FIRST CHAMBER
AS TO THE ADMISSIBILITY OF
Application No. 19546/92
by Nazrul MIAH, Jasmine MIAH,
Mahbub-ul-ISLAM and Mathab MIAH
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 31 March 1993, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
Mrs. M.F. BUQUICCHIO, Secretary to the First 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 14 February 1992
by Nazrul MIAH, Jasmine MIAH, Mahbub-ul-ISLAM and Mathab MIAH against
the United Kingdom and registered on 26 February 1992 under file
No. 19546/92;
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 citizen of Bangladesh, born in 1959 and
resident in Bangladesh. The second applicant, his wife, is a British
citizen of Bangladeshi origin, born in 1965 and resident in England.
The third applicant is their son, of British citizenship, born in 1987
and resident with his mother. The fourth applicant is the first
applicant's father, a British citizen of Bangladeshi origin, born in
1931 and resident in England.
They are represented before the Commission by Ms. Kate
Fitzpatrick of the North Islington Law Centre, London.
The facts of the present case, as submitted by the applicants and
which may be deduced from documents lodged with the application, may
be summarised as follows:
The first applicant applied for entry clearance in the mid 1970's
to join his father in the United Kingdom where the latter had settled.
Entry clearance was refused as he was not believed to be related to his
father as claimed. In October 1989 DNA blood analysis revealed that
they very probably were related, but entry clearance was this time
refused on 9 January 1992 because the first applicant was over 18 years
of age and was no longer considered to be his father's dependent. The
first applicant has strong ties in Bangladesh where he lives and works
with his brother and paternal uncles on the family's 12 acre farm which
provides for the whole family's needs.
The Secretary of State's policy in such cases is that entry
clearance will only be granted if, inter alia, the child, albeit an
adult, could establish significant dependency on the parent, as well
as compassionate circumstances to justify an exception to the 18 year
age limit.
In a letter from the Home Office dated 15 January 1992, addressed
to the applicants' Member of Parliament, the Parliamentary Under
Secretary of State noted that in the present case there was no evidence
to support the first applicant's claim to be dependent on his father,
the fourth applicant. The latter was 60 years old and had been in ill
health and living on public funds for some time. It was further stated
that no remittance receipts had been produced to support the claim that
money was sent by the fourth applicant. Given the income from the
family land and from a shop owned by the first applicant's uncle, any
dependency on money sent from the United Kingdom was of choice rather
than necessity.
In the meantime the first applicant visited England in 1985 and
met the second applicant. They married within a month of meeting. A
separate entry clearance application was refused because the competent
officer was not satisfied that the primary purpose of the marriage had
not been to obtain admission to the United Kingdom. Appeals were made
to an Adjudicator and Immigration Appeal Tribunal, the latter giving
its decision on 14 August 1989. An application for judicial review was
refused by the High Court on 19 November 1990.
COMPLAINTS
The applicants complain that the refusal of entry clearance to
the first applicant constituted a violation of Article 8 of the
Convention, for which they have no remedy, contrary to Article 13 of
the Convention.
THE LAW
1. The applicants complain that the refusal of entry clearance for
the first applicant was in breach of Article 8 (Art. 8) of the
Convention, paragraph 1 of which guarantees, inter alia, the right to
respect for family life. 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).
2. The Commission will first deal with the applicants' complaint
about the refusal to allow the first applicant to join his father, the
fourth applicant, in the United Kingdom.
In examining cases of the present kind the Commission's initial
task is to consider whether a sufficient link exists between the
relatives concerned as to give rise to the protection of Article 8
(Art. 8) of the Convention (cf. No. 9492/81, Dec. 14.7.82, D.R. 30 p.
232). Generally, the protection of family life under Article 8
(Art. 8) involves cohabiting dependents, such as parents and their
dependent, minor children. Whether it extends to other relationships
depends on the circumstances of the particular case. In immigration
cases, relationships between adults, a father and his 33 year old son
in the present case, would not necessarily attract the protection of
Article 8 (Art. 8) of the Convention without evidence of further
elements of dependency, involving more than the normal, emotional ties
(No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).
The Commission understands the applicants' frustration arising
from the initial refusal in the 1970s to grant entry clearance before
their relationship could be proved by DNA blood testing. If they had
been able to prove their relationship earlier the first applicant would
have been likely to have been granted entry to the United Kingdom.
However, no allegation of bad faith on the part of the immigration
authorities has been made by the applicants. In this connection the
Commission recalls its constant case-law that such verification
procedures, as existed in the United Kingdom in the 1970s and which
gave immigrants a fair opportunity to present their family life claims,
satisfied the requirements of Article 8 (Art. 8) of the Convention (No.
8378/78, Kamal v. the United Kingdom, Dec. 14.5.80, D.R. 20 p. 168).
The Commission considers therefore that its examination of the case
under Article 8 (Art. 8) of the Convention must be limited to the
applicants' present day circumstances and the nature of their
relationship now.
As regards the facts of the present case, the Commission notes
that the first applicant has strong ties with Bangladesh, where he has
lived all his life. He lives and works with his brother and paternal
uncles on the family farm which provides enough for the whole family's
needs. The claim that the first applicant is financially dependent on
the fourth applicant has not been substantiated. In these
circumstances the Commission finds that it has not been shown that
there exists a sufficiently close link between these two applicants
which could be deemed to require the protection afforded by Article 8
(Art. 8) to family life. It concludes therefore that the present case
does not disclose any appearance of a breach of the right to respect
for family life, within the meaning of Article 8 para. 1 (Art. 8-1) of
the Convention. Accordingly this part of the application must be
rejected as being manifestly ill-founded, within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
3. The second limb of the applicants' complaint under Article 8
(Art. 8) of the Convention concerns the refusal to allow the first
applicant to join his wife and child, the second and third applicants,
in the United Kingdom. However the Commission is unable to deal with
this aspect of the complaint as the applicants have failed to observe
the six months' rule laid down in Article 26 (Art. 26) of the
Convention. The final decision on this matter was taken by the High
Court refusing judicial review on 19 November 1990, but the complaint
was not lodged with the Commission before 14 February 1992. It follows
that this part of the application must be rejected pursuant to Articles
26 and 27 para. 3 (Art. 26, 27-3) of the Convention.
4. The applicants next complain that they did not have an effective
remedy for their Article 8 (Art. 8) claims. Article 13 (Art. 13) of
the Convention guarantees effective domestic remedies to everyone whose
Convention rights and freedoms have been violated.
The Commission has considered this aspect of the applicants' case
in two parts: first as regards the refusal of entry clearance for the
father/son reunification, secondly as regards the refusal of entry
clearance for the husband/wife reunification.
Concerning the first part, the Commission recalls that Article
13 (Art. 13) of the Convention does not require a remedy under domestic
law in respect of every 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 H.R., Boyle and Rice judgment
of 27 April 1988, Series A No. 131, p. 23, para. 52). In the light of
the reasons established above for rejecting the father/son complaint
under Article 8 (Art. 8) of the Convention, the Commission finds that
the applicants cannot be said to have an "arguable claim" of a
violation of their Convention rights necessitating a remedy under
Article 13 (Art. 13). It follows that this part of the complaint under
Article 13 of the Convention must be rejected as being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2).
5. Concerning the second part, the Commission notes that the
applicants did have channels of appeal at their disposal in the form
of the Adjudicator, Immigration Appeal Tribunal and the High Court by
way of judicial review. They tried these remedies, albeit without
success. However, the word "remedy" in Article 13 (Art. 13) of the
Convention does not mean a remedy bound to succeed, but simply an
accessible remedy before an authority competent to examine the merits
of a complaint. In immigration matters of the present kind, the
Commission recognises that at least the Adjudicator and Immigration
Appeal Tribunal offer this kind of effective remedy. The Commission
concludes, therefore, that the applicants had effective remedies under
English law for this aspect of their complaint, remedies which
satisfied the requirements of Article 13 (Art. 13) of the Convention.
It follows that this part of the application is also to 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 unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (J.A. FROWEIN)
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