AS TO THE ADMISSIBILITY OF
Application No. 12687/87
by Saira HAMID
against the United Kingdom
The European Commission of Human Rights sitting in private on
9 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
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 10 December
1986 by Saira HAMID against the United Kingdom and registered on
2 February 1987 under file No. 12687/87;
Having regard to:
- reports provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the Commission's decision of 13 July 1987 to bring the
application to the notice of the respondent Government
and invite them to submit written observations on its
admissibility and merits;
- information provided by the Government on 25 November
1987 and 22 June 1988;
- information provided by the applicant's representative
on 8 September 1988 ;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of the United Kingdom, resident in
London, and she is represented before the Commission by Mr. Don Flynn
of the North Islington Law Centre.
The facts according to the applicant and the official
documentation lodged with the application may be summarised as
follows:
The applicant's parents are citizens of Pakistan settled in
the United Kingdom and on one of the applicant's rare visits to
Pakistan the applicant married a Pakistani citizen in 1983. In
January 1984 he was refused entry clearance to live with the applicant
in the United Kingdom because the immigration authorities considered
that the marriage was primarily entered into to obtain his admission
to the United Kingdom, contrary to paragraph 54 of the Statement of
Changes in Immigration Rules HC 169 (paragraph 54 of these Rules was
subsequently amended to remove differences in treatment between men
and women). This decision was upheld by an Adjudicator and
Immigration Appeal Tribunal (decision of 6 March 1986). However, on
25 November 1987 the Government informed the Commission that they had
decided to review the case and on 22 June 1988 further informed the
Commission that entry clearance had been granted to the applicant's
husband for a period of 12 months, with the possibility of renewal.
COMPLAINTS
The applicant complains of sexual discrimination allegedly
embodied in the Statement of Changes in Immigration Rules HC 169, in
force at the material time, and in Section 1 (5) of the Immigration
Act 1971. She invokes Articles 8, 13 and 14 of the Convention. She
wishes to maintain her application to the Commission despite the entry
clearance granted to her husband because he has not been given
indefinite leave to remain at the outset and thus she has not
benefitted from Section 1 (5) of the Immigration Act 1971 ; five years
have elapsed between the marriage and entry clearance and she has
incurred considerable expense travelling to and from Pakistan to visit
her husband during that period.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 December 1986 and
registered on 2 February 1987.
After a preliminary examination of the case by the Rapporteur,
the Commission considered the admissibility of the case on 13 July
1987 and decided, pursuant to Rule 42 paragraph 2 (b) of the
Commission's Rules of Procedure, that notice of the application should
be given to the respondent Government and that the Government be
invited to submit their written observations on the admissibility and
merits of the application.
On 25 November 1987 the Government informed the Commission
that, whilst the applicant's Convention submissions were not accepted,
they would nevertheless reconsider the case of the applicant's
husband. On 22 June 1988 the Government further informed the
Commission that they had decided to grant the applicant's husband
entry clearance for a period of 12 months in the first instance. The
applicant's representative submitted on 8 September 1988 that the
applicant nevertheless wished to maintain her application for the
reasons outlined above (see COMPLAINTS).
THE LAW
The applicant complains of sexual discrimination in
immigration rules in force at the material time and in immigration
legislation, by which her Pakistani husband was originally denied
entry clearance into the United Kingdom. She claims to be a victim of
a violation of Article 8 (Art. 8) of the Convention (right to respect for
family life, subject to certain limited exceptions) and Article 14
(Art. 14) (freedom from discrimination in the securement of Convention
rights and freedoms), in relation to which she claims to have had no
effective domestic remedies, contrary to Article 13 (Art. 13) of the
Convention.
However, the Commission notes that the Government have
reviewed their original decision and that the applicant's husband has
been granted entry clearance which can be renewed. Moreover, the
difference in treatment between the sexes in the immigration rules, of
which complaint has also been made by the applicant, has been
abolished. In these circumstances the Commission concludes that the
factual basis of the applicant's complaint has been resolved and that
she can no longer claim to be a victim of a violation of the
Convention, within the meaning of Article 25 (Art. 25).
It follows that the application must be rejected as being
manifestly ill-founded, pursuant to 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)