AS TO THE ADMISSIBILITY OF
Application No. 24723/94
by Nitaben PATEL
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 4 September 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, 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 24 April 1994 by
Nitaben PATEL against the United Kingdom and registered on 28 July 1994
under file No. 24723/94;
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 applicant is an Indian national born in India in 1964 and
resident in Middlesex, United Kingdom. She is represented before the
Commission by Sheridans Solicitors. The facts as submitted by the
applicant can be summarised as follows.
The applicant entered the United Kingdom on 23 July 1986. On
6 September 1986 she married "P" and on 1 October 1987 their daughter
was born. On 10 August 1988 the applicant was given indefinite leave
to remain in the United Kingdom. The marriage suffered difficulties
and on 15 January 1993 a decree absolute was granted and the marriage
was dissolved.
On 18 March 1993 the applicant married M. M is an Indian citizen
born in 1963. His previous wife had died in India on 13 January 1993.
M entered the United Kingdom on 7 February 1991 with a single visit
entry clearance, valid for a period of six months. On 28 June 1991 he
applied for leave to remain as a working holiday-maker. On
30 April 1992, his application was refused. His appeal against that
refusal was heard on 24 March 1993 and dismissed on 5 May 1993. On
15 April 1993, he applied for leave to remain as the spouse of the
applicant. On 10 March 1994 his application was refused on the basis
that the Secretary of State was not satisfied that the primary purpose
of the marriage was not to obtain settlement in the United Kingdom or
that M intended to live permanently with the applicant as his spouse.
M had no right of appeal against that decision and remained in the
United Kingdom without leave.
On 12 September 1994 the Secretary of State made a decision to
make a deportation order requiring M to leave the United Kingdom,
directing that he be removed to India and prohibiting him from re-
entering. On 14 March 1995 M's appeal against that decision was
rejected by the Adjudicator. On 29 June 1995 the Immigration Appeal
Tribunal refused M leave to appeal to the Tribunal against the decision
of the Adjudicator.
COMPLAINTS
The applicant complains that the decision of the Secretary of
State to refuse M leave to remain in the United Kingdom constitutes a
violation of her right to respect for her private and family life
contrary to Article 8 of the Convention. She states that she has now
been in the United Kingdom for more than seven years, has a daughter
by her first marriage, is employed as an assembly worker on a permanent
basis, lives in a happily settled family unit and is used to the way
and standard of life obtainable in the West.
THE LAW
The applicant alleges a violation of Article 8 (Art. 8) of the
Convention claiming that the deportation of her husband will interfere
with her right to respect for her family and private life. Article 8
para. 1 (Art. 8-1) (Art. of the Convention provides as follows.
"Everyone has the right to respect for his private and
family life, his home and his correspondence."
The present case may raise 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. 8.7.82, 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 Commission recalls that the State's obligation to
admit to its territory aliens who are relatives of persons resident in
the territory will vary according the circumstances of the case. The
Court has held that Article 8 (Art. 8) does not impose a general
obligation on States to respect the choice of residence of a married
couple of the country of their matrimonial residence or to accept non-
national spouses for settlement in that country (Eur. Court H.R.,
Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no.
94, p. 94, para. 68). Whether the removal or exclusion of a family
member from a Contracting State is incompatible with the requirements
of Article 8 (Art. 8) will depend of a number of factors: the extent
to which family life is effectively ruptured, whether there are
obstacles to establishing family life in either of the spouses' home
countries, whether there are special reasons why that could not be
expected of them, whether there are factors of immigration control or
considerations of public order (see Eur. Court H.R. Abdulaziz judgment
referred to above at para. 68, Berrehab judgment of 21 June 1988,
Series A no. 138, para. 29, Gül judgment of 19 February 1996, Reports,
para. 42 and No. 9285/81 Dec. 6.7.82, D.R. 29 p. 205).
The Commission notes the findings of the immigration authorities
that the primary purpose of M's marriage to the applicant was to obtain
settlement in the United Kingdom and that he had married the applicant
eleven months after his application for leave to remain as a working
holiday-maker had been refused and only six days before his appeal
against that decision was heard. Further, the Commission recalls that
the applicant herself had only been in the United Kingdom for eight
years at the time of the decision of the Secretary of State to issue
a deportation order in respect of M and that she had lived in India for
24 years before going to the United Kingdom. Accordingly the obstacles
to M and the applicant establishing family life in their home country
are not serious.
In these circumstances the Commission concludes that the decision
to refuse M leave to remain in the United Kingdom as the spouse of the
applicant has not failed to respect the applicant's right to respect
for her family or private life, as guaranteed by Article 8 (Art. 8) of
the Convention.
Accordingly the complaint must be dismissed as 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.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy