AS TO THE ADMISSIBILITY OF
Application No. 14742/89
by Manjula ODEDRA
against the United Kingdom
The European Commission of Human Rights sitting in private on
4 April 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mr. L. LOUCAIDES
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 26 January 1989
by Manjula ODEDRA against the United Kingdom and registered on 7 March
1989 under file No. 14742/89;
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 1966 in Uganda,
and resident in Heston, Middlesex. She is represented before the
Commission by Messrs. Singh & Ruparell, Solicitors, London.
The facts of the case, as submitted by the applicant and which
may be deduced from documents lodged with the application, may be
summarised as follows.
Mr. Nagaji Odedra, an Indian, was refused leave to enter the
United Kingdom (reasons unspecified) on 16 September 1984, but he was
granted temporary admission whilst a Member of Parliament made
representations to the Secretary of State on his behalf. A few weeks
later, on 12 November 1984, he married the applicant. She had met her
husband at a festival 3 or 4 nights in a row and liked him. They
married three days later in a registry office. There was no religious
ceremony and her father made no inquiries about the husband. The
applicant had no intention of going to India to live with her husband.
All this the immigration authorities found suspect and contrary to
Sikh custom normally followed by the applicant's family. There is
some dispute as to how long the couple lived together before the
husband returned to India on 12 December 1984. Accordingly the
immigration authorities refused the husband's subsequent application
for entry clearance as the applicant's husband because they were not
satisfied that the marriage had not been contracted by the husband for
the primary purpose of gaining admission to the United Kingdom. This
is a ground for exclusion under the Statement of Changes in
Immigration Rules HC 169 paragraph 46(a).
The refusal of entry clearance was upheld by an adjudicator on
19 May 1987. He found the testimonies of the applicant and her father
"totally unreliable" and the circumstances of the marriage "strange".
He also found that the couple had spent little time together after
their marriage, the husband having been most of the time preceding his
departure from the United Kingdom with his friends in another town.
He concluded that it was the fact of the applicant's settlement "in
the United Kingdom that was the overriding and compelling motive for
the marriage, outweighing all other factors, the matrimonial
relationship being of subsidiary importance". The applicant refutes
the adjudicator's findings.
The adjudicator's decision was confirmed by an Immigration
Appeal Tribunal on 9 September 1987. The applicant later requested
the Secretary of State to reconsider the decision. On 17 January 1989
the applicant was informed that, in view of the findings of the
independent immigration appeal authorities, the Secretary of State was
"not prepared to reverse his earlier decision", although it would be
open to the husband to make a new application for entry clearance
which would "receive careful consideration in the light of the
circumstances that prevail at that time".
COMPLAINTS
The applicant complains of the continuing refusal of the
British immigration authorities to allow her husband to join her in
the United Kingdom. She is unable to join her husband in India
because her parents are settled in the United Kingdom and she does not
wish to leave them. She invokes 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 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 ... 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" (Eur. Court H.R.,
Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A
No. 94, p. 32, para. 62).
The Commission notes in the present case that although the
applicant and her husband only lived together for a few weeks in the
United Kingdom 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. 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.
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 immigrate to the United Kingdom. The
Commission also observes that the applicant's husband apparently has
no strong ties with the United Kingdom, not having lived there for a
reasonable period of time and not having any relatives there apart
from the applicant. Moreover there seem to be no serious obstacles
preventing the applicant following her husband to India. 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)
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