AS TO THE ADMISSIBILITY OF
Application No. 19788/92
by S.S.
against the United Kingdom
The European Commission of Human Rights sitting in private
on
6 July 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
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 9 February
1992 by S.S. against the United Kingdom and registered on 31
March 1992 under file No. 19788/92;
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 applicant is a British citizen born in 1963 in Kenya and
resident in Edgware. She is represented by Hafiz and Co.,
solicitors practising in Tooting. The facts as presented by the
applicant may be summarised as follows.
The applicant settled in the United Kingdom when she was two
years old.
In 1985, the applicant met S., a citizen of India on a
visit to the United Kingdom. He returned to India on 5 March
1986 and applied to enter as the applicant's fiancé. Following
the refusal of entry, the applicant went to India in October
1987. Before she left, she sold her car, closed her building
society account and resigned from her job.
On 24 November 1987 the applicant and S. were married in
India. The applicant initially had a three month residential
permit to stay in India, to which she obtained a one month
extension. She alleges that when she applied for indefinite leave
to stay she was told to apply from the United Kingdom.
On 26 January 1988, the applicant returned to the United
Kingdom for medical treatment. As a child she had suffered from
polio and in India she had developed painful swelling in the area
of previous surgery. Two doctors who have treated her indicate
that this "plate reaction" may be caused by a hot climate.
S. applied for entry to the United Kingdom as the
applicant's husband. His application was refused by a visa
officer who was not satisfied that the primary purpose of the
marriage was not to obtain entry to the United Kingdom. The
officer referred in particular to the fact that in interview S.
had stated that he had entered into the marriage to gain entry
to the United Kingdom for economic purposes.
His appeal to the Adjudicator was dismissed on 17 May 1990.
While the Adjudicator accepted that the applicant was unwell in
India, she found that she had never seriously intended to stay
there since she only went on a three month visa. She considered
that S.'s replies in interview led to the conclusion that he had
married the applicant for settlement in the United Kingdom and
that he had known when marrying that there was no question of
them living in India.
Leave to appeal was refused by the Immigration Appeal
Tribunal on 8 November 1990.
On 9 April 1991, the High Court refused leave to apply for
judicial review of the decisions of the Adjudicator and the
Immigration Appeal Tribunal. A renewed application to the Court
of Appeal was refused on 1 October 1991.
COMPLAINTS
The applicant submits that she is prevented from living with
her husband in India due to her health. She considers that the
refusal of entry to her husband violates as a result her rights
under Articles 8, 12 and 13 of the Convention.
THE LAW
1. The applicant complains that her husband has been refused
entry to the United Kingdom contrary to Article 8 (Art. 8) of the
Convention.
Article 8 para. 1 (Art. 8-1) of the Convention
provides:
"Everyone has the right to respect for his private and
family life, his home and his correspondence."
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.
The Commission recalls that the State's obligation to admit
to its territory aliens who are relatives of persons resident
there will vary according to 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 or to accept the non-national spouse for
settlement in the State concerned (Eur. Court H.R., Abdulaziz,
Cabales and Balkandali judgment of 28 May 1985, Series A no. 94,
p. 34, para. 68).
The Commission has had regard to the findings of fact by the
Adjudicator and her conclusion that, in light of the interviews
with S. the primary purpose of the marriage was to effect the
husband's entry into the United Kingdom for economic purposes.
In these circumstances the Commission concludes that the
decision to refuse entry to the applicant's husband has not
failed to respect the applicant's right to respect for family
life, ensured by Article 8 para. 1 (Art. 8-1) of the Convention.
Accordingly this aspect of the case is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains that the refusal of entry violates
Article 12 (Art. 12) of the Convention which 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 her husband
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 the Convention.
3. The applicant also complains under Article 13 (Art. 13) of
the Convention which provides:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding
that the violation has been committed by persons
acting in an official capacity."
The case-law of the Commission establishes, however, that
Article 13 (Art. 13) does not require a remedy in domestic law
for all claims alleging a violation of the law. The grievance
must be an arguable one in terms of the Convention (Eur. Court
H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131,
p. 23, para. 52). In light of the conclusions that the
applicant's complaints under Articles 8 and 12 (Art. 8, 12) of
the Convention are manifestly ill-founded, the Commission finds
that the applicant does not have an arguable claim of a breach
of these provisions for the purposes of Article 13 (Art. 13) of
the Convention. This part of the application must therefore 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 by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NORGAARD)
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