FIRST CHAMBER
AS TO THE ADMISSIBILITY OF
Application No. 19577/92
by T.A. and H.N.
against the United Kingdom
__________
The European Commission of Human Rights (First Chamber), sitting
in private on 8 January 1993, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
G.B. REFFI
Mrs. M.F. BUQUICCHIO, Secretary to the First 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 17 December 1991
by T.A. and H.N. against the United Kingdom and registered on 4 March
1992 under file No. 19577/92;
Having regard to the report provided for in Rule 47 of the
Commission's Rules of Procedure;
Having deliberated,
Decides as follows:
THE FACTS
The first applicant was born in Bangladesh in 1935. He has been
living in the United Kingdom since 1962, becoming a British citizen in
1968. The second applicant is his wife, also of Bangladeshi origin,
born in 1936. They are represented before the Commission by Messrs
James & Co., Solicitors, Bradford.
The facts of the case, as submitted by the applicants and which
may be decuded from documents submitted with the application, may be
summarised as follows:
In 1973 the first applicant applied for entry clearance to the
United Kingdom for the second applicant, three of his sons and one
daughter. All the children were at that time under 16 years of age.
In 1976 the second applicant was given entry clearance along with
her daughter and her fourth son who had been born subsequent to the
original application to enter the United Kingdom. A decision on entry
for the three sons was adjourned for further consideration.
Following an interview on 4 November 1977 between the three sons
and the Entry Clearance Officer their application was refused on the
grounds that they were not believed to be related to the first
applicant as claimed.
An appeal against the decision of the Entry Clearance Officer was
dismissed by an Adjudicator on 21 April 1980 on the grounds that the
sons had failed to discharge the burden placed upon them to prove that
they were related to the first applicant as claimed.
On 11 March 1980 the sons made a further application for entry
clearance. By this time, according to birth dates submitted by the
first applicant, they were aged 29, 25 and 23 respectively. In April
1988 the Entry Clearance Officer again refused entry on the grounds
that he was not satisfied that they were the sons of the first
applicant, and because they were now all over the age of 18 and could
no longer be considered dependents. An appeal against this decision
was dismissed by an Adjudicator in December 1989.
A DNA blood test (report dated 13 April 1989) subsequently
established that the sons were related to the first applicant.
On 14 June 1989 a Statement was delivered in Parliament by the
Secretary of State regarding those people who had been refused entry
clearance as children, because there had been no satisfactory evidence
as to the claimed family relationship, but who had subsequently been
able to prove the family link by DNA blood testing. He made it clear
that the Immigration Rules only envisaged the entry of children and
dependents and that, as the earlier decisions had been taken in good
faith, a person over the age of 18 re-applying for entry to the United
Kingdom to join a family on the basis of new DNA evidence would only
be admitted in the following circumstances:
"a. that he was refused entry clearance as a child on
relationship grounds;
b. that DNA evidence establishes that he was, after all,
related as claimed;
c. that he is still wholly or mainly dependent on his
sponsor in the United Kingdom; and
d. that there are compassionate circumstances in his
case."
On 23 June 1989 representations were made on behalf of the first
applicant, asking the Secretary of State to exercise his discretion and
permit the three sons to enter the United Kingdom. As part of these
representations the first applicant pointed out that one of the sons
was now significantly mentally disturbed, and that the second applicant
had also spent a period of time as an in-patient in a mental hospital.
These developments he claimed were as a result of the family being
caused to live apart for such a long period of time.
The Secretary of State replied to the applicants' solicitor on
7 August 1989 as follows:
"I refer to your letter of 23 June on behalf of [SA, RA and AA],
who have applied for settlement as the dependent sons of [TA].
As you know, all three men were refused entry clearance most
recently on 5 April 1988, on that occasion on the grounds that
they were over 18 when their application was made and they were
not living alone in the most exceptional compassionate
circumstances. An appeal is pending against this decision.
As you are aware, the Home Secretary announced on 14 June that
he was prepared to consider exercising his discretion outside the
Immigration Rules in certain circumstances where a person
previously refused entry clearance on relationship grounds is now
able to establish relationship by means of DNA evidence, as is
the case here. The applications made by [the three men] have
been reviewed in the light of the Home Secretary's statement.
The Secretary of State has carefully considered all the
circumstances of the case, including the representations made in
your letter of 23 June. He accepts that [AA] is mentally
retarded; and he notes that one brother and one sister were
granted entry clearance in 1976. Two more children have
subsequently been born in the United Kingdom. However, he also
notes that [SA, RA and AA] are now aged 32, 28 and 26
respectively. [SA] is married and earns an income from dealing
with fertilisers which is used to support himself and other
family members, in addition to the income from the family land.
He further notes that the three brothers are living on the family
compound with [TA's] mother and other relatives. Finally, he
notes that the sponsor, [TA], left Bangladesh in June 1974 and
was joined by his wife and two children in June 1976. [The
applicants] returned to Bangladesh for the first time in March
1986. Consequently, by 1986 the three remaining sons had lived
apart from their parents for a period of nearly 12 years and
nearly 10 years respectively.
The Secretary of State takes the view that these three applicants
have each settled into independent adult life and cannot in any
real sense be regarded as dependent on their United Kingdom
sponsor. Furthermore, although [AA's] mental condition is
clearly a relevant factor, as it appears that he has for many
years been living and working with his brothers rather than his
parents, the Secretary of State does not regard this factor alone
as decisive. As regards [SA and RA], the Secretary of State is
not satisfied that there are any compassionate factors which
distinguish their case from the generality of overage
reapplicants.
Accordingly, having regard to the terms of his statement on
14 June and having considered all the circumstances of this case,
the Secretary of State is not prepared to exercise his discretion
outside the Immigration Rules to authorise the issue of entry
clearance to [SA, RA or AA]."
The applicants' solicitors requested the Secretary of State to
exercise his power under section 21 of the Immigration Act 1971 to
refer the sons' case back to an Adjudicator for an advisory opinion.
On 3 September 1990 the Secretary of State refused to do so on the
general grounds that he will not "normally exercise his power under
section 21 of the 1971 Act in cases involving overage reapplicants
where he has already considered exercising his discretion under the
terms of his statement of 14 June (1989), but has decided not to do so
... He has decided not to depart from his general approach in these
cases".
The first applicant was refused leave to apply for judicial
review of the Secretary of State's decision on 18 August 1991.
COMPLAINTS
The applicants complain that they are victims of a violation of
Articles 8, 13 and 14 of the Convention:
"Article 8 has been violated in that the natural desire of the
applicants to have a normal family life including in particular
the care of their mentally handicapped son has been violated.
Article 13 is violated in that there is in practice no manner in
which the case can be brought before a court in the United
Kingdom, and the only possible route which was a referral under
section 21 of the Immigration Act 1971 was refused ...
Article 14 has been violated in that the rule was formulated in
the specific knowledge that the vast and overwhelming majority
of those who were likely to be affected by the rule originated
in the Indian Sub-Continent and were by race, colour, language
and religion different to the general population of the United
Kingdom and it is the belief of the applicants that if they were
of the general race, colour, language and religion of the
overwhelming majority of the population of the United Kingdom
that either the rule would have been written differently or the
discretion would have been exercised differently under the rule."
THE LAW
The applicants complain of the refusal of entry clearance by the
British immigration authorities to allow their three sons to join them
in the United Kingdom.
1. 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, para. 1 of which guarantees inter alia, the right to
respect for family life (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. 5.7.82,
D.R. 29 p. 205).
However, in examining cases of the present kind the Commission's
first task is to consider whether a sufficient link exists between the
relatives concerned as to give rise to the protection of Article 8
(Art. 8) of the Convention (cf. No. 9492/81, Dec. 14.7.82, D.R. 30 p.
232). Generally, the protection of family life under Article 8
(Art. 8) involves cohabiting dependents, such as parents and their
dependent, minor children. Whether it extends to other relationships
depends on the circumstances of the particular case. Relationships
between adults, parents and their sons, aged 35, 32 and 29 respectively
in the present case, would not necessarily attract the protection of
Article 8 (Art. 8) of the Convention without evidence of further
elements of dependency, involving more than the normal, emotional ties
(No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).
The Commission understands the applicants' frustration arising
from the initial refusal in 1976 to grant entry clearance before their
relationship with their sons could be proved by DNA blood testing. If
they could have proved their relationship earlier the sons would have
been likely to have been granted entry to the United Kingdom. However,
no allegation of bad faith on the part of the immigration authorities
has been made by the applicants. In this connection the Commission
recalls its constant case-law that such verification procedures, as
existed in the United Kingdom in 1976 and which gave immigrants a fair
opportunity to present their family life claims, satisfied the
requirements of Article 8 (Art. 8) of the Convention (No. 8378/78,
Kamal v. the United Kingdom, Dec. 14.5.80, D.R. 20 p. 168). The
Commission considers therefore that its examination of the case under
Article 8 (Art. 8) of the Convention must be limited to the applicants'
present day circumstances and the nature of their relationship with
their sons now.
As regards the facts of the present case, the Commission notes
that the sons have strong ties with Bangladesh, where they have lived
all their lives. The family apparently has land, from which they are
able to live and the eldest son is married and deals in fertilisers.
They all live on the family compound with their grandmother and other
relatives. Although the mental health of one of the sons seems to be
deteriorating, he is being cared for by his brothers and other members
of his family. It is by no means clear that a move to the United
Kingdom would necessarily improve his condition. Furthermore, there
is no evidence in the case-file to substantiate the second applicant's
claim that she is suffering mentally and physically to a serious degree
because of the separation from her adult children.
The Commission finds that no evidence has been provided which
indicates that there exists a sufficiently close link between the
applicants and their sons which could be deemed to require the
protection afforded by Article 8 (Art. 8) of the Convention to family
life. It concludes, therefore, that the present case does not disclose
any appearance of a breach of the right to respect for family life,
within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.
Accordingly this part of the application must be rejected as being
manifestly ill-founded, within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicants next complain that the entry clearance rules
applied in their case amounted to discrimination contrary to Article
14 of the Convention, presumably read in conjunction with Article 8
(Art. 14+8) of the Convention, on alleged grounds of race, colour,
language and religion. Article 14 (Art. 14) of the Convention
prohibits discrimination in the securement of Convention rights.
However, the Commission again finds no evidence in the present
case to substantiate the applicants' claim. The immigration rules and
practices in question are applicable in general to all "non patrials"
wanting to enter or settle in that country. They do not differentiate
between persons or groups on the ground of race or ethnic origin. They
are applicable across the board to intending immigrants from all parts
of the world, irrespective of their national origin (cf. Eur. Court
H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series
A No. 94, pp. 39-41, paras. 84-86).
In these circumstances the Commission concludes that the present
case does not disclose any appearance of a violation of Article 14 of
the Convention read in conjunction with Article 8 (Art. 14+8). It
follows that this part of the application is manifestly ill-founded.
3. Finally the applicants complain of a violation of Article 13
(Art. 13) of the Convention which guarantees an effective domestic
remedy for breaches of the Convention.
However, the case-law of the Commission establishes that Article
13 (Art. 13) does not require a remedy in domestic law for all claims
alleging a violation of the Convention. The grievance must be an
arguable one (Eur. Court H.R., Boyle and Rice judgment of 27 April
1988, Series A no. 131, p. 23, para. 52). In light of the above
conclusions concerning the applicants' complaints under Articles 8 and
14 (Art. 8, 14) of the Convention, the Commission finds that the
applicants do not have an arguable claim of a breach of these
provisions which warrants a remedy under Article 13 (Art. 13). 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 unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (J.A. FROWEIN)
Full & Egal Universal Law Academy