MIAH AND MIAH v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 31762/96

                      by Khaleda Miah and Nanu Miah

                      against the United Kingdom

     The European Commission of Human Rights (Second Chamber) sitting

in private on 21 May 1997, the following members being present:

           Mrs.  G.H. THUNE, President

           MM.   J.-C. GEUS

                 G. JÖRUNDSSON

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

                 A. ARABADJIEV

           Ms.   M.-T. SCHOEPFER, 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 7 March 1996 by

Khaleda Miah and Nanu Miah against the United Kingdom and registered

on 6 June 1996 under file No. 31762/96;

     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 first applicant is a Bangladeshi national who was born in

1975. The second applicant, who was born in Bangladesh in 1968 but has

been lawfully settled in the United Kingdom since 1976 and is a British

citizen by naturalisation, is the husband of the first applicant. Both

applicants are currently resident in Croydon. Both are represented

before the Commission by Messrs Coningsbys, solicitors practising in

Croydon.

     The facts, as submitted by applicants, may be summarised as

follows.

     On 17 July 1990 the first applicant and her mother were granted

leave to enter the United Kingdom as visitors for a period limited to

6 months. The first applicant had, prior to entering the United

Kingdom, been living in Bangladesh with her mother where the latter,

who was born on 15 June 1937, owned 2 shops and some arable land. With

the exception of her mother and two maternal uncles, who lived in a

neighbouring village, the first applicant had no close relatives living

in Bangladesh when she left. Both her sisters settled in the United

Kingdom shortly after the death of their father on 13 December 1981.

Her brother, who is now settled in the United Kingdom, was working

abroad.

     On 24 September 1990 the first applicant and her mother,

sponsored by the applicant's sister R.J., applied for indefinite leave

to remain in the United Kingdom. On 8 May 1991 the Secretary of State

refused their application stating :

     "... in view of the fact that your mother told the Entry

     Clearance Officer that she was financially independent and

     that she maintained close contact with her brothers, the

     Secretary of State is not satisfied that you are ...

     financially, emotionally or physically dependent upon your

     sister here, and that you are without close relatives to

     turn to in your own country."

     The first applicant and her mother appealed against the decision

of the Secretary of State. The appeal was dismissed by the Adjudicator

on 11 June 1992. Leave to appeal to the Immigration Appeal Tribunal was

refused by the Tribunal on 14 July 1992.

     On 6 November 1992 the Secretary of State served the applicant

and her mother with a Notice of Intention to Deport pursuant to

section 3(5)(a) of the Immigration Act 1991. The first applicant and

her mother appealed against the decision of the Secretary of State to

deport them. On appeal the jurisdiction of the Adjudicator was limited

under s. 5 of the Immigration Act 1991 to determining whether the

reasons given by the Secretary of State for his decision were

sufficient in law to allow the Secretary of State to deport the

applicant. On 23 April 1993 the Adjudicator answered this issue in the

affirmative. At the appeal the first applicant and her mother also

sought to persuade the Adjudicator to recommend that the Secretary of

State reconsider his decision on the grounds that, contrary to the

position as it appeared on the face of her mother's answers to the

Entry Clearance Officer when applying for leave to enter the United

Kingdom, the true position was that the first applicant's mother was

financially and emotionally dependent on her two daughters then living

in the United Kingdom. The Adjudicator, expressing doubts as to the

credibility of the first applicant's mother, declined to make any

recommendation to the Secretary of State.

     On 20 June 1994 the Secretary of State signed a deportation order

against the first applicant. The order was not served on the first

applicant until some 12 months later on 26 June 1995. In the meantime

the first applicant had, on 19 November 1995, married the second

applicant, whom she had met shortly after her arrival in the United

Kingdom. On 30 November 1995 a child was born to the couple.

     In light of these changed circumstances the first applicant

applied to remain in the United Kingdom as the spouse of a British

citizen. By letter dated 26 October 1995 the Secretary of State

notified the first applicant that notwithstanding her changed

circumstances he was not prepared to allow her to remain in the United

Kingdom, but that he would, in view of the impending birth of her

child, agree to defer making arrangements for her removal until

31 March 1996. In giving his reasons the Secretary of State stated

that:

     "... considered case

     carefully in the light of the known circumstances ...      Secretary of State> is not persuaded that      applicant> should be allowed to remain on the basis of her

     marriage nor that there are sufficient compelling

     compassionate circumstances in allowing her to remain

     exceptionally.

     In reaching this conclusion the Secretary of State has

     taken into account the fact that has

     remained in the United Kingdom without leave since

     5 June 1991 and was served with notice of intention to

     deport her on 5 November 1992. A deportation order was

     subsequently signed against her on 20 June 1994 and served

     on 26 June 1995. Furthermore, although her husband is a

     British citizen, the relationship has not subsisted for

     over 2 years and clearly took place after the commencement

     of enforcement action. Moreover, as both      second applicants> entered into the marriage in the full

     knowledge that was the subject of

     deportation proceedings, they can have no expectation that

     the marriage would provide with a

     claim to remain in the United Kingdom. It is consequently

     not considered unreasonable despite      applicant's> time in this country, to expect him to

     accompany his wife to Bangladesh. The

     application is therefore refused."

     By letter dated 27 November 1995 the first applicant through her

solicitor made representations to the Secretary of State that the

deportation of the applicant would amount to a breach of Article 8 of

the Convention. The Secretary of State responded by letter dated

7 December 1995 that having reviewed the first applicant's

representations he was not persuaded to allow the first applicant to

remain. By letter dated 5 January 1996 the first applicant through her

solicitor made further representations to the Secretary of State

setting out the implications for herself and her family in the event

of her deportation, in particular that both the first and second

applicants had substantial family ties in the United Kingdom; that the

second applicant, who had lived in the United Kingdom since aged eight,

had no relatives or friends in Bangladesh and would experience

tremendous difficulty in finding work and adjusting to life in

Bangladesh; and that their child would not receive the same level of

education that she would have received in the United Kingdom. The

Secretary of State responded by letter dated 6 February 1996 stating

that "he was not persuaded that any new factors of a sufficiently

compelling or compassionate nature had been raised to justify deferring

enforcement action beyond 31 March 1996."

     Since the application to remain within the United Kingdom as the

spouse of a British citizen was made whilst the first applicant had no

extant leave to remain in the United Kingdom she had no right of appeal

against the decision of the Secretary of State under the Immigration

Act 1991. On 2 March 1996 the first applicant obtained counsel's

opinion that the prospects of her succeeding in obtaining leave to

apply for judicial review of the Secretary of State's decision were so

low as not to justify the granting of legal aid.

COMPLAINTS

     The applicants invoke Article 8 of the Convention. The applicants

complain that the decision to remove the first applicant from the

United Kingdom amounts to a lack of respect for their private and

family life in breach of Article 8 para. 1 of the Convention. The

applicants complain that it is unreasonable to expect them to move and

settle in Bangladesh. Specifically the applicants point to the fact

that the second applicant, who is a British citizen by naturalisation

having entered the United Kingdom in 1976 at the age of eight, has

substantial family, social and cultural ties with the United Kingdom.

His family is resident and settled in the United Kingdom. He does not

have any close relatives or family living in Bangladesh, nor does he

have any experience of adult life there. He has established his own

restaurant business which provides sufficient income to support

himself, the first applicant and their child. In Bangladesh he would

experience difficulty in obtaining employment. The second applicant

also has substantial family ties with the United Kingdom in that his

two sisters and brother are resident there. As regards their daughter,

the applicants mention the fact that she is unlikely to receive the

same level of education as she would have done in the United Kingdom.

THE LAW

     The applicants' principal submission is that it would be

unreasonable to expect the second applicant to settle in Bangladesh in

that he has lived in the United Kingdom since aged eight, his close

family lives within the United Kingdom, he has no close family or

friends in Bangladesh, he has no adult experience of life in Bangladesh

and would experience difficulty in adapting to life there, and in

finding work. The applicants also point to the substantial family ties

which the first applicant has within the United Kingdom and state that

their child is likely to receive a poor standard of education in

Bangladesh. The applicants invoke Article 8 (Art. 8) of the Convention

which, insofar as material, provides :

     "1.   Everyone has the right to respect for his private and

     family life ...

     2.    There shall be no interference by a public authority

     with the exercise of this right except such as 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 recalls that a State has the right to control the

entry and residence of non-nationals in its territory. In this regard

the Commission recalls the close connection between immigration control

and questions pertaining to public order and the wide margin of

appreciation which States enjoy in this regard (see Eur. Court HR,

Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of

28 May 1985, Series A no. 94, pp. 33-34, para. 67; and Beldjoudi v.

France, judgement of 26 March 1992, Series A no. 234, p. 27, para. 74).

     The Commission also recalls that whilst a right to enter or

remain in a particular country is not as such guaranteed by Article 8

(Art. 8) of the Convention (see inter alia No. 9213/80, Dec. 5.5.81,

D.R. 24, p. 239; and No. 25439/94, Dec. 5.4.95, D.R. 81-B, p. 142), the

exclusion or removal of a person from a country where his close

relatives reside or have the right to reside may raise issues under

Article 8 (Art. 8) (see inter alia No. 9088/80, Dec. 6.3.82, D.R. 28,

p. 160; No. 9285/81, Dec. 6.7.82, D.R. 29, p. 205; No. 23938/94, Dec.

23.10.95, unpublished; No. 24381/94, Dec. 31.8.94, unpublished; and No.

25073/94, Dec. 28.2.96, unpublished).

     In respect of interference with private life, the Commission

considers that this may encompass inter alia the social ties between

a deportee or his spouse and the community in which they live in

circumstances where those ties may be severed irrevocably; or,

exceptionally, the professional life of a deportee or his spouse where

this would be incapable of fulfilment other than in the host state. In

the present case, however, the Commission considers that the

applicants' complaints essentially fall within the broad compass of the

right to respect for family life. Furthermore, to the extent that the

present case raises any question with regard to the right to respect

for private life, the Commission considers that the determination of

this issue will, in the circumstances of the present case, involve

consideration of the same issues which arise in the context of the

right to respect for family life. Accordingly, the Commission does not

propose to consider as a separate issue whether there has been any

violation of the applicants' right to respect for private life.

     The Commission recalls that 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 (see Eur. Court HR,

Abdulaziz, Cabales and Balkandali, loc. cit., p. 34, para. 68). The

Commission also recalls that whilst the extent of a State's obligations

to admit to its territory relatives of settled immigrants will vary

according to the particular circumstances of the persons involved, an

essential issue in any such case is whether there are insurmountable

obstacles to the spouse having a right of residence following the

spouse affected by the decision or order, such as difficulties of

language, or where there is little or no prospect that the former will

be able to adapt or integrate within the culture or society of the

latter's country (see: Eur. Court HR, Beldjoudi v. France, loc. cit,

p. 28, paras. 77-78; No. 9088/80, loc. cit.; No. 9285/81, loc. cit.;

No. 16152/90, Dec. 13.10.92, unpublished; and No. 24381/94, loc. cit.).

     An important though not decisive consideration will also be

whether the marriage, albeit manifestly not one of convenience, was

contracted at a time when the parties were aware that the immigration

status of one of them was such that the persistence of the marriage

within the host state would from the outset be precarious. The

Commission considers that where this is a relevant consideration it is

likely to be only in the more exceptional circumstances that the

removal of the non-national spouse will constitute a violation of

Article 8 (Art. 8) (cf Eur. Court HR, Abdulaziz, Cabales and

Balkandali, loc. cit., p. 34, para. 68; No. 9285/81, loc. cit.; No.

24381/94, loc. cit.; No. 25073/94, loc. cit.).

     In respect of the first applicant, the Commission recalls that

she has substantial family ties with the United Kingdom in that her two

sisters and brother are resident there. The Commission does not,

however, find there to be any insurmountable obstacles to the first

applicant returning to Bangladesh. The Commission also recalls that at

the time of her marriage to the second applicant she had been served

with notice of intention to deport. At no stage prior to the

applicants' marriage could the first applicant be said to have expected

that she would be permitted to reside permanently within the United

Kingdom.

     In respect of the second applicant, the Commission recalls that

his immediate family is settled in the United Kingdom and that he has

no close relatives living in Bangladesh. The Commission accepts that

in following the first applicant to Bangladesh the second applicant,

who has spent the greater part of his life in the United Kingdom, is

likely to experience significant difficulties in adjusting to life in

Bangladesh. The Commission also accepts that the applicant may

initially encounter difficulties in obtaining work there. The

Commission does not underestimate the magnitude of these difficulties,

and recognises that the second applicant will have to cope with them

in the absence of support from his own immediate family.

     However, the Commission does not find any evidence that the

second applicant would experience any significant difficulties of

language, nor that it would not be possible for him to integrate

culturally or socially within Bangladesh. Accordingly, the Commission

does not consider there to be insurmountable obstacles to the second

applicant returning to Bangladesh. The Commission also recalls that his

marriage to the first applicant was contracted at a time when her

immigration status was such that the continuance of their marriage in

the United Kingdom was at the least precarious.

     The Commission notes the implications of the decision to deport

the first applicant for the applicant's child who is, iure sanguinis,

a British citizen. Whilst the child is not joined as an applicant, the

Commission considers that the position of the child may be considered

within the ambit of the applicants' right to respect for family life.

The Commission recalls in this context that the essential question is

whether the child is of an age when she can be expected to adapt to the

change in environment (see No. 23938/94, loc. cit.; and No. 24865/94,

Dec. 23.10.95, unpublished). The Commission considers that the child,

who is currently aged 18 months, is of an adaptable age. To the extent

that the child may receive a poorer standard of education the

Commission does not consider this to be a sufficiently countervailing

consideration in the absence of evidence that the child has special

needs for which there are no facilities available in Bangladesh. The

Commission does not therefore find that in this regard there are any

elements concerning respect for family life which outweigh valid

considerations relating to the proper enforcement of immigration

controls.

     Accordingly the Commission concludes that the removal of the

first applicant does not disclose a lack of respect for the applicants'

rights to respect for family or private life guaranteed by Article 8

para. 1 (Art. 8-1) of the Convention. It follows, therefore, that the

application must be rejected 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.-T. SCHOEPFER                              G.H. THUNE

        Secretary                                 President

   to the Second Chamber                     of the Second Chamber

 

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