AS TO THE ADMISSIBILITY OF
Application No. 19628/92
by R.B.
against the United Kingdom
The European Commission of Human Rights sitting in private
on 29 June 1992, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
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 8 November
1991 by R.B. against the United Kingdom and registered on 12
March 1992 under file No. 19628/92;
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 the United Kingdom born in
Bangladesh in 1980. She is represented before the Commission by
Messrs James & Co., Solicitors, Bradford.
The facts of the present case, as submitted by the applicant
and which may be deduced from documents lodged with the
application, may be summarised as follows.
The applicant's father, of Bangladeshi origin, went to the
United Kingdom in 1959 and became a British citizen in 1966. He
married the applicant's mother, also a Bangladeshi, in 1967.
Three weeks later he married another Bangladeshi woman, who
joined him in the United Kingdom in 1989. That year the
applicant and her elder sister (born in 1971) were also admitted
to the United Kingdom as their father's offspring, paternity
having been established by DNA blood testing.
The applicant's mother applied to enter the United Kingdom
in 1990, but her application was refused as immigration
legislation provides that wives and minor children who do not
have British citizenship or the right of abode in the United
Kingdom would be allowed entry if the husband/father could
accommodate them, but only one wife would be so permitted.
Section 2 of the Immigration Act 1988 provides that a woman would
not be granted a certificate of entitlement to the right of
abode, on the basis of a polygamous marriage, if another woman
had already been admitted to the United Kingdom as the wife of
the same husband. The intention of Parliament, according to the
Home Office Ministers' explanation to the applicant's lawyers in
a letter dated 16 January 1991, is to prevent the formation of
polygamous households, the practice of polygamy being
unacceptable to the vast majority of people in the United
Kingdom. The applicant's mother has appealed against the refusal
of entry to an Adjudicator, but it is alleged that the appeal
holds no prospect of success in view of this legislation.
COMPLAINTS
The applicant complains of an infringement of her right to
respect for family life and alleges that the refusal to allow her
mother to enter the United Kingdom as her father's wife is
discriminating on grounds of sex in that, inter alia, it allows
the husband to choose the wife who shall join him in the United
Kingdom.
THE LAW
1. The applicant complains of the refusal by the British
immigration authorities to grant her mother a certificate of
entitlement as her father's wife which would enable her to join
the applicant and her father in the United Kingdom. It was
refused because the marriage is polygamous and the applicant's
father already has a wife settled with him in the United Kingdom.
The Commission does not consider that the application should
be dismissed for non-exhaustion of domestic remedies, as
envisaged by Article 26 (Art. 26) of the Convention, because the
appeal by the applicant's mother to the Adjudicator appears to
have little prospect of success in view of the provisions of
Section 2 of the Immigration Act 1988 which prevent more than one
foreign wife of a man settled in the United Kingdom being
entitled to join him there.
The Commission recalls that whilst the Convention does not
guarantee a right, as such, to enter a particular country, the
exclusion of a person from a country where his or her close
relatives reside may raise an issue under Article 8 (Art. 8) of
the Convention (eg. 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 relevant part of Article 8 (Art. 8) of the Convention
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 ... for the protection of ...
morals, or for the protection of the rights and
freedoms of others".
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 although family
life may not have been fully established. The Commission notes
that the applicant's parents have been married since 1967 even
if there is no evidence in the case-file that they have lived
together for any prolonged period of time. The applicant lived
with her mother for the first nine years of her life. A family
life has, therefore, been established in the present case.
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 married couple 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, paras 67 and 68). Nevertheless, in the circumstances of
the present case the Commission concludes that the refusal of the
certificate of entitlement and, as a consequence, the refusal of
entry to the applicant's mother, constituted an interference with
the applicant's right to respect for family life within the
meaning of Article 8 para. 1 (Art. 8-1) of the Convention. The
question arises, therefore, whether this interference was
justified under the second paragraph of Article 8 (Art. 8).
The Commission notes that the interference was in accordance
with the law, namely, Section 2 of the Immigration Act 1988,
which prevents more than one foreign wife joining the husband
already settled in the United Kingdom and is intended to prevent
the formation of polygamous households, the practice of polygamy
being deemed unacceptable to the majority of people who live
there. The aim of the provision would appear, therefore, to be
the preservation of the Christian based monogamous culture
dominant in that country. The Commission considers that such an
aim is legitimate and falls within the scope of the protection
of morals or the rights and freedom of others within the meaning
of Article 8 para. 2 (Art. 8-2) of the Convention.
In assessing whether the interference with the applicant's
family life was necessary in a democratic society, the Commission
recalls that the Contracting States have a certain margin of
appreciation in the field of immigration policy (cf. Eur. Court
H.R., Berrehab judgment of 21 June 1988, Series A No. 138, p. 15-
16, para. 28). Furthermore, in establishing an immigration
policy on the basis of family ties, a Contracting State "cannot
be required to give full recognition to polygamous marriages
which are in conflict with their own legal order" (mutatis
mutandis, No. 14501/89, Alilouch El Abasse v. the Netherlands,
Dec. 6.1.92 unpublished). In this connection the Commission
notes that for centuries it has been an offence in the United
Kingdom, by virtue of the criminal law on bigamy, to contract a
marriage with more than one woman at a time on United Kingdom
territory.
As regards the facts of the present case, the Commission
observes that when the applicant's parents decided that she
should join her father in the United Kingdom it was clear from
the domestic law that the mother had no entitlement to enter and
that she would be separated from her daughter. Despite over 20
years of marriage her parents had not sought to establish their
family life together either in Bangladesh or in the United
Kingdom as they might have done. The applicant's father chose
instead to have his second wife join him in the United Kingdom.
This decision must have been taken by him and the family knowing
that the applicant and her mother would face immigration
difficulties as a result. Moreover there is no evidence in the
case-file that prior to the Immigration Act 1988 the applicant's
father would have been entitled to have more than one foreign
wife join him. He must have been aware of the general
disapproval of polygamy in the United Kingdom ever since his
arrival there.
In the circumstances of the case the Commission is of the
view that the family life circumstances in the present case do
not outweigh the legitimate considerations of an immigration
policy which rejects polygamy and is designed to maintain the
United Kingdom's cultural identity in this respect. It finds,
therefore, that the interference with the applicant's right to
respect for family life was in accordance with the law and
justified as being necessary in a democratic society for the
protection of morals and the rights and freedoms of others.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
2. The applicant also complains of discrimination, in
particular sexual discrimination, arising out of the facts of her
case.
Article 14 (Art. 14) of the Convention requires States to
secure Convention rights "without discrimination on any ground
such as sex ...". However the Commission finds no evidence of
sexual discrimination on the part of the respondent Government
in the present case. The relevant domestic immigration law
permits, in principle, a British citizen or an alien settled in
the United Kingdom, to be joined by his or her foreign spouse.
The entitlement is granted to just the one spouse for the
duration of the marriage. The discrimination of which the
applicant complains flows essentially from the practice of
polygamy by the applicant's father for which the respondent
Government is not answerable under the Convention.
It follows that this part of the application is also
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 Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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