AS TO THE ADMISSIBILITY OF
Application No. 19882/92
by A.B.
against the United Kingdom
The European Commission of Human Rights sitting in private on
6 January 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G. B. REFFI
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 21 February 1992
by A.B. against the United Kingdom and registered on
23 April 1992 under file No. 19882/92 ;
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 national born in 1957 and resident in
Surrey. She is represented in the proceedings before the Commission
by Messrs. Hafiz & Co., solicitors practising in London.
The facts, as submitted by the applicant and which may be deduced
from the documents lodged with the application, may be summarised as
follows.
The applicant was born in Pakistan from where she emigrated in
1975, at the age of 18, when she married a British national also of
Pakistani origin. However, shortly afterwards they separated and
divorced. The applicant remained in the United Kingdom and at present
works as an assistant manageress of a travel agency. She became a
naturalised British citizen in 1981.
In January 1988 the applicant returned to Pakistan in order to
attend her niece's wedding. During her visit she met M.A., a distant
relative, eight years her junior. After this meeting their parents
arranged a marriage between them and the couple married two and a half
months later, not having had any further contact meanwhile. They lived
together for six weeks and then the applicant returned to the United
Kingdom. The husband owns a carpet business.
The applicant and her husband kept in contact through
correspondence. The applicant also visited her husband in Pakistan for
three weeks in January - February 1989, 17 days in June 1989 and five
weeks in 1990. The applicant became pregnant in 1989 but had a
miscarriage.
On 21 August 1988 M.A. applied for entry clearance to the United
Kingdom. On 28 September 1989 the application was refused. His appeal
to an Adjudicator was refused on 4 March 1991, on the ground that he
was deemed to have contracted the marriage for the primary purpose of
immigrating to the United Kingdom in contravention of para. 46 of the
Immigration Rules (HC 169/503).
The Adjudicator doubted the credibility of the applicant and her
husband as their answers to several questions were inconsistent. He
found "extremely unlikely" the applicant's statement that only four
weeks after the marriage (and two weeks before her departure) the
couple had began to discuss in which country they would live together.
On 27 June 1991 the Adjudicator's decision was upheld by an
Immigration Appeal Tribunal. On 11 December 1991 leave to apply for
judicial review was refused by the High Court.
COMPLAINTS
The applicant complains of the refusal to allow her husband to
enter the United Kingdom. She invokes Articles 8, 13 and 14 of the
Convention.
THE LAW
The applicant complains of the British Immigration Authorities'
refusal of her husband's entry into the United Kingdom and invokes
Articles 8, 13 and 14 (Art. 8, 13, 14) of the Convention.
1. 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 Commission noted the findings of fact by the Entry Clearance
Officer, upheld by the Adjudicator and 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. This was borne
out by the interview of the applicant's husband with the Entry
Clearance Officer.
The Commission recalls that, 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
Article 8 (Art. 8) of the Convention (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).
The provision 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 been fully established. The
Commission notes that the applicant and M.A. have lived together in
Pakistan, namely six weeks in 1988, five weeks in 1989 and five further
weeks in 1990.
The Commission recalls, however, 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. In its
judgment, the Court made the following statement:
"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".
(Eur. Court H.R. Abdulaziz, Cabales and Balkandali judgment of
28 May 1985, Series A no. 94, p. 34, para. 68).
The Commission notes that it has not been shown that there were
obstacles to establishing family life in the applicant's home country,
Bangladesh, from where she originates and lived until she was 12 years
of age.
In the circumstances the Commission concludes that the decision
to refuse the applicant's husband entry into the United Kingdom has not
failed to respect her right to respect for family life, ensured by
Article 8 para. 1 (Art. 8-1) of the Convention.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. Without further explanation the applicant alleges a violation of
Article 14(Art. 14) of the Convention which prohibits discrimination
in the securement of Convention rights and freedoms on any ground such
as race. The Commission notes, however, that para. 46 of the
Immigration Rules (HC 169/503) prohibits entry clearance being given
to foreign spouses on the ground, inter alia, that the primary purpose
of the marriage was to emigrate to the United Kingdom.
The Commission finds no evidence that such a restriction is
intended to discriminate against persons on the ground of sex, race or
any other ground referred to in Article 14 (Art. 14). The provision
makes no reference to a particular sex or racial or social group and
applies equally to all persons who fall within its scope (cf.
aforementioned Abdulaziz, Cabales and Balkandali judgment, pp. 39-41,
paras. 84-86). The Commission concludes, therefore, that this aspect
of the case is unsubstantiated and must be rejected as being manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant has also invoked Article 13 (Art. 13) of the
Convention in respect of her complaints.
Article 13 (Art. 13) 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 European Court of Human Rights establishes,
however, that Article 13 (Art. 13) does not require a remedy in
domestic law in respect of any supposed grievance under the Convention,
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 conclusion that the applicant's
complaints under Articles 8 and 14 (Art. 8, 14) 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 a remedy under Article 13 (Art. 13) of the Convention.
This part of the application must also therefore be rejected as
being 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. KRÜGER) (C.A. NØRGAARD)
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