AS TO THE ADMISSIBILITY OF
Application No. 12408/86
by Mohammed DILAWAR
against the United Kingdom
The European Commission of Human Rights sitting in private
on 12 March 1987, the following members being present:
MM. C. A. NØRGAARD, President
G. SPERDUTI
J. A. FROWEIN
E. BUSUTTIL
G. TENEKIDES
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Sir Basil HALL
Mr. F. MARTINEZ
Mr J. RAYMOND, Deputy 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
12 September 1986 by Mohammed DILAWAR against the United Kingdom and
registered on 19 September 1986 under file No. 12408/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of Pakistan. He is a farmer by
profession and resides in London. The applicant is represented before
the Commission by Mr J. Fraser, M.P.
The facts, as submitted by the applicant and according to
official documents submitted, may be summarised as follows:
The applicant was admitted to the United Kingdom on 23 December
1984 on a two month visitors' permit to visit his step-brother. He
had informed the Immigration Officer that he lived on the family farm
in Pakistan and was involved in the family business. On 11 February
1985 the applicant applied for a six month extension of stay, stating
that he intended to return to Pakistan thereafter to be married. His
stay was extended.
On 29 March 1985 the applicant married a woman of Pakistan
origin lawfully and permanently settled in the United Kingdom. They
had met at the step-brother's house in the last week of February 1985.
A few days later she had proposed marriage to him and he had accepted
two weeks later. They had decided to marry quickly because they were
in love. The applicant's wife had to await a final divorce decree
from her previous marriage. This decree was made in the last week of
March 1985, the week in which she then immediately married the
applicant. The wife is a social worker by profession; the couple
live in her house, shared by her sister and family, and live off her
income. She first entered the United Kingdom in 1981 and had married
a British citizen, a marriage arranged by her parents. Her husband's
alleged violence caused her to leave him after three months.
On 4 April 1985 the applicant applied for leave to remain in
the United Kingdom on the basis of his marriage. When interviewed by
an Immigration Officer the applicant's wife stated that she did not
wish to return to Pakistan because she preferred her independence.
Her parents, two brothers and three sisters live in Pakistan. The
applicant, when interviewed, stated that he had no qualms breaking
off his previous engagement as he had never met his fiancée. His wife
wished to remain in the United Kingdom and he was happy to do so. He
further stated that his primary reason for the marriage was love of
his wife, who would, as a divorcee, allegedly have had difficulty
re-marrying.
Given the applicant's original assurances on entry that he
would not seek an extension of stay and that he had a fiancée in
Pakistan, the Secretary of State was not satisfied that the
applicant's marriage was not entered into primarily to obtain
settlement and he, therefore, refused the application for leave to
remain, pursuant to the Statement of Changes in Immigration Rules
HC 169 para. 126 (a) which provided as follows:
"Where a man admitted in a temporary capacity marries a
woman settled here, an extension of stay or leave to
remain will not be granted, nor will any time limit on
stay be removed, if there is reason to believe:
(a) that the marriage was entered into primarily to
obtain settlement here; ...." (1)
On appeal the Adjudicator held, on 16 May 1986, that he did
not accept that the applicant and his wife had "been truthful about
the circumstances in which they came to be married". He also did not
accept that a divorced woman would experience difficulties in re-
marrying according to Islamic custom. He held that "no convincing
reason has been advanced for the marriage taking place so hurriedly.
It seems .... that the inference is that the parties wished this to be
accomplished before the applicant's authorised stay in the United
Kingdom expired.... It is the appellant's obligation under the
immigration rules to show on balance of probabilities that his
primary purpose in marrying is not to achieve settlement in the United
Kingdom." The Adjudicator did not find it "credible that about three
months after his arrival in this country as a visitor, being well
established and being engaged to be married in Pakistan, that applicant> met a woman who proposed marriage to him within a few days which he instantly accepted without consideration of the circumstances in which the parties would live. The inference .... is that his primary purpose in marrying was to achieve settlement in the United Kingdom. The appeal is therefore dismissed." This decision was upheld by the Immigration Appeal Tribunal on 13 June 1986. The couple have apparently had a child in the meantime. COMPLAINTS The applicant complains that the refusal of British immigration authorities to allow him to remain in the United Kingdom is in breach of Article 12 of the Convention because it prevents the applicant and his wife from founding a family within the United Kingdom. It is contended that the effect of the decision is to require the applicant to return to Pakistan, to which country it is not practicable for his wife and child to go. ____________ (1) As of 26 August 1985 this provision was replaced by a new paragraph 124 which reads as follows: "Where a person with limited leave seeks an extension of stay on the basis of marriage to a person settled here, an extension will not be granted unless the Secretary of State is satisfied: (a) that the marriage was not entered into primarily to obtain settlement here ...." THE LAW The applicant has complained that the refusal of British immigration authorities to allow him to remain in the United Kingdom is in breach of Article 12 (Art. 12) of the Convention. Article 12 (Art. 12) of the Convention guarantees the right to marry and found a family. However the applicant has clearly suffered no obstacle, either in law or in practice, to his marriage or his founding a family. This aspect of his case is, therefore, manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. The present case nevertheless raises an issue under Article 8 (Art. 8) of the Convention, the relevant part of which provides as follows: "1. Everyone has the right to respect for his private and 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). In the present case the Commission notes that the applicant entered the United Kingdom as a visitor, assuring the immigration authorities that he intended to return to Pakistan to marry and continue working in his family's farming business. He contracted his marriage at a time when he was fully aware that his immigration status was unsettled. There do not appear to be any insurmountable obstacles to his wife, who is of Pakistani origin, and his child following him to Pakistan. His wife has only lived in the United Kingdom since 1981 and the child is of an adaptable age. The applicant has not contested the lawfulness of the immigration authorities' refusal, whose decision was taken to enforce immigration controls pursuant to the Statement of Changes in Immigration Rules HC 169. Thus, in the circumstances of the present case, even though the refusal of leave to remain constitutes an interference with the applicant's right to respect for family life under Article 8 para. 1 (Art. 8-1) of the Convention, the Commission must attach significant weight to the reasons for the refusal. The Commission finds with regard to the second paragraph of Article 8 (Art. 8) that there are no elements concerning respect for family life which might outweigh valid considerations relating to the proper enforcement of immigration controls. In this respect the Commission would emphasise the close connection between the policy of immigration control and considerations pertaining to public order. The Commission is of the opinion, 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 "prevention of disorder" under the second paragraph of Article 8 (Art. 8), as a legitimate measure of immigration control. Accordingly, this aspect of the application must also be rejected as being 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. Deputy Secretary to the Commission President of the Commission (J. RAYMOND) (C.A. NØRGAARD)
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