AS TO THE ADMISSIBILITY OF
Application No. 37003/97
by Soomattee SCHNEIDER
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 15 January 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
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 13 June 1997 by
Soomattee SCHNEIDER against the United Kingdom and registered on
23 July 1997 under file No. 37003/97;
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 citizen of Mauritius and was born in 1956.
She is currently resident in London. She is represented before the
Commission by Mr. B. Stuart, a solicitor practising in Essex. The
facts of the application, as submitted by the applicant's
representative, may be summarised as follows.
A. The particular circumstances of the case
The applicant entered the United Kingdom as a visitor on
9 February 1992 with a six month visa. In May 1992 she met Christopher
Schneider, a British citizen, through a marriage bureau and they
married on 22 July 1992. Six days after the marriage she applied for
residence, on the ground of that marriage. On 22 June 1993 the
applicant was granted permission to reside in the United Kingdom for
12 months, in view of her marriage. The applicant's husband was
diagnosed with cancer soon after their marriage. The applicant lived
with her husband throughout their marriage and visited him daily during
his frequent stays in hospital. During this period the applicant
became close to her husband's family, in particular to her mother-in-
law. On 14 February 1994 the applicant's husband died.
On 18 May 1994 the applicant applied for indefinite leave to
remain on the basis of the marriage. On 13 December 1994 that
application was refused by the Secretary of State. The Secretary of
State's reasons for refusal were set out in the explanatory note to the
decision as follows:
"The Secretary of State then gave consideration to the
application for indefinite leave to remain as the wife of Mr.
Schneider. However, Mr. Schneider had died one month prior to
the application being made and consequently the Secretary of
State was not satisfied that the marriage had not been
terminated.
The Secretary of State also considered whether to exercise his
discretion in the appellant's favour, but in view of the fact
that the appellant had spent 36 years in Mauritius and only
3 years in the United Kingdom, and furthermore had substantial
ties with Mauritius, the Secretary of state could find no
circumstances of a sufficiently exceptional or compassionate
nature to warrant exercising that discretion. The Secretary of
State also considered whether to exercise his discretion
exceptionally outside the Immigration Rules but was not prepared
to do so. The Secretary of State therefore refused the
application on 13 December 1994 under paragraph 132."
The applicant appealed against the decision of the Secretary of
State to an Adjudicator. There was an oral hearing before the
Adjudicator, Mr. Watkins, on 19 December 1995, the applicant being
represented by counsel. Both the applicant and her mother-in-law gave
evidence at this hearing.
The adjudicator held in a written determination dated 15 January
1996, that in law the appeal must fail under paragraph 132. However
he made a recommendation in the following terms:
"On the basis of what I heard and the letters from other members
of the family I recommend to the Secretary of State that in the
particular circumstances of this sad case, he should consider
granting the appellant exceptional leave to remain so that she
can tend her late husband's grave and remain part of his family."
In February 1996 the applicant was informed by letter that the
Secretary of State refused the recommendation, on the basis that there
were insufficient exceptional compassionate grounds to reverse his
previous decision. Furthermore the Secretary of State was not prepared
to exercise his discretion by granting a limited leave to remain
outside the Immigration Rules.
On 4 April 1996 the applicant's representatives wrote to the
Secretary of State, requesting a reconsideration of the applicant's
request. This request included the statements of several members of
the applicant's husband's family, all of whom strongly supported her
application, stating that she had shown great devotion to her deceased
husband and was considered part of the family. On 7 May 1996 the
Secretary of State refused to alter his decision. In his letter of
refusal to the applicant's representatives the Secretary of State made
the following comments:
"... in the light of your representations and others received on
Mrs Schneider's behalf we have again reviewed the case on a
discretionary basis outside the normal requirements of the
Immigration Rules. However, whilst I sympathise with
Mrs Schneider's situation and can understand that she has grown
close to her husband's family I am still not persuaded that these
constitute sufficiently compelling or compassionate factors to
warrant reversing the original decision to refuse Mrs Schneider's
application for settlement. In reaching this decision I have
taken account of the relatively short time that she has spent
here and, although she has her husband's family here, she had no
close relatives of her own or property in the United Kingdom.
Furthermore, she has her own parents and eleven brothers and
sisters in Mauritius to whom she could turn to for support at
this sad time."
The applicant applied for judicial review of the Secretary of
State's refusal to accede to the recommendation. An oral hearing was
held before Mr. Justice Dyson of the High Court on 19 December 1996,
the applicant being represented by Counsel. Leave to apply for judicial
review was refused.
B. The relevant domestic law
The Immigration Rules state in so far as relevant, as follows:
"132. A person who was admitted for a limited period or
given an extension of stay, as the spouse of a person settled
here, may have the time limit on their stay removed at the end
of that period if the Secretary of State is satisfied that the
marriage has not been terminated and that each of the parties has
the intention of living permanently with the other as his or her
spouse."
COMPLAINTS
The applicant complains that to oblige her to leave the United
Kingdom, would constitute a violation of Articles 3 and 8 of the
Convention.
THE LAW
1. The applicant complains that refusal to allow her to stay in the
United Kingdom would amount to inhuman or degrading treatment.
Article 3 (Art. 3) of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission recalls that:
"ill-treatment must attain a minimum level of severity if it is
to fall within the scope of Article 3 (Art. 3). The assessment of this
minimum is, in the nature of things, relative: it depends on all the
circumstances of the case, such as the duration of the treatment, its
physical or mental effects and in some cases, the sex, age and state
of health of the victim etc. " (Eur. Court HR, Ireland v. United
Kingdom judgment of 18 January 1978, Series A no. 25 p. 65, para. 162).
The Commission considers that in the circumstances of the present
case the effect on the applicant of the refusal to allow her to
continue to reside in the United Kingdom, does not attain the level of
severity required in order to constitute a breach of Article 3
(Art. 3) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains that to separate her from her deceased
husband's family, constitutes an interference with her family life in
breach of Article 8 (Art. 8) of the Convention.
Article 8 (Art. 8) of the Convention provides as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
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 Commission recalls that Article 8 (Art. 8) of the Convention
does not in itself guarantee a right to enter or remain in a particular
country, although issues under this Article may arise where a person
is excluded or removed from a country where his close relatives reside
or have the right to reside. 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. Whether removal or
exclusion of a family member from a Contracting State is compatible
with the requirements of Article 8 (Art. 8) will depend on a number of
factors - the extent to which family life is effectively ruptured,
whether there are insurmountable obstacles in the way of the family
living in the country of origin of one or more of them, whether there
are factors of immigration control or considerations of public order
weighing in favour of exclusion (see Sorabjee v. the United Kingdom,
No. 23938/94, Dec. 23.10.95).
The Commission notes that the applicant's case was considered by
the Secretary of State on more than one occasion, and by the High Court
in an application to seek judicial review of the Secretary of State's
decision. The Commission notes the relatively short time that the
applicant had spent in the United Kingdom (since 1992); the fact that,
apart from her deceased husband's family, she had no close relatives
of her own in the United Kingdom and that she had her own parents and
eleven brothers and sisters in Mauritius. The Commission further notes
that these factors were considered by the Secretary of State who also
acknowledged that the applicant had grown close to her deceased
husband's family, prior to his refusal to exercise his discretion to
grant permission to stay.
The Commission considers that the facts of the case do not
disclose a lack of respect for the applicant's respect for her family
life as guaranteed by Article 8 (Art. 8) of the Convention.
It follows that this part of 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy