AS TO THE ADMISSIBILITY OF
Application No. 32789/96
by Harpal Singh PHULL
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 11 September 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M. HION
Mr. R. NICOLINI
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 22 January 1996
by Harpal Singh PHULL against the United Kingdom and registered on
27 August 1996 under file No. 32789/96;
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 applicant is a British citizen born in 1965 in Tanzania and
resident in Greenford. He complains on behalf of himself and his two
sons, Dahramjit Singh born in 1994 and Ramandeep Singh born in 1995,
both British citizens. He is represented before the Commission by
Mr. G. Singh, a solicitor practising in London.
The facts, as submitted by applicant, may be summarised as
follows.
The applicant has lived in the United Kingdom since he was six
months old.
The applicant's wife, Kulwinder Kaur Phull, an Indian citizen
born in India in 1967, arrived in the United Kingdom on 14 May 1985 to
marry S. by way of an arranged marriage. A civil and religious ceremony
took place. She had been given leave to enter for six months.
The marriage broke down and by the time of Kulwinder Kaur Phull's
interview with immigration officers after the expiry of the six month
visa, she was living apart from S. On 20 December 1989, a notice of
intention to deport was served on her. Her appeal was dismissed
following a hearing and on 15 May 1991 the Secretary of State signed
the deportation order. On 6 February 1992, Kulwinder Kaur Phull was
granted leave to apply for judicial review of a decision of the
Secretary of State of 15 October 1991 to maintain the deportation. The
proceedings were discontinued in or about September 1993 on the basis
of advice from counsel.
On 6 December 1992, Kulwinder Kaur Phull obtained a divorce
from S. On 21 April 1993 she married the applicant. On 23 June 1993 she
applied for leave to remain on the basis of her marriage. After
enquiries and an interview, the application was refused on
28 October 1993.
On 15 March 1994, Dahramjit was born to the applicant and
Kulwinder Kaur Phull. On 25 August 1994, the applicant applied for the
deportation order to be revoked on the basis of his marriage and the
birth of a child. On 7 September 1994, the Secretary of State refused
the application. On 8 September, the applicant applied for judicial
review of the decision. The application was rejected on 2 November 1994
by the High Court. Leave to appeal to the Court of Appeal was granted
on 15 June 1995, principally on points of European Union law, but the
appeal was finally rejected on 17 August 1995. The House of Lords
refused leave to appeal on 22 November 1995.
On 11 December 1996, a third child was born to
Kulwinder Kaur Phull and the applicant.
The applicant has provided a psychiatric report concerning his
wife, dated 3 June 1997, in which it is stated that she shows very
strong suicidal intentions and has stated that she will definitely kill
herself if she is deported, since life would not be worth living
without her children whom, as a good mother, she would leave behind her
in the United Kingdom where they will be better off. She is described
as suffering from a depressive illness for which she is provided with
medication and supportive counselling.
COMPLAINTS
The applicant invokes Article 8 of the Convention in respect of
the decision to deport his wife on behalf of himself and his children.
He points out that he and their children are British citizens who have
lived all their lives in the United Kingdom (save six months in his
case),that they have no links with India and that he would have little
prospect of obtaining employment in India to support the family,
whereas he is in employment in the United Kingdom. He submits that he
has no intention of going to India and that the removal of his wife
will separate the family, and deprive the children of the psychological
and emotional support of their mother. It is also alleged that the
deportation flagrantly flouts the Maastricht treaty.
The applicant, in a letter submitted on 21 May 1996, has also
invoked Article 3 in respect of the inhuman treatment disclosed by the
stress and depression which Kulwinder Kaur Phull is suffering and the
potential impact on, and irreparable damage to, the children of her
removal.
THE LAW
1. The applicant complains under Article 8 (Art. 8) of the
Convention of the threatened deportation of his wife to India.
Article 8 (Art. 8) of the Convention 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 judgment 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).
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 the present case, the Commission recalls that the applicant
and his children do not themselves have any links with India and that
the applicant has employment in the United Kingdom, which he claims
would be difficult to find in India. It notes the assertion that he and
the children will remain in the United Kingdom, which will result in
the separation of the family and threatens to exacerbate stress and
anxiety experienced by the applicant's wife Kulwinder Kaur Phull.
Nonetheless, the Commission observes that Kulwinder Kaur Phull entered
the United Kingdom on limited leave and that on expiry of that leave
the decision to deport her was taken. This position was known to both
her and the applicant at the time of their marriage and they must be
taken as being aware that they had no expectation that Kulwinder Kaur
Phull would be granted leave to remain. This was also the situation
when the children of the applicant and his wife were born.
The Commission recognises the difficulties which now face the
applicant and his family. However notwithstanding the obstacles which
the family would face if they accompanied Kulwinder Kaur Phull to India
the Commission is not persuaded that these are of such a nature or
degree as to render them insurmountable. In particular, the children
are of a young and adaptable age.
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 in the present case. Accordingly the threatened removal of
Kulwinder Kaur Phull does not disclose a lack of respect for the
applicant or his children's rights to respect for family life
guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention. It
follows, therefore, that this part of the application must be rejected
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant has also complained that this situation discloses
inhuman treatment of himself, Kulwinder Kaur Phull and their children,
invoking Article 3 (Art. 3) which provides:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The case-law of the Convention organs establishes that ill-
treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3 (Art. 3) of the Convention. Further, the
Court has held that the suffering occasioned must attain a certain
level before treatment can be classified as inhuman. The assessment of
that minimum is relative and depends on all the circumstances of the
case, such as the duration of the treatment and its physical or mental
effects (see eg. Eur. Court HR, Ireland v. the United Kingdom judgment
of 18 January 1978, Series A no. 25, p. 65, para. 162).
The applicant refers, inter alia, to the stress caused to his
wife and the threatened damage to their children if separated from
their mother. The Commission recalls however that it has found above
that the deportation is a measure justified for the enforcement of
immigration controls. Having regard to the knowledge of both the
applicant and Kulwinder Kaur Phull of the latter's precarious
immigration status, the difficult dilemma in which the family is now
situated derives largely from their decision to marry and found a
family in face of a pending deportation order.
In these circumstances, the Commission finds that the hardship
which is associated with the deportation cannot be considered as
disclosing treatment contrary to Article 3 (Art. 3) of the Convention.
It follows that these complaints 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy