AS TO THE ADMISSIBILITY OF
Application No. 32339/96
by Michael Anthony GORMAN
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 9 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the 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 4 April 1996 by
Michael Anthony GORMAN against the United Kingdom and registered on
22 July 1996 under file No. 32339/96;
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 1951 and currently
resident in Manchester. Before the Commission he is represented by
Baileys Shaw & Gillett, solicitors, practising in London. The facts
as submitted by the applicant may be summarised as follows.
The applicant is an engineer and designer in the oil and nuclear
industries and the nature of his employment is such that he spends much
time on postings outside the United Kingdom. From September 1990 to
September 1992 he was posted in Nigeria, from September 1992 to
March 1994 in Kuwait and from October to November 1994 in Thailand.
From January to April 1995 the applicant worked in Abu Dhabi and in May
of that year the applicant returned to the United Kingdom to undertake
a computer course to enhance his career prospects. He returned to
Nigeria to work from July to November 1995 and his current contract in
Manchester began in March 1996, the estimated duration of which is four
to five years.
Shortly after being posted to Nigeria in 1990 the applicant met
P., a Nigerian citizen born in 1969 and resident in Lagos. They formed
an intimate relationship which has continued since then and although
they are not formally engaged to be married, the couple intend to marry
at some stage. Since September 1991 the applicant has provided P. with
economic support amounting to approximately £1,000 per month. He has
also provided her with lump sums of money at various times and
accordingly she is financially dependent on him. In Lagos, P. lives
with her half sister and family and she is in close contact with her
own family, in particular with her mother. During the applicant's stay
in Nigeria in 1990 the couple did not cohabit, but P. spent three or
four nights a week at his home. Since the applicant's posting outside
Nigeria the couple have endeavoured to spend as much time as practical
with each other during the applicant's holiday time and to that end
have spent holidays and visits together in Nigeria and elsewhere.
P. requires a visa to visit to the United Kingdom. The applicant
has sponsored P. to make a visit of more than three months duration on
various occasions. Her first application for a visitor's visa to the
United Kingdom was rejected following an interview at the British High
Commission in Lagos on 18 April 1991. P. subsequently obtained visa
clearance for Portugal and she and the applicant spent a three week
holiday there instead. On her return to Nigeria a ticketing error
meant that she was required to travel through the United Kingdom. When
the problem was realised she was granted temporary admission to Gatwick
until the next flight to Lagos and she honoured the terms of her
admission, leaving on the next available flight to Nigeria.
Her second application for a visitor's visa was refused on
10 July 1991. The grounds given for the rejection were that the Entry
Clearance Officer (ECO) was not satisfied that she was a genuine
visitor intending to remain only for the period stated.
A third application for a visitor's visa was made by P. early in
1992 but at the interview on 9 April 1992 the ECO did not open the file
containing new documentation submitted in favour of her application and
her request was rejected. In December 1992 the applicant and P. spent
a holiday in Cyprus before the applicant took up a post in Kuwait. On
two occasions in 1993 P. obtained a visit visa for France and once in
Spain in 1994 where the couple spent a brief holiday. She returned to
Lagos after each visit abroad.
A fourth application for a visitor's visa to the United Kingdom
was made in 1994 and entry was again refused following interview on
25 November 1994 despite representations made to the High Commission
in Lagos by the applicant's solicitor. A Refusal Notice was issued
stating that she had been refused a visa because the ECO was not
satisfied that she would leave the UK at the end of the visit. He
noted that she was "not at all well established" in Nigeria, was
effectively unemployed and financially dependent upon the applicant who
was a British citizen living in the United Kingdom.
On 1 September 1994 the applicant made an application for leave
to apply for judicial review of the decision of the ECO in Lagos of
25 April 1994 which was refused by the High Court on 11 October 1994.
A renewed application was rejected by the High Court on 8 February 1995
after an oral hearing. The High Court found principally that the
reasons for the refusal were sufficiently given and that the conclusion
was one to which the ECO was legitimately entitled to come.
The applicant submitted a renewal of his application for leave
to apply for judicial review to the Court of Appeal on 15 February 1995
and on 12 October 1995 leave to apply was refused. Before the Court
of Appeal the applicant claimed that the ECO did not weigh the positive
reasons for granting the visitor's visa against the negative and
therefore the conclusion he reached was inadequate and flawed. The
Court of Appeal did not accept this argument and found that it was not
necessary for the ECO to express the weighing of evidence in the
reasons given for his decision. Moreover, the Court considered that
the reasons given by the ECO were sufficient for the applicant to know
the grounds upon which he had reached the decision and also that it was
unarguable that the reasons were inadequate.
COMPLAINTS
1. The applicant complains of a violation of his right to respect
for private and family life contrary to Article 8 of the Convention.
In particular he claims that by denying P. a visitor's visa which
restricts their relationship to tourist visits abroad and prevents her
from meeting his family, friends and home the applicant and P. are
precluded from developing those parts of their relationship which can
only be developed in the United Kingdom.
2. The applicant also complains that he has no access to an
effective remedy contrary to Article 13 of the Convention with respect
to the arguable breach of Article 8. In particular, he claims that he
has no right of appeal where the adjudicator can review the facts.
THE LAW
1. The applicant complains of a violation of his right to respect
for private and family life under Article 8 (Art. 8) of the Convention.
Article 8 (Art. 8) provides that
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
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."
The Commission does not find it necessary to examine whether the
relationship between the applicant and P. amounts to private or family
life for the purposes of Article 8 (Art. 8) because the complaints made
are manifestly ill-founded for the reasons set out below.
The Commission recalls according to its established case-law that
while Article 8 (Art. 8) of the Convention does not in itself guarantee
a right to enter or remain in a particular country, issues may arise
where a person is excluded, or removed from a country where his close
relatives reside or have the right to reside (see 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. 8.7.82, D.R. 29, p. 205).
However, the Commission notes 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 that country (Eur.
Court HR, Abdulaziz, Cabales and Balkandali v. the United Kingdom
judgment of 28 May 1985, Series A no. 94, p. 94, para. 68). The
Commission considers that this applies to situations where members of
a family, other than spouses, are non-nationals. Whether removal or
exclusion of a family member from a Contracting State is incompatible
with the requirements of Article 8 (Art. 8) will depend on a number of
factors: the extent to which family life is effectively ruptured,
whether there are insurmountable obstacles in the way of the family
living in the country of origin of one or more of them, whether there
are factors of immigration control (eg. history of breaches of
immigration law) or considerations of public order (eg. serious or
persistent offences) weighing in favour of exclusion (see eg. Nos.
9285/81, Dec. 6.7.82, D.R. 29, p. 205 and 11970/86, Dec. 13.7.87
unpublished). These factors apply equally to the relationship of the
applicant and P.
In the present case, the Commission notes that the applicant and
P. are not formally engaged, though it is stated that they intend to
marry eventually. It observes that the applicant states that it is not
their intention currently to enter into permanent cohabitation or to
reside permanently in the United Kingdom. While it appears that P. has
obtained visitor's visas for other European countries and has always
complied with their requirements, the Commission notes that the refusal
of the Entry Clearance Officer was based on his finding that he was not
satisfied that P. was genuinely intending to return to Nigeria after
her visit. He noted that she was "not at all well established" there,
was effectively unemployed and financially dependent upon the applicant
who was a British citizen living in the United Kingdom.
It appears that the refusal of a visitor's visa affects only a
limited aspect of the applicant's relationship with P., namely that
which relates to meeting his family. Although the Commission
recognises that this may not be without significance to the further
development of their relationship, it notes that the couple have
nonetheless had the opportunity to spend considerable time together in
Nigeria and elsewhere and that their relationship has developed as a
result. Consequently, having regard to the nature of their
relationship and the degree of interference disclosed by the refusal
of a visitor's visa the Commission is not satisfied that there are any
elements concerning respect for private or family life which in this
case outweigh the valid considerations relating to the proper
enforcement of immigration controls. It concludes that the decisions
of the authorities do not disclose any lack of respect for the
applicant's private or family life.
Accordingly, the Commission finds that this complaint must be
declared inadmissible as manifestly ill-founded pursuant to Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant also invokes Article 13 (Art. 13) of the
Convention, which provides that
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Commission recalls however that Article 13 (Art. 13) does not
require a remedy under domestic law in respect of any alleged violation
of the Convention. It only applies if the individual can be said to
have an "arguable claim" of a violation of the Convention. (Eur. Court
HR, Boyle and Rice v. the United Kingdom judgment of 27 April 1988,
Series A no. 131, p. 23, para. 52). The Commission finds that in the
light of its findings above, the applicant cannot be said to have an
"arguable claim" of a violation of his Convention rights.
It follows that this complaint must be dismissed as 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.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy