) of the Convention provides:
"Everyone has the right to respect for his private and
family life, his home and his correspondence."
The present case raises an issue under Article 8 (Art. 8) of the
Convention, for, 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 this provision (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).
Article 8 (Art. 8) of the Convention presupposes the existence
of a family life and at least includes the relationship that arises
from a lawful and genuine marriage even if a family life has not yet
been fully
established. The Commission notes that the applicant and B. have lived
together for short periods in Bangladesh since B.left the United
Kingdom and that they now have a child.
The Commission recalls, however, that the State's obligation to
admit to its territory aliens who are relatives of persons resident
there will vary according to the circumstances of the case. The Court
has held that Article 8 (Art. 8) does not impose a general obligation
on States to respect the choice of residence of a marriedcouple or to
accept the non-national spouse for settlement in the State concerned
(Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May
1985, Series A no. 94, p. 34 para. 68).
The Commission has had regard to the findings of fact by the
Adjudicator, upheld by the Immigration Appeal Tribunal, and their
conclusion that, in the circumstances of the instant case, it seemed
that the primary purpose of the marriage was to effect the husband's
entry into the United Kingdom.
The Commission also notes that at the time of the marriage the
applicant knew that her husband had already been refused permission to
settle in the United Kingdom. His acceptance for settlement could not,
therefore, be expected in view of the relevant Immigration Rules.
Furthermore the applicant has not shown that there were obstacles to
establishing family life in her husband's home country where she had
already lived for a short period before her marriage.
In these circumstances the Commission concludes that the decision
to refuse the applicant's husband entry to the United Kingdom has not
failed to respect the applicant's right to respect for family life,
ensured by Article 8 para. 1 (Art. 8-1) of the Convention. Accordingly
this aspect of the case is manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
2.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 law
governing the exercise of this right."
The Commission notes that the applicant married her husband
unhindered. Furthermore, for the same reasons given above in respect
of Article 8 (Art. 8) of the Convention, the Commission finds that
Article 12 (Art. 12) of the Convention also does not impose a general
obligation upon Contracting States to respect a married couple's choice
of the place where they wish to found a family or to accept non-
national spouses for settlement to facilitate that choice. It follows
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, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First ChamberPresident of the First Chamber
(M. de SALVIA)(J.A. FROWEIN)
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