AS TO THE ADMISSIBILITY OF
Application No. 14069/88
by Maheshkumar Dahyabhai PATEL
against the United Kingdom
The European Commission of Human Rights sitting in private on
14 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 24 May 1988
by Maheshkumar Dahyabhai PATEL against the United Kingdom and
registered on 29 July 1988 under file No. 14069/88
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
.PA:14069/88
THE FACTS
The applicant is a citizen of India born in 1961 and resident
in the District Bulsar State of Gujarat, India.
He is represented before the Commission by Messrs.
Markand-Chimwoon, Solicitors, London.
The facts as submitted by the applicant and which may be
deduced from documents presented with the application, may be
summarised as follows:
The applicant is married to a British citizen of Indian origin
who has been settled in the United Kingdom since 1964. The
applicant's wife resides in Wolverhampton with her daughter, the issue
of a previous arranged marriage to a Zambian citizen. That marriage
ended in separation after 10 months in Zambia and divorce was granted
in Zambia in February 1980. On 25 May 1983 she visited India with her
mother. On 30 May 1983 she met the applicant and within half an hour
they were engaged to be married. The marriage, which took place
according to traditional Hindu customs on 2 June 1983, had been
arranged by the parents of both spouses. The applicant agreed to
accept the daughter as his stepchild.
On 8 June 1983 the applicant applied for entry clearance to
settle with his wife in the United Kingdom. On 25 June 1983 the wife
returned to the United Kingdom with her child to continue her
employment and the child's schooling. The applicant and his wife had
lived together during those three weeks.
On 8 December 1983 the applicant was interviewed at the
British High Commission in Bombay by an Entry Clearance Officer.
According to this Officer's statement the interview was conducted in
the applicant's native language, Gujarati, with the help of a fluent
interpreter (bilingual Gujarati/English) and part of the questions and
answers were as follows:
"I asked the (applicant) when he and his wife were engaged
and he told me that they were engaged on 30 May 1983 ...
He told me that his wife had come to India to look for
a husband ...
I asked the (applicant) whether he had asked his wife to live
with him permanently in India and he told me that he had not.
I asked him why he had not so asked her bearing in mind that
it was traditional for wives to join husbands after marriage.
The (applicant) told me that he had not asked his wife to live
with him in India because he wanted to go and live in the
United Kingdom. He added that he did not want his wife to
live in India. I asked the (applicant) why he had married a
divorced woman who had a 7 year old child from her previous
marriage and he told me that it was an arranged marriage. I
asked him why a marriage was arranged to such a woman and he
told me that it was arranged so that he could go to the United
Kingdom for settlement. I asked the (applicant) whether his
wife was prepared to live permanently with him in India and he
told me that he did not know. I asked the (applicant) why his
wife had gone back to the United Kingdom so soon after their
marriage and he told me she went back to her job in a shop. I
asked the (applicant) why they did not wish to live
permanently in India after their marriage and (he) told me
that it was because he wanted to live in the United Kingdom.
I asked the applicant whether the main reason for marrying his
wife was to enable him to go to the United Kingdom for
settlement and (he) told me that this was correct."
In early 1984 the wife was interviewed in the United Kingdom
and she denied her trip to India was for the purpose of finding a
husband. She was sure the applicant had not married her purely to
gain entry into the United Kingdom and, although she did not want to
live in India, she stated that she would join her husband if all
appeals failed.
On 8 May 1984 the applicant was reinterviewed by an Entry
Clearance Officer in Bombay and, according to that Officer's
statement, the applicant reiterated that he had married solely to gain
entry to the United Kingdom and that he would otherwise not have
married his wife due to her divorced status. He did not want to live
in India and had earlier sought work in the Persian Gulf. This
interview was also conducted with the aid of an interpreter, in the
Gujarati language.
An entry certificate was refused because the Entry Clearance
Officer found that, although a valid marriage had been contracted
between the two parties and he had no reason to believe that they did
not intend to live together permanently if the applicant were admitted
to the United Kingdom, in his opinion the primary purpose of the
marriage was to gain entry into the United Kingdom, in contravention
of paragraph 54(a) of the Statement of Changes in Immigration Rules HC
169. Paragraph 54 of these Rules provides as follows:
An entry clearance for the foreign husband of a woman
settled in the United Kingdom will be refused unless
the Entry Clearance Officer is satisfied:
"(a) that the marriage was not entered into primarily
to obtain admission to the United Kingdom and
(b) that each of the parties has the intention of
living permanently with the other as his or her
spouse; and
(c) that the parties to the marriage have met."
The applicant appealed to an Adjudicator who dismissed his
appeal on 10 April 1985. The Immigration Appeal Tribunal refused
leave to appeal on 8 June 1985.
The applicant reapplied for entry clearance on 17 August
1985. He was interviewed on 21 February 1986 which interview was
described by the Entry Clearance Officer as follows:
"The (applicant) ... has applied again for an entry
certificate in order to join his wife, the sponsor ...
There has been no material change in the circumstances
of either (of them) since the (applicant's) previous
application ... The (applicant) decided to marry the
sponsor half an hour after meeting her. He told me
that he had agreed to marry the sponsor because of her
looks and her nice nature, and that he had thought his
life would be good with her. He had not considered
any other factors in his decision to marry her and had
not thought about the fact that the sponsor came from
the United Kingdom. The (applicant) told me that he
could not remember what he had told the Entry Clearance
Officer at the time of his previous application, but when I
reminded him of the answers he had given to the Entry
Clearance Officer during his interview at that time he denied
that he had told the Entry Clearance Officer that his marriage
had been arranged so he could go to the United Kingdom for
settlement. He denied that, as he had previously told the
Entry Clearance Officer, the main reason for marrying the
sponsor was so that he could go to the United Kingdom for
settlement, and told me that he did not remember what he had
said. He told me that the statements he had made at that time
were not true, but could not tell me why he had therefore made
them to the Entry Clearance Officer. The (applicant) denied
that the prospect of a better future in the United Kingdom was
a factor which had influenced his decision to marry the
sponsor, and he told me that he would have married the sponsor
had she been resident in India. He made no reply however when
I put it to him that during his previous interview he had told
the Entry Clearance Officer that he would not have married the
sponsor had she been resident in India. The (applicant) told
me that he had not asked the sponsor whether she would be
prepared to live with him in India because the climate in
India did not suit her, but he told me that he did not
remember having told the Entry Clearance Officer previously
that the reason he had not asked the sponsor to live in India
with him was because he did not want to live in India. The
(applicant) could make no reply when I asked him why he could
not now remember any details of his interview in connection
with his previous application, despite the fact that in his
letters he had criticised the accuracy of the interview and
the competence of the interpreter. The (applicant) last saw
his wife, the sponsor, in June 1983 and she had not returned
to India because her daughter was at school. The (applicant)
told me that the sponsor would come to India if his
application was refused a second time. The (applicant)
confirmed that he had understood all the questions but made
no reply when I asked him why his answers in his present
interview differed so fundamentally from his answers during
his previous interview."
The Entry Clearance Officer refused an entry certificate
because he could not overlook the applicant's statements at the
earlier interview in December 1983. He did not accept that the
applicant had forgotten the previous interview or that the prejudicial
remarks had not been made, given the accuracy of the applicant's
memory in other respects and the absence of any dispute about other
important aspects of that interview. He felt that the applicant was
now attempting to redress these remarks with the knowledge of
hindsight in order to satisfy the requirements of the Immigration
Rules. The Officer still found that the applicant's marriage had been
contracted for the primary purpose of entering the United Kingdom.
The applicant's wife, supported by representations from her
Member of Parliament, twice visited India in an attempt to convince
the Entry Clearance Officer to change his mind, but to no avail.
An appeal to an Adjudicator, based on the revised Rule
(paragraph 46(a) of the Statement of Changes in Immigration Rules HC
503 extending the primary purpose rule to both foreign husbands and
wives) was rejected on 28 April 1987. The Adjudicator found that, as
far as the applicant was concerned, his primary purpose in marrying
was to obtain admission to the United Kingdom, with the marriage
relationship being subsidiary to that. The Adjudicator also refused
to order discovery of the Entry Clearance Officer's interview notes of
December 1983 and early 1984, as they were not deemed necessary to
decide the present case and had not been requested at the material
time in the earlier proceedings.
Leave to appeal against the Adjudicator's decisions to the
Immigration Appeal Tribunal was refused on 19 June 1987. An
application for judicial review of the Tribunal's decision was
rejected by the High Court on 21 October 1987 and the Court of Appeal
on 29 April 1988.
COMPLAINTS
The applicant complains that the refusal of entry clearance to
the United Kingdom by British immigration authorities constitutes a
denial of his right to respect for family life ensured by Article 8 of
the Convention and of his right to marry and found a family ensured by
Article 12. The applicant also complains that the decision of the
Immigration Appeal Tribunal on 19 June 1987 was in breach of the rules
of natural justice and Article 6 para. 1 of the Convention because it
failed to order discovery of the notes of the Entry Clearance Officer
made at the applicant's interview on 8 December 1983, given that the
applicant denies having made any prejudicial statements about his
marriage intentions at that interview. He submits that the purpose of
his application to the Commission is to be allowed to join his wife in
the United Kingdom and to have condemned the primary purpose rule
which is allegedly discriminatory against Asians particularly in
respect of arranged marriages.
THE LAW
1. The applicant complains that the refusal of British
immigration authorities to allow him to enter the United Kingdom to
settle with his wife constitutes a breach of Article 8 (Art. 8) of the
Convention, the relevant part of which reads 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 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 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" 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
25 May 1985, Series A No. 94, p. 32 para. 62). The Commission notes in the
present case that although the applicant and his wife have only lived together
for brief intervals in India 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 applicant 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.
In this connection the Commission considers that distinctions must be
drawn between those seeking entry into a country to pursue their newly
established family life, as in the present case, those who had an
established family life before one of the spouses obtained settlement
in another country, and those who seek to remain in a country where
they have already established close family and other ties for a
reasonable period of time. In this context the Commission refers to
the views of the Court in the Abdulaziz, Cabales and Balkandali
judgment (loc. cit. pp. 33-34 paras. 67-68):
"The Court recalls that, although the essential object of
Article 8 is to protect the individual against arbitrary
interference by the public authorities, there may in addition
be positive obligations inherent in an effective 'respect' for
family life. However, especially as far as those positive
obligations are concerned, the notion of 'respect' is not
clear-cut: having regard to the diversity of the practices
followed and the situations obtaining in the Contracting
States, the notion's requirements will vary considerably from
case to case. Accordingly, this is an area in which the
Contracting Parties enjoy a wide margin of appreciation in
determining the steps to be taken to ensure compliance with
the Convention with due regard to the needs and resources of
the community and of individuals ... In particular, in the
area now under consideration, the extent of a State's
obligation to admit to its territory relatives of settled
immigrants will vary according to the particular circumstances
of the persons involved. Moreover, the Court cannot ignore
that the present case is concerned not only with family life
but also with immigration and that, as a matter of
well-established international law and subject to its treaty
obligations, a State has the right to control the entry of
non-nationals into its territory.
The Court observes that the present proceedings do not relate
to immigrants who already had a family which they left behind
in another country until they had achieved settled status in
the United Kingdom. It was only after becoming settled in the
United Kingdom, as single persons, that the applicants
contracted marriage ... The duty imposed by Article 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.
In the present case, the applicants have not shown that there
were obstacles to establishing family life in their own or
their husbands' home countries or that there were special
reasons why that could not be expected of them."
In the present case the Commission notes that despite the
applicant's assertions to the contrary, the immigration authorities
had reasonable grounds to believe that originally the main purpose of
his marriage to a British citizen was to emigrate to the United
Kingdom. The Commission also observes that the applicant has no
strong ties with the United Kingdom, never having visited it and not
having any other relatives there apart from his wife. Moreover there
seem to be no serious obstacles preventing the applicant's wife
returning to India, from where she originates, to live with the
applicant. 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 of the
Convention and that, accordingly, this aspect of the case must be
rejected as being manifestly ill-founded, in accordance with Article
27 para. 2 (Art. 27-2) of the Convention.
2. The applicant has also invoked Article 12 (Art. 12) of the
Convention in respect of the refusal of British immigration authorities
to grant him entry clearance.
Article 12 (Art. 12) of the Convention provides as follows:
"Men and women of marriageable age have the right to marry
and to found a family, according to the national law governing
the exercise of this right."
The Commission notes that the applicant married a British
citizen unhindered. Furthermore, for the same reasons given above in
respect of Article 8 (Art. 8) of the Convention, the Commission finds that
Article 12 (Art. 12) of the Convention also does not impose a general
obligation upon Contracting States to respect a married couple's choice of the
place where they wish to found a family or to accept non-national spouses for
settlement to facilitate that choice. It follows that this aspect of the case
is also manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of theConvention.
3. The applicant has next complained of a violation of Article 6
para. 1 (Art. 6-1) of the Convention in that his request for production
of the Entry Clearance Officer's notes of the interview on 8 December 1983, the
contents of which were disputed by the applicant, was refused by the
Immigration Appeal Tribunal.
The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention
provides as follows:
"In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing ..."
The Commission refers to its constant case-law that Article 6
para. 1 (Art. 6-1) of the Convention does not apply to immigration matters, in
particular the analogous question of deportation, no issue of civil
rights and obligations arising:
"A decision as to whether an alien should be allowed to
stay in a country is a discretionary act by a public
authority. Consequently, the decisions to expel ...
were of an administrative order and they were made in
the exercise of the discretionary powers of the immigration
authorities. They did not, therefore, involve as such the
determination of civil rights within the meaning of Article
6 para. 1 (Art. 6-1) of the Convention ..." (No. 8244/78, Singh,
Uppal et al v. the United Kingdom, Dec. 2.5.79, D.R. 17 p. 149;
No. 9285/81, Dec. 6.7.82, D.R. 29 p. 211).
The Commission considers that, similarly, the proceedings by
which the United Kingdom authorities refused the applicant permission
to enter the United Kingdom were of an administrative, discretionary
nature and did not involve the determination of the applicant's civil
rights and obligations. It follows that the provisions of Article 6
para. 1 (Art. 6-1) of the Convention are not applicable to such proceedings
and this aspect of the case must be rejected as being incompatible ratione
materiae with the provisions of the Convention, pursuant to Article 27 para. 2
(Art. 27-2) of the Convention.
4. Finally, the applicant alleges a violation of Article 14 of
the Convention, read in conjunction with Article 8 (Art. 14+8), insofar
as he complains that the "primary purpose" restriction contained in the
Statement of Changes in Immigration Rules is racially discriminatory against
Asians, particularly in respect of arranged marriages.
Article 14 (Art. 14) of the Convention prohibits discrimination in the
securement of Convention rights and freedoms on any ground such as race. The
Commission notes, however, that paragraph 54 of HC 169, replaced by paragraph
46 of HC 503, Statement of Changes in Immigration Rules, prevented entry
clearance being given to foreign spouses on three grounds:
a) if the primary purpose of the marriage was to emigrate
to the United Kingdom,
b) if the parties to the marriage did not have the intention
of living permanently together, and
c) if the parties had never met.
Only the first restriction was applied in the applicant's case
and the Commission finds no evidence that such a restriction was aimed
to discriminate against Asian arranged marriages. The Rule makes no
reference to particular racial groups and applies to all persons
equally who fall within its scope (cf. aforementioned Abdulaziz,
Cabales and Balkandali judgment paras. 84-86). Furthermore the
Commission recalls that the British immigration authorities recognised
the applicant's marriage as valid and at no time based their decision
on the fact that the marriage was arranged. The Commission concludes,
therefore, that this aspect of the case must also 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)