AS TO THE ADMISSIBILITY OF
Application No. 14112/88
by Boshra KHANAM
against the United Kingdom
The European Commission of Human Rights sitting in private on
14 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 27 June 1988
by Boshra KHANAM against the United Kingdom and registered on
16 August 1988 under file No. 14112/88;
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 British citizen, born in 1968 in Bangladesh
and now resident in London, after settling in the United Kingdom in
1981 and becoming a naturalised British citizen in 1984. She is
represented before the Commission by Mr. H. Rahman of the Tower
Hamlets Law Centre.
The facts of the case, as submitted by the applicant and which
may be deduced from documents presented with the application, may be
summarised as follows:
On 3 November 1985, the applicant travelled to Bangladesh to
visit her family. A marriage was arranged between her and a citizen
of Bangladesh for 15 June 1986. The couple first met on the day of
the marriage. They remained together in Bangladesh for 9 months until
the applicant returned to the United Kingdom on 28 March 1987. She
was pregnant upon her return and gave birth to a daughter on
10 October 1987.
The applicant's husband had left school in Bangladesh in 1980
and worked abroad in Singapore and Malaysia until July 1985 as a
welder on contract. While in Malaysia he met an uncle of the
applicant and they had discussions about the uncle finding him a
wife. There was also some talk of a preference for a wife who did not
live in Bangladesh. Through the applicant's aunt the husband met the
applicant's family upon his return to Bangladesh in 1985 and marriage
negotiations were commenced. These negotiations were apparently
underway when the applicant travelled to Bangladesh, though she was
apparently not aware of them.
After the marriage the applicant's husband applied for entry
clearance at the British High Commission in Dhaka on 6 August 1986.
He and the applicant were interviewed on 26 February 1987. In the
interview the husband stated that he had married the applicant because
he and his family liked her and her family. He admitted that the fact
she was a British citizen was a "plus point" which would allow him to
go to the United Kingdom in case he had problems in Bangladesh. He
indicated he had secured a new passport upon his return to Bangladesh
from Malaysia because he anticipated finding work in Saudi Arabia, but
that job did not materialise. He also stated that, although he was a
Muslim, he would be the first member of his family who did not bring
his wife to live with him in his household, in accordance with Muslim
tradition. Leave to enter the United Kingdom was refused on 3 June
1987. The Entry Clearance Officer had "no reason to doubt each of the
parties had the intention of living permanently with the other were
(the husband) to go to the United Kingdom". However, the husband's
employment record and certain discrepancies in answers given by both
the applicant and her husband at the interview, led the Officer to
believe that the husband was mainly interested in working abroad. On
all the evidence, therefore, he was not satisfied that the husband's
primary purpose in entering the marriage was not to emigrate to the
United Kingdom, contrary to paragraph 54(a) of the Statement of
Changes in Immigration Rules HC 169. This Immigration Rule provided
that entry clearance for a foreign husband would be refused unless the
Entry Clearance Officer was satisfied "that the marriage was not
entered into primarily to obtain admission to the United Kingdom".
An Adjudicator, rejecting the husband's appeal on 14 September
1987, held as follows:
"The motives of the appellant are of course at the heart of
what I have to decide and one looks for them in his revealed
actions. After leaving school he went abroad for five years.
Coming home in mid-1985 he quickly made plans to go abroad
again, to Saudi Arabia. He then heard from his friend that
there was a prospect of a British wife so he put these plans
aside and worked with his brother in Bangladesh while
negotiations went on. When they came to fruition he appeared
before her, saw her for the first time, and they were married.
I would not say that this sequence of events, attested clearly
in evidence, admits to only one possible conclusion about his
primary purpose. I do say however that it makes it
impossible for me to conclude that he has discharged the onus
on him to demonstrate that emigration was not his primary
purpose. The appeal is dismissed."
Leave to appeal to the Immigration Appeal Tribunal was refused
on 26 November 1987.
COMPLAINTS
The applicant wants to be able to live together with her
husband and her daughter as a family in the United Kingdom. She
complains that the refusal of the immigration authorities to grant her
husband entry clearance to settle with her in the United Kingdom
constitutes an unjustified interference with her right to respect for
her family life in breach of Article 8 of the Convention.
THE LAW
The applicant complains that the refusal of British
immigration authorities to allow her husband to enter the United
Kingdom to settle with her and their child constitutes a breach of
Article 8 (Art. 8) of the Convention, the relevant part of which
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 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 present case raises an issue under Article 8 (Art. 8) of
the Convention, for, 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 this
provision (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).
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 ... even if a family
life ... has not yet been fully established" (Eur. Court H.R.,
Abdulaziz, Cabales and Balkandali judgment of 25 May 1985, Series A
No. 94, p. 32, para. 62).
The Commission notes in the present case that although the
applicant and her husband have only lived together for 9 months in
Bangladesh the British immigration authorities have never contested
that a valid marriage had been contracted between them and that they
intended to live together permanently if the husband were allowed to
settle in the United Kingdom. The couple also have a child of their
marriage. In these circumstances the Commission finds that the
applicant's marriage falls within the scope of the family life
provision of Article 8 para. 1 (Art. 8-1) of the Convention.
However, the question remains whether there has been an
interference with the applicant's right to respect for family life.
In this connection the Commission considers that distinctions must be
drawn between those seeking entry into a country to pursue their newly
established family life, as in the present case, those who had an
established family life before one of the spouses obtained settlement
in another country, and those who seek to remain in a country where
they have already established close family and other ties for a
reasonable period of time. In this context the Commission refers to
the views of the Court in the Abdulaziz, Cabales and Balkandali
judgment (loc. cit. pp. 33-34, paras. 67-68):
"The Court recalls that, although the essential object of
Article 8 (Art. 8) is to protect the individual against arbitrary
interference by the public authorities, there may in addition
be positive obligations inherent in an effective 'respect' for
family life. However, especially as far as those positive
obligations are concerned, the notion of 'respect' is not
clear-cut: having regard to the diversity of the practices
followed and the situations obtaining in the Contracting
States, the notion's requirements will vary considerably from
case to case. Accordingly, this is an area in which the
Contracting Parties enjoy a wide margin of appreciation in
determining the steps to be taken to ensure compliance with
the Convention with due regard to the needs and resources of
the community and of individuals ... In particular, in the
area now under consideration, the extent of a State's
obligation to admit to its territory relatives of settled
immigrants will vary according to the particular circumstances
of the persons involved. Moreover, the Court cannot ignore
that the present case is concerned not only with family life
but also with immigration and that, as a matter of
well-established international law and subject to its treaty
obligations, a State has the right to control the entry of
non-nationals into its territory.
The Court observes that the present proceedings do not relate
to immigrants who already had a family which they left behind
in another country until they had achieved settled status in
the United Kingdom. It was only after becoming settled in the
United Kingdom, as single persons, that the applicants
contracted marriage ... The duty imposed by Article 8
(Art. 8) cannot be considered as extending to a general obligation on
the part of a Contracting State to respect the choice by married
couples of the country of their matrimonial residence and to
accept the non-national spouses for settlement in that country.
In the present case, the applicants have not shown that there
were obstacles to establishing family life in their own or
their husbands' home countries or that there were special
reasons why that could not be expected of them."
In the present case the Commission notes that the British
immigration authorities had reasonable grounds to consider that the
husband had not shown that originally the main purpose of his marriage
to the applicant, a British citizen, was not to emigrate to the United
Kingdom. The Commission also observes that the applicant's husband has
no strong ties with the United Kingdom, never having visited it and
not having any relatives there apart from his wife and child.
Moreover there seem to be no serious obstacles preventing the
applicant returning to Bangladesh, from where she originates, to live
with her husband and child, who is of an adaptable age. There is no
evidence that this family have no possibility of living together
anywhere. In the light of these circumstances, the Commission
concludes that there has not been an interference with the applicant's
right to respect for family life ensured by Article 8 para. 1
(Art. 8-1) of the Convention and that, accordingly, the case must 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.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)