AS TO THE ADMISSIBILITY OF
Application No. 16243/90
by Kuntibai Suka GORANIYA
against the United Kingdom
The European Commission of Human Rights sitting in private on
12 October 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
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 26 May 1989 by
Kuntibai Suka GORANIYA against the United Kingdom and registered on
6 March 1990 under file No. 16243/90 ;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission ;
- the observations submitted by the respondent Government on
5 September 1990 and the observations in reply submitted by the
applicant on 16 October and 2 November 1990 ;
- the information provided by the applicant on 10 January 1991 ;
- the information provided by the Government on 25 November 1991 ;
- the information provided by the applicant on 6 April 1992 ;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a naturalised British citizen. She was born in
India in 1957 and went to the United Kingdom with her family in 1983.
She was granted indefinite leave to remain in 1985 and became a
naturalised British citizen on 14 December 1989. She lives in
Leicester and is represented before the Commission by Messrs. Singh &
Ruparell, Solicitors, London.
The facts of the present case, as submitted by the parties, may
be summarised as follows.
A. The particular circumstances of the case
The application arises over the original refusal by British
immigration authorities to allow the applicant's Indian husband to join
her in the United Kingdom as the husband was deemed to have contracted
the marriage for the primary purpose of emigrating to the United
Kingdom.
The background to the marriage, contracted on 15 February 1985,
is that the applicant first met her husband in India in 1980 and they
kept in touch regularly for a few months until Mr. Goraniya left for
Dubai in 1981. They did not see or write to each other, although the
applicant wrote a two line letter to her sister in 1984 asking her to
invite Mr. Goraniya to visit her in the United Kingdom, but he did not
reply.
The applicant's husband is an Indian national born in 1958. He
applied for a three month entry clearance to the United Kingdom as a
visitor in May 1984, ostensibly to visit his "uncle" who was in fact
the applicant's father. This application was refused in September
1984. He had failed to substantiate his claims that he had had an
invitation to visit the "uncle", who he had only met once. He had also
failed to satisfy the immigration authorities how he came to be able
to finance such a trip to England or whether he would be returning to
Dubai to work as a mason. He had told the immigration officer that his
whole family lived in India and that he had no marriage plans. The
immigration officer concluded that the man was not genuinely seeking
entry as a visitor who was intending to leave the United Kingdom after
the three month period. (The applicant's husband appealed against the
decision but the appeal was withdrawn in December 1985.)
Mr. Goraniya apparently arrived in the United Kingdom on 9
January 1985 and requested entry clearance as a visitor again. This
was refused but he was granted temporary admission following
representations from a Member of Parliament. Later in the month he
made his way without prior arrangement to the applicant's house. They
did not take to each other on that occasion. However, they met again
three weeks later when Mr. Goraniya proposed to her, and they married
shortly afterwards at a civil ceremony on 15 February 1985. They then
lived together for three weeks from 15 February until 8 March 1985,
when the husband voluntarily returned to Dubai. Mr. Goraniya did not
apply for entry clearance to join his wife until July 1986, more than
a year later, and he did not attend two appointments for interview in
connection with that application before he was finally interviewed in
September 1986, 18 months after he had left the United Kingdom. Before
appeal instances it was said that the delay in attending the interview
was because the husband had had passport difficulties. Subsequently it
was submitted to the Commission that the husband had not received the
letters notifying him of the interview appointments.
The Secretary of State formed the impression that the husband had
no great eagerness to join the applicant, although the couple
apparently corresponded regularly. The Secretary of State also noted
the applicant's statement that she would not leave the United Kingdom
to live with her husband because of her parents and other relatives
settled in the United Kingdom. He took into account the fact that the
husband was a low paid manual worker and that the situation in Dubai
was not altogether stable; by contrast, the applicant was a house owner
with a stable job as a sewing machine supervisor. The Secretary of
State concluded, therefore, that the marriage had been contracted for
the primary purpose of gaining the husband's admission to the United
Kingdom. This is a ground for exclusion under the Statement of Changes
in Immigration Rules HC 169, paragraph 46(a).
The refusal of entry clearance was upheld by an Adjudicator on
21 October 1988. He was not convinced that the couple had had genuine
contacts prior to the marriage, which he noted had only been a civil
not a Hindu religious ceremony. The credibility of the testimony of
the applicant's husband was impaired by the fact that he had not
announced to the immigration authorities when he entered in January
1985 that he planned to marry the applicant. Moreover he had not
supported the applicant financially since the marriage, whereas the
applicant was a "very good catch" for him both financially and by
virtue of her British nationality. Whilst not impugning the
applicant's motives for the marriage, the Adjudicator was not convinced
that the husband's motives were not to obtain entry to the United
Kingdom. The Adjudicator's decision was confirmed by an Immigration
Appeal Tribunal on 7 March 1989.
The applicant visited her husband in Dubai. A child was born to
the couple in the United Kingdom on 7 November 1989. The husband
returned to India in December 1989 on the death of his mother and
stayed there in view of the ensuing Middle East crisis. He again
applied for a one month entry clearance to the United Kingdom as a
visitor. However, he failed to disclose in his application form his
three previous unsuccessful applications for entry. The Entry
Clearance Officer deemed this to be a deliberate deceit. He therefore
concluded on 13 December 1990 that it was not Mr. Goraniya's intention
merely to enter the United Kingdom as a visitor and admission was
refused. The husband stated that the whole interview with the Entry
Clearance Officer was hostile towards him and he denied refusing to
disclose information when he knew that the Entry Clearance Officer
already had a complete file on him.
The applicant informed the Commission in April 1992 that she was
expecting another baby.
On 8 July 1992 the Government informed the Commission that they
had decided to authorise the issue of entry clearance to the
applicant's husband.
B. The relevant domestic law and practice
By section 3(1)(a) of the Immigration Act 1971,
"Except as otherwise provided by or under this Act,
where a person is not a British citizen -
(a) he shall not enter the United Kingdom unless given
leave to do so in accordance with this Act."
Under section 3(2) of the 1971 Act, the Secretary of State has
a duty to lay before Parliament statements of the rules laid down by
him as to the practice to be followed in the administration of that Act
for regulating the entry into and stay in the United Kingdom of persons
required to have leave to enter.
The relevant rule at the date of Mr. Goraniya's application to
enter the United Kingdom, which is the subject of this application, was
paragraph 46 of the Rules set out in House of Commons paper 169, as
amended by HC 503, which read as follows:
"Spouses
46. A passenger seeking admission to the United Kingdom as the
spouse of a person who is present and settled in the UK, or who
is on the same occasion being admitted for settlement, must hold
a current entry clearance granted for that purpose. An entry
clearance will be refused unless the entry clearance officer is
satisfied:
(a) that the marriage was not entered into primarily to
obtain admission to the UK; and
(b) that each of the parties has the intention of living
permanently with the other as his or her spouse; and
(c) that the parties to the marriage have met; and
(d) that there will be adequate accommodation for the
parties and their dependents without recourse to public
funds in accommodation of their own or which they occupy
themselves; and
(e) that the parties will be able to maintain themselves
and their dependents adequately without recourse to public
funds."
An earlier equivalent of this paragraph was interpreted in the
case of Immigration Appeal Tribunal v. Hoque and Singh [1988] Imm. AR
216. That interpretation may be said to be applicable to the present
rule and may be summarised as follows:
(a) under this paragraph, the onus falls on the applicant to
satisfy the entry clearance officer on the balance of
probabilities that, at the time when the marriage took place, his
primary purpose was not to obtain admission to the United Kingdom
and that the other requirements of the rule are duly satisfied;
(b) in considering the application the entry clearance officer
is not limited to such evidence as the applicant may put before
him, but is entitled to make enquiries of his own and test such
evidence as the applicant chooses to put forward;
(c) in considering the application it is the intention of the
applicant which is the central consideration. However, in
assessing the purposes of the marriage, the intentions of both
parties will be relevant;
(d) the mere fact that an applicant can satisfy the requirement
of paragraph 46(b) does not by itself enable him to satisfy the
requirement of paragraph 46(a). Nevertheless, it must be borne
in mind that paragraph 46(a) is looking at the intention of the
parties at the time when the marriage was entered into;
(e) however, paragraphs (b) and (c) spell out matters which
will in any event be relevant to the proper consideration of
paragraph (a). To that extent an applicant who satisfies the
entry clearance officer of the requirements of (b) and (c) is
better placed to satisfy him of (a). Evidence of intervening
devotion of the parties may make it easier to satisfy the entry
clearance officer that the parties' primary purpose in entering
into the marriage was not the extraneous purpose at which
sub-paragraph (a) is aimed;
(f) the very fact that an applicant is applying for entry under
paragraph 46 usually presupposes that he intends to settle in the
United Kingdom with his wife after the marriage or when he has
received entry clearance, as the case may be. Accordingly, it
is "fatally easy" but wrong to treat an admission on his part
that he seeks to obtain admission to or remain in the United
Kingdom as evidence that this was the primary purpose of the
marriage.
Section 13(1) of the Immigration Act 1971 gives a right of appeal
on fact and law to an Adjudicator. Appeal from an Adjudicator's
decision may be made to an Immigration Appeal Tribunal under section
20 of the 1971 Act. Judicial review of the decision of these appellate
authorities may lie if they or the entry clearance officer concerned
left out of account a factor that should have been taken into account
or took into account a factor they should have ignored, or did not take
the decision according to the requirements of the law.
COMPLAINTS
The applicant complains that the original refusal to allow her
husband to join her in the United Kingdom constituted an unjustified
interference with her right to respect for family life, ensured by
Article 8 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 May 1989 and registered on
6 March 1990. After a preliminary examination of the case by the
Rapporteur, the Commission considered the admissibility of the
application on 4 April 1990. It decided, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on admissibility and merits. The
Government's observations were submitted on 5 September 1990, after two
extensions of the time-limit fixed for this purpose. The applicant
replied, in two stages, on 16 October and 2 November 1990. The
applicant was granted legal aid by the President of the Commission on
22 January 1991.
On 16 January 1991 the applicant informed the Commission that her
husband had been refused entry clearance as a visitor to the United
Kingdom. The Government explained the reasons for that refusal in a
letter dated 25 November 1991.
On 6 December 1991 the Commission decided, in accordance with
Rule 50 para. (a) of the Rules of Procedure, to request the applicant's
comments on the Government's letter of 25 November 1991 and to provide
detailed evidence about her visits to Dubai or India in order to be
with her husband and about the couple's correspondence and telephone
calls. On 6 April 1992 the applicant replied only commenting on the
Government's letter, but not providing any of the evidence which had
been requested.
On 8 July 1992 the Government informed the Commission that they
had decided to authorise the issue of entry clearance to the
applicant's husband. On 22 July 1992 the applicant's representative
informed the Commission that, in the applicant's view, the grant of a
visa to Mr. Goraniya did not invalidate or vitiate the application,
which was therefore maintained.
THE LAW
The applicant complains of the original refusal of entry
clearance to enable her Indian husband to join her in the United
Kingdom and she invokes Article 8 (Art. 8) of the Convention.
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."
However the Commission notes that the applicant's husband has now
been issued with entry clearance to join her in the United Kingdom.
In view of this development, the Commission concludes that the grant
of entry clearance to the applicant's husband fully resolves the
factual basis of her application and that the applicant can no longer
claim, under Article 25 (Art. 25) of the Convention, to be a victim of
a violation of the Convention.
It follows that 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 Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy