EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 14830/89
Abdullah YOUSEF
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 30 June 1992)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 13). . . . . . . . . . . . . . . . . . . .1-2
A. The application
(paras. 2 - 4). . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5 - 8). . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 9 - 13) . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 14 - 27) . . . . . . . . . . . . . . . . . . .3-6
A. The particular circumstances of the case
(paras. 14 - 25). . . . . . . . . . . . . . . . .3-5
B. The relevant domestic law and practice
(paras. 26 - 27). . . . . . . . . . . . . . . . .5-6
III. OPINION OF THE COMMISSION
(paras. 28 - 53) . . . . . . . . . . . . . . . . . . 7-13
A. Complaints declared admissible
(para. 28). . . . . . . . . . . . . . . . . . . . .7
B. Points at issue
(para. 29). . . . . . . . . . . . . . . . . . . . .7
C. As regards Article 8 of the Convention
(paras. 30 - 44). . . . . . . . . . . . . . . . 7-11
D. As regards Article 13 of the Convention
(paras. 45 - 51). . . . . . . . . . . . . . . .11-13
E. Recapitulation
(paras. 52 - 53). . . . . . . . . . . . . . . . . 13
APPENDIX I : HISTORY OF PROCEEDINGS. . . . . . . . . . . . 14
APPENDIX II : DECISION ON ADMISSIBILITY . . . . . . . . . . 15
OF THE APPLICATION
I. INTRODUCTION
1. The following is an outline of the case, as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a citizen of Kuwait, born in 1960 and resident
in Sajat, Kuwait. He was represented before the Commission by
Mr. P. Simm, Solicitor, Messrs. Edwards Frais, Liverpool.
3. The application is directed against the United Kingdom. The
respondent Government were represented by their Agent, Mr. M.C. Wood,
succeeded by Mr. N. Parker and Mrs. A. Glover, all of the Foreign and
Commonwealth Office.
4. The case concerns the refusal by British immigration authorities
to allow the applicant to re-enter the United Kingdom where his young
son by a broken marriage lives and with whom he wished to stay in
contact. It raises issues under Articles 8 and 13 of the Convention.
B. The proceedings
5. The application was introduced on 7 February 1989 and registered
on 28 March 1989. After a preliminary examination of the case by the
Rapporteur, the Commission considered the admissibility of the
application on 6 July 1989. It decided to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits. The
Government's observations were submitted, after an extension of the
time limit, on 20 December 1989, to which the applicant replied on
6 March 1990.
6. On 7 September 1990 the Commission decided to invite the parties
to present their submissions orally at a hearing. The President of the
Commission granted the applicant legal aid on 26 October 1990. The
hearing, on admissibility and merits, was held in Strasbourg on
8 November 1990. The Government were represented by Mr. N. Parker,
Agent, Mr. J. Eadie, Counsel, Mr. S. Bramley, Home Office, Adviser, and
Mr. C. Miller, Home Office, Adviser. The applicant was represented by
Mr. P. Simm, Solicitor, Ms. S. Lewis Anthony, Inter Rights, Adviser,
and Ms. M. O'Reilly, Adviser. Following the hearing and deliberations
the Commission declared the application admissible on the same day.
7. On 14 December 1990 the parties were sent the text of the
Commission's decision on admissibility and invited to submit such
further evidence or additional observations as they wished. No further
observations were submitted by the parties.
8. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. Consultations with the parties took place between
8 February 1991 and 25 March 1992. In the light of the parties'
reaction, the Commission now finds that there is no basis on which such
a settlement can be effected.
C. The present Report
9. The present Report has been drawn up by the Commission in
pursuance of Article 31 para. 1 of the Convention and after
deliberations and votes in plenary session, the following members being
present:
MM. C. A. NØRGAARD, President
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H. G. SCHERMERS
Mrs. G. H. THUNE
Sir Basil HALL
M. C. L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
M. P. PELLONPÄÄ
10. The text of this Report was adopted on 30 June 1992 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
11. The purpose of the Report, pursuant to Article 31 of the
Convention is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
12. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
13. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
14. The applicant first entered the United Kingdom in 1978 for the
purpose of nautical studies under the sponsorship of his employers, the
United Arab Shipping Company. He returned on several occasions between
1979 and 1985 in connection with his studies and training. On
6 July 1985 the applicant married a British citizen. On the basis of
this marriage he was initially granted leave to remain until
13 August 1986. A child of the marriage, Tariq, was born on
15 March 1986.
15. On 4 February 1986 the applicant was convicted of an offence
under the Theft Act 1968 (Abstracting electricity - fined £100). He
was advised on 20 August 1986 that this conviction would be taken into
account in considering any future application for an extension of his
stay.
16. On 12 August 1986, he re-applied at the immigration office in
Liverpool for further leave to remain as the husband of a British
citizen. When his wife was interviewed, however, she said that she
intended to divorce him for physical and mental cruelty (treatment
denied by the applicant); she also intended seeking an injunction to
prevent the applicant having access to their son. When the applicant
was interviewed he stated that he was unemployed, that he had not
worked for the United Arab Shipping Company for two years, that he had
failed his studies and would not pursue them further and that the
family still lived together, the mortgage and other living expenses
being met from public funds.
17. While the applicant's re-application was being considered his
wife informed the immigration officer that she had decided not to
proceed with plans to divorce her husband but to make a final attempt
at reconciliation. She added, however, that she would proceed with a
divorce if matters were again to become unsatisfactory. Given his
wife's statements it was decided to grant the applicant a further
period of leave to remain until 13 August 1987.
18. The applicant travelled to Spain on 1 August 1987. While he was
abroad, his wife attended the Immigration Office at Liverpool and said
that her husband was due to return on 8 August. She wished action to
be taken to prevent her husband gaining access to herself and their
child, Tariq. She stated that she intended to divorce him, because of
his violence towards her, and to leave their home for an address which
she did not wish to disclose before her husband returned. She added
that the home was liable to be repossessed by the applicant's debtors.
She subsequently informed the immigration officer that she was not
certain that she did not want to see her husband as she had yet to
discuss divorce with him and had been unable to secure alternative
accommodation. The applicant claims that his wife was pressured by
immigration officers, for racist reasons, to take this stance. The
applicant arrived at Manchester Airport on 8 August 1987 and sought
leave to enter to rejoin his wife. He was granted temporary admission
pending inquiries and, for the convenience of all parties,
responsibility for the case was transferred to the Immigration Office
at Liverpool.
19. On 1 October 1987, the wife was interviewed and said that her
marriage to the applicant was definitely over and that she had now left
their home. Her solicitors later provided a letter confirming that she
had filed a divorce petition on 23 September and that their
instructions were to pursue it. On 6 October, the immigration officer
interviewed the applicant. He said that his wife was still at their
home. When his wife's earlier statement to the contrary was put to him
he replied, "She told me she would come back. I was told by my
solicitors to say that she was living with me." The applicant also
said that he was unemployed with no source of income.
20. The immigration officer then considered the facts of the case:
The applicant had sought entry in order to rejoin his wife. It was
evident, however, that his marriage no longer subsisted and, therefore,
that each of the parties did not have the intention of living
permanently with the other as a spouse. The officer was therefore not
satisfied that the applicant qualified for admission under the
Immigration Rules and accordingly refused him leave to enter on
6 October 1987. While in detention pending arrangements for his return
to Kuwait the applicant took an overdose of paracetamol tablets and he
was immediately taken by ambulance to hospital where he was admitted
for observation until 12 October. The Hospital Registrar opined that
there was no evidence to suggest mental disorder or any lasting ill
effects. The applicant was granted further temporary admission and his
solicitors applied for judicial review of the immigration officer's
decision. This application was refused by the High Court on
3 November 1987. Counsel advised against an appeal to the Court of
Appeal given its little prospect of success; thus a renewed application
for leave was abandoned.
21. The applicant had a strong loving relationship with his son and
sought his custody in the divorce proceedings. During those
proceedings the wife openly recognised the good relationship between
the father and the child. Accordingly, interim care and control were
given to the wife, with regular short access visits for the applicant,
supervised by the social services. The applicant exercised supervised
access to Tariq once a week for an hour at a time between November 1987
and October 1988 and then on five occasions under the same conditions
between 1 November 1988 and 23 January 1989. The nature of the access
was restricted because of the impending threat of the applicant's
deportation and the wife's fear that in those circumstances the
applicant might abscond with the child. The applicant apparently
conceded that if he had had freer access to Tariq he would have
absconded with him.
22. A matrimonial court welfare report dated 10 March 1988 talked of
"a strong bond that exists between father and son". A further report
dated 26 October 1988 talked of the child, Tariq, "relating in a warm
and loving way to both" of his parents. The final welfare report of
23 January 1989 not only talked of a "strong and affectionate bond
between the father and the child", but clearly stated that it would
have been beneficial to the child if that could be maintained in more
normal circumstances, i.e. without the threat of the applicant's
removal from the United Kingdom which effectively prevented his
reasonable access to the child.
23. On 30 January 1989 the matrimonial court (Liverpool County Court)
held that it was in the best interests of the child to have access to
his "caring and loving" father, but no access was ordered because of
the applicant's pending removal from the United Kingdom. The County
Court envisaged limited access on agreement by the parents should the
applicant return. On 25 January 1989 the Minister of State had
rejected representations made in November 1988 that the applicant be
allowed to remain in the United Kingdom to ensure access to his son on
the basis of the judgment of the European Court of Human Rights in the
Berrehab case (judgment of 21 June 1988, Series A no. 138).
24. In a letter of 30 November 1988, the applicant's representatives
at that time, the Liverpool Law Centre, informed the Home Office for
the first time that he had a strong and loving relationship with
another British citizen by whom he had had a child, Leon, born on
29 August 1987. According to the Law Centre, the relationship between
this lady and the applicant, begun in November 1986, had not developed
into a fuller loving relationship until the applicant and his wife had
separated. The Secretary of State was urged to allow the applicant
exceptionally to remain to continue the relationship for the benefit
of this child. The Minister of State rejected these new elements on
25 January 1989. He considered that it would be "quite wrong" to allow
the applicant to transfer to the relationship with the other British
woman all the arguments he had been pursuing so vigorously to be
admitted in order to stay with his wife. He insisted that the
applicant leave the country. He found the applicant's case
distinguishable from the Berrehab judgment by which, anyway, he
considered himself not bound. The applicant left the United Kingdom
pursuant to the Secretary of State's removal directions on
24 February 1989. He received legal advice that an application for
judicial review of the Minister's refusal to exercise his discretion,
exceptionally and outside the Immigration Rules, would have little
prospect of success.
25. Since leaving the United Kingdom the applicant has had virtually
no contact with his first son, Tariq. He claims to have sent the child
several cards, but his ex-wife has stated that only one letter, written
a month after his departure, has been received. He has not applied for
leave to enter as a visitor to see Tariq. He has, however, kept in
regular contact with the mother of his second child, although he has
made no application for entry clearance as her fiancé. He states that
he is experiencing difficulties renewing his passport and is therefore
unable to travel.
B. The relevant domestic law and practice
26. Section 3(1)(a) of the Immigration Act 1971 prohibits the
unauthorised entry of anyone other than British citizens into the
United Kingdom. Leave of entry may be given by immigration officers
(section 4(1) of the 1971 Act) to spouses provided, inter alia, that
the couple has the intention of living permanently together and that
they can maintain themselves without recourse to public funds
(paragraph 46 ("spouses") of the Statement of Changes in Immigration
Rules HC 169, as amended by paragraph 10 of HC 503). Other than entry
as a temporary visitor or tourist, there is no provision in these Rules
to authorise long-term entry and leave to remain for the purpose of
exercising regular parental access rights to a child. Such leave could
only be granted outside the Rules, exceptionally and at the discretion
of the Secretary of State. Section 13 of the 1971 Act provides, inter
alia, for a right of appeal to an independent Adjudicator against a
refusal of entry, which appeal, in the circumstances of this kind of
case, must be lodged from outside United Kingdom territory. Whilst an
Adjudicator's task is principally to ensure the lawful application of
the Immigration Rules, he may also make recommendations that matters
falling entirely within the Secretary of State's discretion be decided
differently. Such recommendations are sometimes followed. Judicial
review of ministerial decisions may be granted and the offending
decision quashed if it could be shown to be illegal, improper or
irrational. It would lie if the decision maker had taken account of
irrelevant considerations or failed to take into account relevant
considerations.
27. Kuwaiti citizens do not need visas to enter the United Kingdom.
Applying for entry clearance is therefore optional, albeit advisable.
A passenger to the United Kingdom could be admitted as a visitor for
up to six months.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
28. The Commission has declared admissible the applicant's complaints
that the refusal to allow him to re-enter the United Kingdom in order
to facilitate his access to his son, Tariq, was in breach of
Articles 8 and 13 (Art. 8, 13) of the Convention.
B. Points at issue
29. The following are the points at issue in the present application:
- whether the refusal to allow the applicant to re-enter the United
Kingdom was in violation of his right to respect for family life
ensured by Article 8 (Art. 8) of the Convention;
- whether the applicant has effective remedies, pursuant to
Article 13 (Art. 13) of the Convention, under English law for his
Article 8 (Art. 8) claim.
C. As regards Article 8 (Art. 8) of the Convention
30. The relevant part of Article 8 (Art. 8) of the Convention reads
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 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."
a) Interference with a right to respect for family life
31. The applicant claims to have suffered an interference with his
right to respect for family life in relation to his son, Tariq. While
he was in England it was recognised by the High Court that the two of
them had a strong loving relationship. He refers to the fact that the
Prime Minister of the day, Margaret Thatcher, had publicly stressed a
father's special duties towards his child notwithstanding a broken
marriage. The applicant was aware of his duties and sought to perform
them by providing love and support for his son, but he had been
deterred and subsequently stopped from doing so by the Secretary of
State's decision to refuse him permission to re-enter the United
Kingdom. This, in his submission, constituted a clear interference
with his right under Article 8 para. 1 (Art. 8-1) of the Convention.
32. The Government refute the applicant's claim. They submit that
"family life", within the meaning of Article 8 para. 1 (Art. 8-1) of
the Convention, no longer existed between the applicant and Tariq at
the relevant time, given the custody and limited access arrangements
ordered by the matrimonial courts. Furthermore, by then the applicant
had established another relationship with a British woman who bore him
a son. Even if there were "family life" between the applicant and
Tariq, there was no interference, given the possibility open to the
applicant to visit the United Kingdom for up to six months at a time,
to apply to enter as the fiancé of the other British woman or for the
ex-wife and Tariq to visit the applicant in Kuwait.
33. The Commission refers to the judgment of the European Court of
Human Rights in the Berrehab case in which the Court held that from the
moment of a child's birth "there exists between him and his parents a
bond amounting to 'family life', even if the parents are not living
together. Subsequent events, of course may break that tie", but that
is a question of fact to be determined in each case (Eur. Court H.R.,
Berrehab judgment of 21 June 1988, Series A no. 138, p. 14, para. 21).
34. As regards the facts of the present case, the Commission notes
that the applicant had lived with his son for the first 18 months of
the child's life and that he had tried to have regular access to him
despite opposition from his ex-wife. The matrimonial courts had
recognised the strength of the affection between father and son. In
these circumstances the Commission concludes that there was "family
life", within the meaning of Article 8 para. 1 (Art. 8-1) of the
Convention, between the applicant and his son at the relevant time.
Thus the refusal to allow the applicant to re-enter the United Kingdom
amounted to an interference with the exercise of the right to respect
for family life and falls to be considered under the second paragraph
of Article 8 (Art. 8-2).
b) In accordance with the law
35. It is not disputed between the parties that the interference with
the applicant's right to respect for family life was in accordance with
the law, namely the Immigration Act 1971 and the Statement of Changes
in Immigration Rules HC 169 as amended (para. 26 above).
c) Legitimate aim
36. It is also not contested by the applicant that the Secretary of
State's decision pursued the legitimate aim of the prevention of
disorder, the effective enforcement of immigration policies under
domestic law falling within this notion. In this connection the
Commission has constantly emphasised the close connection between the
enforcement of immigration controls and considerations of public order
(cf. eg No. 8245/78, Dec. 6.5.81, D.R. 24 p. 98, and No. 9285/81,
Dec. 6.7.82, D.R. 29 p. 205).
37. During the proceedings before the Commission in this case,
reference was also made to the protection of the interests of the
economic well-being of the country in the light of the applicant's
unemployment and dependency on State welfare benefits. The Government
submit that this element of the case is of relevance but not of
overriding importence. The Commission would agree with the Government.
38. Accordingly the Commission concludes that the Secretary of
State's refusal to allow the applicant to re-enter the United Kingdom
pursued the legitimate aim of preventing disorder and, subsidiarily,
of protecting the economic interests of the country.
d) Necessary in a democratic society
39. The key issue under Article 8 (Art. 8) of the Convention in the
present case is whether it was necessary in the circumstances to refuse
the applicant's re-entry into the United Kingdom.
40. The applicant claims that the refusal was neither necessary nor
proportionate to the aims described above. He submits that to have
allowed him to remain to facilitate continued access to his son would
not have led to disorder. He emphasises that he was not an alien
seeking admission to the United Kingdom for the first time; he was a
person who had lived lawfully there for many years, studying, working
and sustaining a long relationship with the person who later became his
wife and bore him Tariq. On separation from her the applicant
scrupulously nurtured his relationship with his child. Thus the
breakdown of his marriage, his relationship with another British woman,
his immigration history and criminal conviction were irrelevant to the
fact that he had a strong loving relationship with his son. It is the
quality of that relationship which is the determining factor, not the
quantity of access which was restricted by the domestic courts because
of his pending removal from the United Kingdom. The courts' welfare
reports recognised that it would have been beneficial for the child to
have had continued access to his father in more normal circumstances.
He considers that the possibility of entering the United Kingdom as a
visitor is impractical for financial reasons and because of the
unlikelihood of being granted such leave by the immigration
authorities. (He also claims to be experiencing difficulties in Kuwait
renewing his passport and, therefore, of being able to travel.) Given
the acrimony between him and his ex-wife, she would probably not bring
Tariq to visit the applicant in Kuwait, even if they could afford to.
He contends that the circumstances of his application are comparable
to that of Mr. Berrehab in whose case both the Commission and Court
found a breach of Article 8 (Art. 8) of the Convention (loc. cit.
p. 16 para. 29).
41. The Government submit, having regard to their margin of
appreciation in the field of immigration policy, that any interference
with the applicant's right to respect for family life was necessary and
proportionate to a pressing social need, namely, the maintenance of
effective immigration controls. Such controls benefit settled
immigrants as well as the indigenous population and secure good
relations between the different communities living in the United
Kingdom. As regards the specific facts of the present case, the
Government refer to the allegations of the applicant's wife about the
breakdown of the marriage (allegations denied by the applicant), the
applicant's relationship with another British woman and child, the
short time the applicant lived with his son, the limited access
arrangements after the divorce, an unimpressive immigration history
(failed examinations, unemployment), his criminal conviction, his
failure to keep in touch with his son since returning to Kuwait,
(although he has kept in touch with the second British woman), and the
possibility for him to return to the United Kingdom as a visitor
without the need to obtain prior entry clearance. They contend that
the circumstances of the applicant's case cannot be favourably compared
with those of Mr. Berrehab.
42. The Commission considers that Article 8 (Art. 8) does not impose
a general obligation on States to allow aliens to remain on their
territory for the purpose of enjoying access to children of a broken
marriage. Whether a refusal to allow an alien to re-enter or remain
in a particular country for this purpose is necessary will depend on
the facts of the individual case. The Commission refers to the
Berrehab case, which both parties have relied on, and which concerned
the expulsion of a Moroccan. He had lived and worked without reproach
since 1977 in the Netherlands and had married a Dutch citizen who bore
him a daughter, Rebecca. The marriage broke down and he was expelled
from the Netherlands in 1983 when his daughter was nearly four years
old. Until then he had maintained good relations with his ex-wife,
held joint guardianship of the child, saw his daughter four times a
week, for several hours at a time, and contributed to her maintenance
and education. Contact was sustained after the expulsion. (He
subsequently remarried his ex-wife and returned to the Netherlands on
that basis in 1985.) The Court held as follows:
"28. In determining whether an interference was 'necessary in
a democratic society', the Court makes allowance for the margin
of appreciation that is left to the Contracting States ...
In this connection, it accepts that the Convention does not in
principle prohibit the Contracting States from regulating the
entry and length of stay of aliens. According to the Court's
established case-law, ... however, 'necessity' implies that the
interference corresponds to a pressing social need and, in
particular, that it is proportionate to the legitimate aim
pursued.
29. Having to ascertain whether this latter condition was
satisfied in the instance case, the Court observes, firstly, that
its function is not to pass judgment on the Netherlands'
immigration and residence policy as such. It has only to examine
the interferences complained of, and it must do this not solely
from the point of view of immigration and residence, but also
with regard to the applicants' mutual interest in continuing
their relations. As the Netherlands Court of Cassation also
noted ... the legitimate aim pursued has to be weighed against
the seriousness of the interference with the applicants' right
to respect for their family life.
As to the aim pursued, it must be emphasised that the instant
case did not concern an alien seeking admission to the
Netherlands for the first time but a person who had already
lawfully lived there for several years, who had a home and a job
there, and against whom the Government did not claim to have any
complaint. Furthermore, Mr. Berrehab already had real family
ties there - he had married a Dutch woman, and a child had been
born of the marriage.
As to the extent of the interference, it is to be noted that
there had been very close ties between Mr. Berrehab and his
daughter for several years ... and that the refusal of an
independent residence permit and the ensuing expulsion threatened
to break those ties. That effect of the interferences in issue
was the more serious as Rebecca needed to remain in contact with
her father, seeing especially that she was very young.
Having regard to these particular circumstances, the Court
considers that a proper balance was not achieved between the
interests involved and that there was therefore a disproportion
between the means employed and the legitimate aim pursued. That
being so, the Court cannot consider the disputed measures as
being necessary in a democratic society. It thus concludes that
there was a violation of Article 8 (Art. 8)."
43. Taking into account the Government's margin of appreciation in
this field, the Commission considers that the facts of the present case
do not compare favourably with those of Mr. Berrehab. The Commission
finds that the applicant had a weaker relationship with his son Tariq
than Mr. Berrehab had with his daughter, Rebecca, because of the
applicant's preoccupation with the second British woman. This is
reflected in the fact that the applicant has not kept in touch with
Tariq but has maintained contact with this lady. The Commission notes
that the applicant was unemployed, reliant on state benefits and was
unable to make any contribution to his son's maintenance and education.
It also notes his minor criminal conviction. Mr. Berrehab, in
contrast, was employed, paid maintenance for his daughter, contributed
to her education and his conduct was irreproachable. The applicant did
not have custody of Tariq and was awarded limited access of a visit per
week, whereas Mr. Berrehab had joint guardianship of Rebecca with his
wife and he saw her four times a week. In these circumstances the
Commission is satisfied that the Secretary of State's decision refusing
the applicant re-entry into the United Kingdom was not disproportionate
to the legitimate aims of preventing disorder, through the enforcement
of immigration controls, and the protection of the economic interests
of the country. In the Commission's opinion, this decision can
therefore be considered as necessary under Article 8 para. 2 (Art. 8-2)
of the Convention.
Conclusion
44. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 8 (Art. 8) of the Convention.
D. As regards Article 13 (Art. 13) of the Convention
45. Article 13 (Art. 13) of the Convention provides as follows:
"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."
46. The applicant complains that he had no effective domestic remedy,
contrary to Article 13 (Art. 13) of the Convention, to test his
substantive Article 8 (Art. 8) claim. He submits that his case fell
outside the Immigration Rules and his immigration status was a matter
for the pure discretion of the Secretary of State. A refusal by the
Secretary of State to exercise that discretion in the applicant's
favour attached no right of appeal and no possibility of judicial
review.
47. The Government contend that the applicant has no arguable claim
under Article 8 (Art. 8) of the Convention which would require an
effective domestic remedy. Even if the applicant's Article 8 (Art. 8)
complaint were arguable, they submit that the applicant had effective
domestic remedies by way of judicial review before the High Court, or
an appeal to an Adjudicator, who could make a recommendation.
48. The Commission refers to the constant case-law of the European
Court of Human Rights that "Article 13 (Art. 13) of the Convention
cannot reasonably be interpreted so as to require a remedy in domestic
law of any supposed grievance under the Convention that an individual
may have, no matter how unmeritorious his complaint may be: 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. 24, para. 52). In view of the Commission's considerations
regarding the applicant's complaint under Article 8 (Art. 8) of the
Convention (paras. 30-44 above), that complaint cannot be regarded as
unarguable on its merits. The Commission must therefore proceed to
examine whether the applicant had at his disposal effective domestic
remedies within the meaning of Article 13 (Art. 13) of the Convention.
49. The Commission notes that the Immigration Act 1971 and the
Statement of Changes in Immigration Rules HC 169, as amended, make no
provision for entry to be granted to an alien after divorce wishing to
exercise effective access to his child who is entitled to live in the
United Kingdom. Only a request to the Secretary of State for
compassionate leave to re-enter outside the Immigration Rules could be
made. This the applicant tried and failed. The Government suggest
that the applicant could have appealed from outside the United Kingdom
to an Adjudicator who could have made a recommendation that the
Secretary of State exercise his discretion in the applicant's favour,
outside the Immigration Rules, and that such a recommendation would
receive serious consideration from the Secretary of State who might
follow it. However the Commission observes that the role of the
immigration appellate authorities is to ensure observance of the
Immigration Rules and that such a recommendation would be a matter of
discretion for the Adjudicator. It considers that the possible
exercise of an Adjudicator's discretion, to be followed by the possible
exercise of the Secretary of State's discretion, does not offer
sufficient guarantees of efficacy which might satisfy the requirements
of Article 13 (Art. 13) of the Convention.
50. The Government also suggest that the applicant could have sought
judicial review of the Secretary of State's refusal to exercise his
discretion outside the Immigration Rules in the applicant's favour.
However, the Government have not been able to indicate any domestic
legal precedents showing that such a remedy against the exercise of a
Minister's discretion, which is based on prerogative rather than
statute, would have had any prospect of success. In the circumstances
the Commission is not persuaded that the immigration appellate
authorities or the High Court with judicial review could provide,
either individually or as an aggregate, a remedy satisfying Article 13
(Art. 13) of the Convention.
Conclusion
51. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 13 (Art. 13) of the Convention in that the
applicant did not have any effective domestic remedy available to him
in respect of his claim under Article 8 (Art. 8) of the Convention.
E. Recapitulation
52. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 8 (Art. 8) of the Convention (para. 44
above).
53. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 13 (Art. 13) of the Convention in that the
applicant did not have any effective domestic remedy available to him
in respect of his claim under Article 8 (Art. 8) of the Convention
(para. 51 above).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_________________________________________________________________
07.02.89 Introduction of application
28.03.89 Registration of application
Examination of Admissibility
06.07.89 Commission's decision to give
notice of application to respondent
Government and to invite parties to
submit written observations on
admissibility and merits
20.12.89 Government's observations
06.03.90 Applicant's observations
07.09.90 Commission's decision to hold a
hearing
08.11.90 Hearing on admissibility and merits,
the parties being represented as
follows:
Government :
Mr. N. Parker, Agent
Mr. J. Eadie, Counsel
Mr. S. Bramley, Home Office, Adviser
Mr. C. Miller, Home Office, Adviser
Applicant :
Mr. P. Simm, Solicitor
Ms. S. Lewis Anthony, Inter Rights,
Adviser
Ms. M. O'Reilly, Adviser
08.11.90 Commission's decision to declare
application admissible
Examination of the Merits
14.12.90 Parties invited to submit whatever
further information or observations
they wished
02.03.91 Consideration of state of proceedings
06.07.91 Consideration of state of proceedings
07.12.91 Consideration of state of proceedings
04.04.92 Consideration of state of proceedings
30.06.92 Commission's deliberations on merits,
and on text of its Article 31 Report.
Final votes taken. Adoption of Report
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