AS TO THE ADMISSIBILITY OF
Application No. 16324/90
by S.
against the United Kingdom
The European Commission of Human Rights sitting in private on
6 September 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
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
A.V. ALMEIDA RIBEIRO
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 13 October 1989
by S. against the United Kingdom and registered on 19 March 1990
under file No. 16324/90;
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 1959, living in
Leicester. She is represented before the Commission by Singh and
Ruparell, Solicitors, London.
The facts of the present case, as submitted by the applicant
and which may be deduced from documents lodged with the application,
may be summarised as follows.
The applicant was originally married to H.V.. On 5 December
1984 the couple divorced.
In 1986 the applicant went to India on holiday with her mother
and some friends. In India the applicant met V.S., a citizen of
India. On 30 March 1986, whilst still in India, the applicant married
him. She then returned to the United Kingdom for medical reasons.
The husband applied for an entry visa in order to settle in the United
Kingdom to join his wife. On 3 July 1987 his application was
refused. His appeal to the Adjudicator was heard on 27 January 1989.
The Adjudicator held, inter alia, as follows:
"I am faced with a claim that is inherently improbable.
I am asked to accept that (the applicant) went to India
on the spur of the moment with nothing in mind but a
holiday. Whilst there the appellant (the husband) came
to visit her as he was acquainted with her friend's brother.
After the shortest of acquaintances she fell in love and
proposed to him. He accepted and so in a short time they
were married. It had been her intention to remain in India
after marriage but she became ill and had to return (to
England). The marriage had not been arranged and arose
entirely because love had blossomed virtually overnight.
(The applicant) is a divorcee some three years older than
the appellant. It was strenuously denied that the marriage
had been contemplated before (the applicant) went to India
and that she had gone there to meet the appellant. For a
marriage to arise in this way in India, and indeed in many
other places, would be rare.
I heard evidence from (the applicant) and found her to
have little credibility ... She was asked how long before
she went to India had it been planned that she would go
there. She replied 'It was not planned, all of a sudden
my friends told me they were going to India and I could go
with them if I wanted as I had not been there before.' ...
From the fact of her having obtained a visa it is clear
that the visit must have been in contemplation for at least
5 or 6 weeks before leaving. This was put to her and she
said 'I just guessed a week or a week and a half. I thought
it would take a week and a half.' It was put to her that
she applied for her visa about six weeks before she went.
She replied with a patent lack of credibility 'I went there
all of a sudden ...' Nothing was said about how her mother
came to be included in these arrangements which were made
'all of a sudden'. I totally reject this evidence and must
question why it has been fabricated. The only possible
explanation is that she was trying to conceal that she was
going to India to meet the appellant with the possibility
of a marriage to him in mind.
It was put forward that the sponsor had to leave India
because of extreme ill-health and for this reason finds it
impossible to return there to live. A report from a doctor
in India certified that the sponsor 'was suffering from acute
gastroenuterits (sic) and hyperacidity. She had such type
of attack off and on during her stay due to the hot temperate
climate of this place. She was under my care and treatment
from 3.4.86 to 15.5.86 (both days inclusive).' This report
clearly carries no weight. The maladies one assumes the
doctor intended cannot be laid at the door of a 'hot
temperate climate' or even entirely caused by an intemperate
one. I note that the report was dated 16.5.86 and cannot
but wonder why it was obtained before a visa to come here
was applied for ...
In cross-examination she was completely evasive and refused
to be specific about her alleged illness in India ... With
this manifestly unsatisfactory evidence I cannot possibly
accept that illness impelled (the applicant) to return
home. Clearly she went intending to stay for three months
and came back here in approximately that period. I can
well appreciate her preference for living here. But as
she has advanced spurious reasons her credibility is
again seen to be of the lowest ...
The account of the courtship (which on the evidence does
not deserve this appellation) leading to the marriage is
riddled with inconsistency and improbability. As the visa
officer remarked were there a romance, as alleged, then
certain salient features should have been recalled with
clarity. In particular I find the difference between the
(couple) as to whether he assented to her proposal
immediately or a few days later to be particularly
significant. Her evidence that she proposed on the third
meeting, in none of which was there any conversation beyond
an exchange of conventional greetings, I found utterly
unacceptable. In addition there were the discrepancies as
to whether the appellant's father had been consulted, the
timing of the meetings, (the applicant's) outings whilst in
India and the effect of the uncle's accident ... I also
note that she made no effort whatsoever to extend her
permitted stay in India before the alleged illness had
become so severe that she had to come back here. In
addition I cannot ignore the fact that the appellant has
married a divorcee older than himself and the proposed
breach of custom by the sponsor not joining and becoming
part of his family ... I find that the appellant has failed
completely to discharge the onus of showing that the
marriage was not entered into primarily to obtain (his)
admission to the United Kingdom."
On 21 August 1989 the Immigration Appeal Tribunal upheld the
Adjudicator's decision.
The applicant was advised that there were no grounds for
judicial review of the Immigration Appeal Tribunal's decision. In any
event the applicant lacked funds to begin such proceedings.
COMPLAINTS
The applicant complains that there has been an interference
with her right to respect for her family life contrary to Article 8 of
the Convention by the refusal to allow her husband to settle in the
United Kingdom. She complains that she is unable to settle in India
with her husband since her family live in England.
THE LAW
The applicant complains of a violation 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. Nevertheless, the Commission notes that the
applicant and her husband have not lived together for any significant
period in India despite their four year marriage.
The Commission recalls that the State's obligation to admit to
its territory relatives of settled immigrants will vary according to
the circumstances of the case. The Court held that Article 8 (Art. 8)
does not impose a general obligaton 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 25 May 1985, Series A no. 94, p. 32 paras.
62 and 68).
The Commission has had regard to the findings of fact by the
Adjudicator, upheld by the Immigration Appeal Tribunal, and their
conclusion that, in the circumstances of the instant case, it seemed
that the primary purpose of the marriage was to effect the husband's
entry into the United Kingdom. Evidence of a different intention has
not been submitted to the Commission by the applicant.
The Commission further notes the applicant's statement that
she has a family in the United Kingdom and that she is unable to leave
them to settle in India. However, the applicant has not elaborated on
her family ties in the United Kingdom. She apparently has no children
there. The husband has no particular ties, whether family or
otherwise, with the United Kingdom other than his marriage to the
applicant. Consequently the Commission considers that there are no
serious obstacles preventing the applicant joining her husband in
India should she wish.
The Commission finds in the circumstances of the case that
there has been no interference with the applicant's right to respect
for her family life within the meaning of Article 8 para. 1 (Art. 8-1)
of the Convention. The case does not therefore disclose any appearance
of a violation of this provision. Accordingly the application is
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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