AS TO THE ADMISSIBILITY OF
Application No. 16382/90
by M.
against the United Kingdom
The European Commission of Human Rights sitting in private on
7 September 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.C. GEUS
A.V. ALMEIDA RIBEIRO
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 23 January 1990
by M. against the United Kingdom and registered on 2 April 1990 under
file No. 16382/90;
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 Uganda in 1967.
She went to the United Kingdom in 1974 and now lives in Leicester.
She is represented before the Commission by Messrs. Singh Ruparell,
Solicitors, London.
The facts of the present case, as submitted by the applicant
and which may be deduced from documents lodged with the application,
may be summarised as follows:
On 7 October 1985 the applicant visited India. Whilst there
she met V.M., an Indian citizen and her first cousin. On 14 November
1985, whilst still in India, the parties married.
On 26 November 1985 V.M. applied to the British High
Commission in Bombay for permission to settle in the United Kingdom.
On 3 February 1986 the applicant returned to the United Kingdom.
After two interviews at the British High Commission on
17 March 1987, V.M. was refused permission to settle in the United
Kingdom. On 8 March 1989 the Adjudicator refused his appeal. He
found that "the claim put forward in this appeal is pathetically
shopworn". The Adjudicator made the following factual analysis:
It was alleged that the applicant whilst in India on holiday
met V.M. completely by chance. Although she was in the company of and
staying with his sister he said that he had not previously known of
her arrival or presence. After this first meeting there were two or
three chance meetings following which the applicant requested his
company on outings. About 25 days after her arrival, love having
blossomed, she proposed marriage to him. The parties were married on
14 November 1985 and it was not until afterwards that the country of
the eventual matrimonial home was discussed. He claimed that, until
then, he had not known that the applicant expected to live in the
United Kingdom, and had assumed that they would continue to live in
India. She stayed with him in India until 3 February 1986 during which
time he tried to persuade her to remain in India. However she did not
like the climate and so returned to the United Kingdom. The applicant
was born in Uganda in 1967 and lived there until 1972 when she went to
India. She lived in India until she went to the United Kingdom in
1974. She visited India from 16 January 1977 until 3 November 1977
and again from 7 October 1985 until 3 February 1986. She said she
could not stay there because of the heat and atmosphere. However it
would not have been too hot when she was last there and the last month
might well have been distinctly cool in Perbandar. She told the
Adjudicator that she had been feverish and received various forms of
treatment. However the medical certificate submitted to the
Adjudicator referred to treatment for acute bronchitis from 8 December
1985 until 12 January 1986. The Adjudicator considered that
bronchitis is not fever and is more likely to be exacerbated by the
damp and cold climate in the United Kingdom. He could quite
understand that the applicant preferred to live in England but he
found the reasons she and her husband advanced to be spurious. He
could not believe that a girl who wished to remain in England would
marry without a word being said about the country in which the
matrimonial home would be.
The Adjudicator, in looking at the whole of the evidence,
found that the only reasonable inference was that there had been an
agreement that the applicant went to India with a view to marrying her
relative and that it had all been arranged by the two families. There
was nothing derogatory in this. Indeed, if it had been admitted,
there would have been every reason to suppose that the intention was
that the parties would live together permanently as husband and wife.
As it had been concealed, and lies told, it was reasonable to find
that the husband's primary purpose was admission to the United
Kingdom. Moreover the Adjudicator noted that the husband had obtained
his passport before the marriage. His credibility was not enhanced
when he said that he had not had any purpose in getting it. The
Adjudicator found little evidence of continuing devotion and observed
that the applicant had not returned to India although over 3 years had
passed since the marriage. The applicant said that she could not
afford to travel to India but the Adjudicator was unconvinced, given
that she was willing to support her husband in the United Kingdom.
The Adjudicator concluded that the primary purpose of the marriage was
to effect the husband's entry into the United Kingdom.
On 3 November 1989 the Immigration Appeal Tribunal agreed with
the Adjudicator's findings and upheld his decision.
The applicant was advised that there were no grounds for
judicial review of the Immigration Appeal Tribunal's decision. In any
event the applicant lacked funds to begin such proceedings.
COMPLAINTS
The applicant complains that there has been an interference
with the right to respect for her family life, contrary to Article 8
of the Convention, by the refusal to allow her husband to settle in
the United Kingdom. She complains that she is unable to settle in
India since she has a job and family in the United Kingdom.
THE LAW
The applicant complains of a violation 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 ... for the prevention of disorder ..."
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. However, the State's obligation to admit to
its territory relatives of settled immigrants will vary according to
the circumstances of the case. The Court 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 the State concerned (Eur. Court H.R., Abdulaziz,
Cabales and Balkandali judgment of 25 May 1985, Series A no. 94, p. 32
paras. 62 and 68).
The Commission has had regard to the findings of fact by the
Adjudicator, upheld by the Immigration Appeal Tribunal, and their
conclusion that, in the circumstances of the instant case, it seemed
that the primary purpose of the marriage was to effect the husband's
entry into the United Kingdom. Evidence of a different intention has
not been submitted to the Commission by the applicant.
The Commission further notes the applicant's statement that
she has a job and family in the United Kingdom and that she is unable
to leave them to settle in India. However, the applicant has not
elaborated on her family ties in the United Kingdom. She apparently
has no children there. The husband has no particular ties, whether
family or otherwise, with the United Kingdom other than his marriage
to the applicant. Consequently the Commission considers that there
are no serious obstacles preventing the applicant joining her husband
in India should she wish.
The Commission finds in the circumstances of the case that
there has been no interference with the applicant's right to respect
for her family life within the meaning of Article 8 para. 1 (Art. 8-1)
of the Convention. The case does not therefore disclose any appearance
of a violation of this provision. Accordingly 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
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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