AS TO THE ADMISSIBILITY OF
Application No. 23860/94
by Isbor KHAN
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 29 November 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 17 November 1993
by Isbor KHAN against the United Kingdom and registered on 12 April
1994 under file No. 23860/94;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
17 February 1995 and the observations in reply submitted by the
applicant on 2 June 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1936 who first entered
the United Kingdom in 1963. He lives in Oldham and is represented
before the Commission by Mr. P. Johnson, solicitor, of Oldham Law
Centre.
The particular facts of the case
On 20 March 1991 Aftera Bibi and four children applied for leave
to enter the United Kingdom. They were refused leave by the Entry
Clearance Officer on 17 July 1991 on the ground that Aftera Bibi was
the second wife of two,
"the first wife having been admitted to the United Kingdom in
1975 for settlement as the wife of the [applicant]. The first
wife had continued to live with the [applicant] and there did not
seem to have been any steps taken to terminate that marriage.
Therefore as Aftera Bibi's marriage to [the applicant] was
polygamous and as the other wife was living in the United
Kingdom, the [second wife] could not qualify for entry
clearance."
The children's applications were also rejected, as the applicant
was not solely responsible for their upbringing, and they were not
"living alone in the most exceptional circumstances ...".
An Adjudicator dismissed the applicant's appeal on
22 January 1993. Before the Adjudicator the applicant's representative
submitted that Paragraph 3 of HC 251 was discriminatory and in
violation of the Convention. He did not call any evidence. The
Adjudicator found that Paragraph 3 was mandatory and that it applied,
such that the second wife and the four children could not be granted
entry.
The Immigration Appeal Tribunal refused leave to appeal on
14 April 1993. The applicant's representative received the decision
on 19 April 1993.
Relevant domestic law
Paragraph 3 of the Immigration Rules ("the Rules") which were in
force at the relevant time (HC 251) reads as follows:
"Nothing in these rules shall be construed as allowing a woman
to be granted entry clearance, leave to enter or remain or
variation of leave as the wife of a man ("the husband") if:
(a) her marriage to the husband is polygamous; and
(b) there is another woman living who is the wife of the
husband and who
(i) is, or at any time since her marriage to the husband
has been, in the United Kingdom; or
(ii) has been granted a certificate of entitlement in
respect of the right of abode mentioned in Section 2
(1)a of the Immigration Act 1988 or an entry clearance
to enter the United Kingdom as the wife of the
husband.
For the purpose of this paragraph a marriage may be polygamous
although at its inception neither party has any spouse additional
to the other."
Paragraph 86 of the Rules provided that a passenger (but not the
wife and child under 18 of a person settled in the United Kingdom)
could be refused leave to enter the country on the ground that his
exclusion was conducive to the public good.
COMPLAINTS
The applicant considers that the rules of United Kingdom
immigration law are discriminatory in that they discriminate against
women in polygamous marriages as compared with men in polyandrous
marriages.
He sees a violation of Article 8 of the Convention in that he is
prevented from living in the United Kingdom with his second wife, and
a violation of Article 12 in that he is prevented from forming a family
in the sense of parents and children living together as a unit.
He also alleges a violation of Article 14 of the Convention in
connection with Article 8 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The applicant's representative first wrote to the Commission on
19 October 1993. That letter (postmarked 20 October 1993) was headed
"Isbor Khan / Aftera Bibi", and began "I am advising the above persons
in connection with an immigration matter concerning the Government of
the United Kingdom". He asked for the appropriate forms, and added
that he had "telephoned on numerous occasions leaving messages on your
answering machine in both English and in French. Despite this, I have
received no return telephone call". A standard form letter was sent,
and on 17 November 1993 the applicant's representative again wrote,
giving a summary of the facts of the case and the Convention
complaints. By way of reply, the applicant's representative was
informed that it was not certain that the letter of 19 October 1993
contained sufficient information to constitute introduction of the
application, and that the Council of Europe and the Commission do not
have a telephone answering machine on which messages can be left.
The applicant's representative informed the Commission on
23 December 1993 that he had telephoned the Strasbourg number
88.24.18.12 and that the answering machine described itself: "This is
the Centre for the European Citizens Human Rights".
The application was registered on 7 February 1994.
On 12 October 1994 the Commission (First Chamber) decided to
bring the application to the notice of the respondent Government and
to put questions to the parties as to the admissibility and merits of
the case.
The Government submitted their observations on 17 February 1995,
after two extensions of the time-limit, and the applicant submitted his
observations on 2 June 1995.
THE LAW
The applicant alleges violation of Articles 8, 12 and 14
(Art. 8, 12, 14) of the Convention in that he is not permitted to have
his second wife join him in the United Kingdom because of the rules
which prohibit the second wife of a polygamous marriage from entering
the United Kingdom where a first wife is already there.
The Government submit that the application is inadmissible for
non-compliance with the six months' rule, the applicant having first
written to the Commission on 19 October 1993, that is, more than six
months after the decision of 14 April 1993. In the alternative, they
submit that by failing to apply for judicial review of the refusal of
leave to appeal, the applicant has not exhausted the domestic remedies
available to him.
As to the substantive arguments, the Government recall that
bigamy is a criminal offence in the United Kingdom, and note that the
applicant has not in fact been prevented from marrying twice by United
Kingdom law or the application of the Rules. They submit that a
polyandrous woman would not be permitted to be joined by more than one
husband, as a request for such leave to enter would be refused as not
being conducive to the public good.
The applicant underlines that although the decision of the
adjudicator was given on 14 April 1993, he only received it on 19 April
1993. He considers that he has therefore met the time limit of six
months. He regards the possibility of an application for judicial
review of the refusal of leave to appeal to the Immigration Appeal
Tribunal as useless as sex discrimination provisions do not apply to
United Kingdom immigration law.
As to the substantive issues, the applicant repeats his initial
submissions.
The Commission is not required to decide whether or not the
application discloses any appearance of a violation of the Convention
as the applicant has not complied with the requirement of Article 26
(Art. 26) of the Convention that an application be introduced within
six months from the date of a final decision. The final decision
regarding the applicant's case was the decision of the Immigration
Appeal Tribunal to refuse leave to appeal, and that decision was given
on 14 April 1993 and received by the applicant's representative on
19 April 1993. In accordance with its established case-law, the
Commission finds that the date of the final decision was the date on
which the applicant's representative received the decision, namely
19 April 1993, which was the first time he became aware of its contents
(cf. No. 10889/84, Dec. 11.5.88, D.R. 56, pp. 56, 57 and the case-law
referred to there).
Pursuant to Rule 44 (4) of its Rules of Procedure, the Commission
in general takes as the date of introduction the date of the first
communication from the applicant "setting out, even summarily, the
object of the application". The next question in the present case is
therefore whether the applicant's first letter of 19 October 1993 set
out, even summarily, the object of the application. In considering
this question, the Commission must bear in mind that excessive
formalism is to be avoided (cf. Eur. Court H.R., Toth judgment of
12 December 1991, Series A no. 224, p. 22, para. 82).
The applicant's letter of 19 October 1993 gave no indication of
the subject matter beyond the phrase "an immigration matter". It gave
the names of the applicant and his second wife, but no other indication
whatever as to the nature or object of the intended application. In
particular, it referred to no domestic decisions which were being
challenged, and gave no hint as to the Convention issues which could
be raised (for an example of a letter which did comply with Rule 44
(4), see No. 10293/83, Dec. 12.12.85, D.R. 45, p. 41, at pp. 55 - 57).
The applicant's letter of 19 October 1993 did not therefore introduce
the application.
Rule 43 of the Commission's Rules of Procedure requires any
application under Articles 24 or 25 (Art. 24, 25) of the Convention to
be submitted "in writing". An application cannot therefore be made
other than in writing. The same formality need not, however,
necessarily apply to the introduction of an application, for which a
mere "communication" suffices.
The applicant's representative states that he attempted to enter
into contact with the Commission's secretariat by telephone, and that
his telephone message was never answered. The applicant must, however,
have rung the wrong number, as the number he gives is not and was not
the number of the Commission's secretariat or of the Council of Europe,
and indeed it does not now exist. Given that the principal aim of the
six months rule in Article 26 (Art. 26) of the Convention is the
promotion of legal certainty (cf. No. 10889/94, Dec. 11.5.88, referred
to above), the Commission cannot accept that allegations of telephone
calls to what transpires to be a wrong number can constitute
introduction of an application with the Commission within the meaning
of Rule 44 para. 4 of the Commission's Rules of Procedure.
Accordingly, the date of introduction of the present application
is 17 November 1993, which is more than six months after the date of
the final decision. It follows that the application must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy