CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 mai 1985

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THE UNITED KINGDOM   (Application no. 9214/80; 9473/81; 9474/81)             JUDGMENT       STRASBOURG   28 May 1985 In the case of Abdulaziz, Cabales and Balkandali [] , The European Court of Human Rights, taking its decision in plenary session in pursuance of Rule 50 of the Rules of Court and composed of the following judges:   Mr.   G. Wiarda , President ,   Mr.   R. Ryssdal ,   Mr.   J. Cremona ,   Mr.   Thór Vilhjálmsson ,   Mr.   W. Ganshof van der Meersch ,   Mr.   D. Evrigenis ,   Mr.   F. Gölcüklü ,   Mr.   F. Matscher ,   Mr.   L.-E. Pettiti ,   Mr.   B. Walsh ,   Sir   Vincent Evans ,   Mr.   C. Russo ,   Mr.   R. Bernhardt ,   Mr.   J. Gersing , and also of Mr. M.-A. Eissen , Registrar , and Mr. H. Petzold , Deputy Registrar , Having deliberated in private on 27 and 28 September and 24 November 1984 and 23 and 24 April 1985, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.   The present case was referred to the Court by the European Commission of Human Rights ("the Commission") on 14 October 1983, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). The case originated in three applications (nos. 9214/80, 9473/81 and 9474/81) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission in 1980 and 1981 under Article 25 (art. 25) by Mrs. Nargis Abdulaziz, Mrs. Arcely Cabales and Mrs. Sohair Balkandali. When she filed her application, Mrs. Abdulaziz was either stateless or a citizen of Malawi, Mrs. Cabales was a citizen of the Philippines and Mrs. Balkandali was a citizen of the United Kingdom and Colonies. Mrs. Abdulaziz, who at the outset was designated by the initial X, subsequently consented to the disclosure of her identity. As is explained in paragraph 48 below, a question arose during the proceedings before the Court as to the validity of the second applicant's marriage; for the sake of convenience, the present judgment will refer to her throughout as "Mrs. Cabales". 2.   The Commission's request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The request sought a decision from the Court as to the existence of violations of Article 3 (art. 3), Article 8 (art. 8) (taken alone or in conjunction with Article 14) (art. 14+8) and Article 13 (art. 13). 3.   In response to the inquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicants stated that they wished to take part in the proceedings pending before the Court and designated the lawyer who would represent them (Rule 30). 4.   The Chamber of seven judges to be constituted included, as ex officio members, Sir Vincent Evans, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr. G. Wiarda, the President of the Court (Rule 21 para. 3 (b)). On 27 October 1983, the President drew by lot, in the presence of the Registrar, the names of the five other members, namely Mr. R. Ryssdal, Mr. W. Ganshof van der Meersch, Mr. G. Lagergren, Mr. L. Liesch and Mr. R. Macdonald (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). 5.   Mr. Wiarda, who had assumed the office of President of the Chamber (Rule 21 para. 5), consulted, through the Registrar, the Agent of the United Kingdom Government ("the Government"), the Commission's Delegate and the applicants' representative on the necessity for a written procedure (Rule 37 para. 1). On 10 November 1983, he directed that the said Agent and representative should each have until 10 February 1984 to file a memorial and that the Delegate should be entitled to file, within two months from the date of the transmission to him by the Registrar of whichever of the aforesaid documents should last be filed, a memorial in reply. The President subsequently agreed to extend the Government's time-limit until 9 March 1984 and the applicants' until 30 March 1984. The Government's memorial was filed with the registry on 12 March and the applicants' on 30 March 1984. By letter of 15 May, the Secretary to the Commission informed the Registrar that the Delegate would present his observations at the hearings. 6.   On 22 May 1984, the Chamber decided under Rule 50 to relinquish jurisdiction forthwith in favour of the plenary Court. 7.   After consulting, through the Registrar, the Agent of the Government, the Commission's Delegate and the applicants' representative, the President directed on 28 May that the oral proceedings should open on 25 September 1984. 8.   The hearings were held in public at the Human Rights Building, Strasbourg, on the appointed day. Immediately before they opened, the Court had held a preparatory meeting. There appeared before the Court: - for the Government:   Mrs. A. Glover , Legal Adviser,       Foreign and Commonwealth Office,   Agent ,   Lord Rawlinson , Q.C.,   Mr. J. Laws , Barrister-at-Law,   Counsel ,   Mrs. S. Evans , Home Office,   Mrs. J. Reisz , Home Office,   Mr. R. Fries , Home Office,   Advisers ; - for the Commission:   Mr. J.A. Carrillo ,   Delegate ; - for the applicants:   Mr. M. Beloff , Q.C.,   Prof. R. Higgins ,   Counsel ,   Mr. S. Grosz , Solicitor. The Court heard addresses by Lord Rawlinson for the Government, by Mr. Carrillo for the Commission and by Mr. Beloff for the applicants, as well as their replies to questions put by the Court and by several of its members. 9.   On various dates between 27 July 1984 and 8 February 1985, the registry received from, as the case may be, the Government, the applicants or the Commission replies to questions which the Court had addressed on 7 August 1984 to those appearing before it, further memorials and observations and certain other documents. AS TO THE FACTS 10.   The applicants are lawfully and permanently settled in the United Kingdom. In accordance with the immigration rules in force at the material time, Mr. Abdulaziz, Mr. Cabales and Mr. Balkandali were refused permission to remain with or join them in that country as their husbands. The applicants maintained that, on this account, they had been victims of a practice of discrimination on the grounds of sex, race and also, in the case of Mrs. Balkandali, birth, and that there had been violations of Article 3 (art. 3) of the Convention and of Article 8 (art. 8), taken alone or in conjunction with Article 14 (art. 14+8). They further alleged that, contrary to Article 13 (art. 13), no effective domestic remedy existed for the aforesaid claims. I.   DOMESTIC LAW AND PRACTICE A. History and background 11.   The evolution of immigration controls in the United Kingdom has to be seen in the light of the history of the British Empire and the corresponding developments in nationality laws. Originally all persons born within or having a specified connection with the United Kingdom or the dominions owed allegiance to the Crown and were British subjects. A common British nationality was, however, difficult to reconcile with the independence of the self-governing countries of the Commonwealth into which the Empire was transformed. As the various territories concerned became independent, they introduced their own citizenship laws but, for the purposes of United Kingdom law, persons having the citizenship of an independent Commonwealth country retained a special status, known as "British subject" or "Commonwealth citizen" (these terms being synonymous). This status was also held by "citizens of the United Kingdom and Colonies". Prior to 1 January 1983, the latter citizenship was, briefly, acquired by birth within the United Kingdom or one of its remaining dependencies, by descent from a father having that citizenship, by naturalisation or by registration (British Nationality Act 1948). 12.   Whereas aliens have been subject to continuing strict immigration controls over a long period, the same is not true of Commonwealth citizens. Until 1962, the latter, irrespective of their local citizenship, all had freedom to enter the United Kingdom for work and permanent residence, without any restriction. A rapid rise in the influx of immigrants, especially in 1960 and 1961, and the consequent danger of the rate of immigration exceeding the country's capacity to absorb them led to a radical change in this situation. The Commonwealth Immigrants Act 1962, and then the Commonwealth Immigrants Act 1968, restricted the right of entry of, and imposed immigration controls on, certain classes of Commonwealth citizens, including citizens of the United Kingdom and Colonies, who did not have close links to Britain. B. The Immigration Act 1971 13.   The existing immigration laws were amended and replaced by the Immigration Act 1971 ("the 1971 Act"), which came into force on 1 January 1973. One of its main purposes was to assimilate immigration controls over incoming Commonwealth citizens having no close links to Britain to the corresponding rules for aliens. The Act created two new categories of persons for immigration purposes, namely those having the right of abode in the United Kingdom ("patrials") and those not having that right ("non-patrials"). 14.   "Patrials" were to be free from immigration controls. The status of "patrial" was intended to designate Commonwealth citizens who "belonged" to the United Kingdom and, in summary, was conferred (by section 2 of the 1971 Act) on: (a) citizens of the United Kingdom and Colonies who had acquired that citizenship by birth, adoption, naturalisation or registration in the British Islands (that is, the United Kingdom, the Channel Islands and the Isle of Man), or were the children or grandchildren of any such persons; (b) citizens of the United Kingdom and Colonies who had at any time been settled in the British Islands for at least five years; (c) other Commonwealth citizens who were the children of a person having citizenship of the United Kingdom and Colonies by virtue of birth in the British Islands; (d) women, being Commonwealth citizens, who were or had been married to a man falling within any of the preceding categories. 15.   Under section 1(2) of the 1971 Act, "non-patrials" (whether Commonwealth citizens or aliens) "may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed" by the Act. Subject to certain exceptions not relevant to the present case, a "non-patrial" shall not enter the United Kingdom unless given leave to do so (section 3(1)). He may be given such leave (or, if he is already in the country, leave to remain) either for a limited or for an indefinite period; in the former case, the leave may be subject to conditions restricting employment or requiring registration with the police or both (ibid.). Where limited leave to enter or remain is granted, it may subsequently be varied, either as regards its duration or the conditions attaching thereto but, if the limit on duration is removed, any conditions attached to the leave cease to apply (section 3(3)). The power to give or refuse leave to enter is exercised by immigration officers but the power to give or vary leave to remain can be exercised only by the Home Secretary (section 4(1)). C. The Immigration Rules 16.   Under section 3(2) of the 1971 Act, the Home Secretary is obliged from time to time to lay before Parliament statements of the rules, or of any changes therein, laid down by him as to the practice to be followed in the administration of the Act for regulating entry into and stay in the United Kingdom. These rules contain instructions to immigration officers as to how they shall exercise the statutory discretions given to them by the Act and statements of the manner in which the Home Secretary will exercise his own powers of control after entry. The rules are required to provide for the admission of persons coming for the purpose of taking employment, or for the purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom, but uniform provision does not have to be made for these categories and, in particular, account may be taken of citizenship or nationality (sections 1(4) and 3(2)). Thus, different rules can be and are made for nationals of the member States of the European Economic Community under Community law, and Irish citizens are in a special position. 17.   The rules are subject to a negative resolution procedure whereby, if a resolution disapproving the Home Secretary's statement is passed by either House of Parliament within forty days of its being laid, he is required as soon as may be to make such changes as appear to him to be required in the circumstances and to lay the rules as amended before Parliament within forty days of the passing of the resolution (section 3(2)). The statement of rules thus amended is subject to the same procedure as the original statement. Because of the continuous nature of decision-making by immigration officers, the statement originally laid is not abrogated by any negative resolution; it will come into operation when made or on the date therein provided and will remain in force until replaced. 18.   The exact legal status of the rules is of some complexity. This question was considered by the Court of Appeal in R. v. Secretary of State for the Home Department, ex parte Hosenball [1977] 3 All England Law Reports 452, when Lord Denning MR said: "[The Home Secretary's rules] are not rules of law. They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the [1971 Act]. They can be, and often are, prayed in aid by applicants before the courts in immigration cases. To some extent the courts must have regard to them because there are provisions in the Act itself, particularly in section 19, which show that in appeals to an adjudicator, if the immigration rules have not been complied with, then the appeal is to be allowed. In addition the courts always have regard to those rules, not only in matters where there is a right of appeal; but also in cases under prerogative writs where there is a question whether officers have acted fairly. But they are not rules in the nature of delegated legislation so as to amount to strict rules of law." Lord Justice Geoffrey Lane also doubted whether the rules constituted delegated legislation. He observed: "These rules are very difficult to categorise or classify. They are in a class of their own. They are certainly a practical guide for ... immigration officers .... Indeed they are, as to large parts, ... little more than explanatory notes of the [1971 Act] itself." However, he noted that if Parliament disapproved of the rules, they were not thereby abrogated. Furthermore, at least as far as an adjudicator dealing with appeals was concerned, the rules had the force of law, although it seemed that they could be departed from with the consent of the applicant himself. Lord Justice Cumming-Bruce said: "[The rules] are a totally different kind of publication from the rules that usually come into being under the authority delegated to Ministers under Acts of Parliament; ... they are not in my view in any sense of themselves of legislative force. It is true that ... the rules are given legal effect in the field of the appellate process to the adjudicator or the tribunal .... But the legal effect that the rules have in that limited field flows not from the fact that they have been published by the Minister and laid before Parliament, but because by section 19(2) of the [1971 Act] the rules are given an effect which is in a certain field clearly legally enforceable, and that is a quite different matter." 19.   Notwithstanding that an application for entry clearance (see paragraph 22 (b) below) or leave to enter or remain may fall to be refused under the relevant immigration rules, the Home Secretary has a discretion, deriving from historic prerogative powers, to authorise in exceptional circumstances the grant of entry clearance or of leave to enter, or to allow a person to remain in the United Kingdom. Where the applicant is a husband seeking to join or remain with his wife settled in the United Kingdom, factors which the Home Secretary will consider include the extent of her ties with that country and of the hardship she might suffer by going to live abroad, and any recommendations by the immigration appellate authorities (see paragraphs 34-37 below). D. Position at the time of the events giving rise to the present case 1. Introduction 20.   The rules in force at the time of the events giving rise to the present case were contained in the "Statement of Changes in Immigration Rules" (HC 394), laid before Parliament on 20 February 1980 ("the 1980 Rules"); they applied to all decisions taken on or after 1 March 1980, except those relating to applications made on or before 14 November 1979. A draft of the rules had previously been included in a White Paper published in November 1979. The 1980 Rules, which in paragraph 2 instructed immigration officers to carry out their duties without regard to the race, colour or religion of the intending entrant, detailed firstly the controls to be exercised on the entry into the United Kingdom of "non-patrials" and then those to be exercised after entry. The former depended on whether the individual concerned was coming for temporary purposes (for example, visitors or students), for employment or business or as a person of independent means, or for settlement. As under the rules previously in force, visitors were normally to be prohibited from taking employment and persons wishing to come for employment were subject to strict regulations as to work permits. The work-permit requirements, however, did not apply to nationals of other member States of the European Economic Community nor to persons covered by the "United Kingdom ancestry rule"; under the latter rule, which had been in force since the 1971 Act came into operation, a Commonwealth citizen having a grandparent born in the British Islands and wishing to take or seek employment in the United Kingdom could obtain indefinite leave to enter even without a work permit. A further exception was to be found in the "working holiday rule", whereby young Commonwealth citizens could, without a permit, take employment incidental to an extended holiday being spent in the United Kingdom; however, the period of their stay could, under the 1980 Rules, not exceed two years. All these exceptions have been maintained in subsequent immigration rules. 21.   A particular feature of the changes introduced by the 1980 Rules was the inclusion of a number of provisions directed towards implementing a policy of protecting the domestic labour market at a time of high unemployment by curtailing "primary immigration", that is immigration by someone who could be expected to seek full-time work in order to support a family. In taking these measures, the Government were concerned also to advance public tranquillity and, by exercising firm and fair immigration control, to assist in securing good community relations. To these ends, among the changes effected was the introduction of stricter conditions for the grant of leave to a "non-patrial" husband or fiancé seeking to join or remain with his wife or fiancée settled in the United Kingdom. Previously, any such husband or fiancé would normally have been allowed to settle after a qualifying period, provided that the primary purpose of the marriage was not to obtain settlement in that country. These new measures were not extended to the wives and fiancées of settled men, a fact attributed by the Government to long-standing commitments (based allegedly on humanitarian, social and ethical reasons) to the reunification of the families of male immigrants. Nor did the new measures apply to nationals of other member States of the European Economic Community. 22.   The relevant provisions of the 1980 Rules - and of their successors - are summarised below in terms of the following expressions. (a) A person is "settled in the United Kingdom" when he or she is ordinarily resident there without having entered or remained in breach of the immigration laws, and is free from any restriction on the period for which he or she may remain (paragraph 1). (b) An "entry clearance" (paragraphs 10-14) is a document (either a visa, an entry certificate or a Home Office letter of consent, depending on the nationality of the person concerned) which is to be taken by an immigration officer as evidence that the holder, although a "non-patrial", is eligible under the immigration rules for entry to the United Kingdom. It is obtained at British missions abroad or from the Home Office prior to arrival in the United Kingdom. (c) A marriage or intended marriage is "non-qualifying" if there is reason to believe that: - its primary purpose is to obtain admission to or settlement in the United Kingdom; or - the parties do not intend to live together permanently as man and wife; or - the parties have not met (paragraphs 50, 52 and 117). (d) There is "potential evasion of the rules" if there is reason to believe that a husband has remained in the United Kingdom in breach of the immigration rules before the marriage, that the marriage has taken place after a decision or recommendation that he be deported or that the marriage has terminated (paragraph 117). (e) The "financial requirement" is a requirement that varies according to the circumstances of the particular case : basically it means that adequate maintenance and accommodation must be available to the person concerned without the need for recourse to public funds (paragraphs 42, 52 and 55). 2. "Non-patrials" seeking to join a spouse or intended spouse settled in the United Kingdom 23.   Where a "non-patrial" whose spouse or intended spouse was "settled in the United Kingdom" came to that country for settlement, he or she would be admitted for that purpose provided that he or she held a current "entry clearance" and unless the circumstances specified in paragraph 13 of the 1980 Rules obtained (for example, false representations, medical grounds, criminal record, exclusion would be conducive to the public good). (a) Where the intending entrant was a husband or fiancé, he could, under paragraphs 50 and 52, obtain an "entry clearance": (i) unless the marriage or intended marriage was "non-qualifying"; (ii) if his wife or fiancée was a citizen of the United Kingdom and Colonies who or one of whose parents had been born in the United Kingdom; and (iii) if, in the cases of fiancés only, the "financial requirement" was satisfied. (b) Where the intending entrant was a wife or fiancée, she could, under paragraphs 42, 43 and 55, obtain an "entry clearance" irrespective of the nationality of her husband or fiancé or of his own or his parents' place of birth. Here, there was no provision as to "non-qualifying" marriages, but the "financial requirement" had generally to be satisfied. (c) Wives admitted under these rules would be given indefinite leave to enter; husbands would be initially admitted for twelve months and fiancés or fiancées for three months, with the possibility, subject to certain safeguards, of applying subsequently to the Home Office for indefinite leave (paragraphs 44, 51, 53, 55, 114 and 116). 3. "Non-patrials" seeking to remain in the United Kingdom with a spouse settled there 24.   "Non-patrials" already admitted to the United Kingdom in a temporary capacity who subsequently married a person "settled in the United Kingdom" could also obtain permission to stay. (a) Where the "non-patrial" seeking permission was a man, the basic conditions (paragraph 117) were that: (i) his wife was a citizen of the United Kingdom and Colonies who or one of whose parents had been born in the United Kingdom; and (ii) the marriage was not "non-qualifying" and there was not "potential evasion of the rules". (b) Where the "non-patrial" seeking permission was a woman, she would normally be granted leave to remain on application (paragraph 115). (c) Leave to remain granted under these rules would be, for wives, indefinite and, for husbands, for an initial period of twelve months with the possibility, subject again to the conditions referred to in sub-paragraph (a) (ii) above, of subsequent removal of the time-limit (paragraphs 115 and 117). 4. General considerations regarding leave to remain 25.   Decisions on applications for leave to remain were taken in the light of all relevant facts; thus, even where the individual satisfied the formal requirements, permission would normally be refused if the circumstances specified in paragraph 88 of the 1980 Rules obtained (for example, false representations, non-compliance with the time-limit or conditions subject to which he or she had been admitted or given leave to remain, undesirable character, danger to national security). E. Subsequent developments 1. Introduction 26.   One result of the 1971 Act was that the right of abode in the United Kingdom became divorced from nationality : thus, a number of citizens of the United Kingdom and Colonies did not have that right (for example, because they had not been born in the British Islands; see paragraph 14 (a) above), whereas it was enjoyed by a number of persons who were not such citizens (for example, Commonwealth citizens having an ancestral link with the United Kingdom; see paragraph 14 (c) above). With a view to bringing citizenship and immigration laws into line, the position was substantially amended by the British Nationality Act 1981, which came into force on 1 January 1983. So far as is relevant for the present purposes, that Act: (a) replaced citizenship of the United Kingdom and Colonies (see paragraph 11 in fine above) with three separate citizenships, "British", "British Dependent Territories" and "British Overseas"; (b) provided, in section 11(1), that on 1 January 1983 "British citizenship" was to be acquired by persons who were then citizens of the United Kingdom and Colonies and had the right of abode in the United Kingdom under the 1971 Act; this category could include a person who was neither born nor had a parent born in the United Kingdom (see paragraph 14 (b) above); (c) laid down detailed provisions on the acquisition of British citizenship by persons born after 1 January 1983; (d) contained, in section 6 and Schedule 1, detailed provisions on naturalisation as a British citizen on the basis of residence in the United Kingdom, the grant of a certificate of naturalisation being at the discretion of the Home Secretary; (e) amended the 1971 Act by providing in section 39 that the right of abode in the United Kingdom - use of the expressions "patrial" and "non-patrial" was abandoned - and the consequential freedom from immigration controls were in future to be enjoyed only by British citizens and by such Commonwealth citizens as on 31 December 1982 had the right of abode under the 1971 Act. 2. The 1982 immigration rules 27.   On 6 December 1982, after debates in the House of Commons and the House of Lords, the Home Secretary laid before Parliament a Statement of Changes in Immigration Rules (HC 66; "the 1982 Rules"), intended to harmonise the immigration rules with the British Nationality Act 1981 and expressed to come into force on 1 January 1983. However, on 15 December 1982 the House of Commons passed a resolution disapproving the Statement, some Members finding the changes too lax and others, insufficient. Since by 1 January 1983 no further changes had been laid before Parliament, the 1982 Rules came into force on that date, notwithstanding the negative resolution (see paragraph 17 above). 28.   The 1982 Rules made no changes to the regime governing wives and fiancées, described in paragraphs 23-25 above. The regime governing a husband or fiancé was modified in the following main respects. (a) The requirement that, for him to be eligible for leave to enter or remain, his wife or fiancée had to be a citizen of the United Kingdom and Colonies born or having a parent born in the United Kingdom was, under paragraphs 41, 54 and 126, replaced by a requirement that she be a British citizen. The place of her own or her parents' birth ceased to be material since British citizens could include persons without the territorial birth link (for example, a woman born in a former Colony but having the right of abode in the United Kingdom by virtue of long residence there; see paragraphs 14 (b) and 26 (b) above). (b) By virtue of paragraphs 41, 54 and 126, the onus of proof was reversed, so that it became for the man seeking leave to enter or remain to show that the marriage was not "non-qualifying" or, in cases to which paragraph 126 applied, that there was not "potential evasion of the rules". (c) Leave to remain for settlement following marriage, granted to a man admitted in a temporary capacity (cf. paragraph 24 (c) above), would be for an initial period of twelve months, followed by a further period of twelve months and then by the possibility, subject again to the conditions referred to in sub-paragraph (b) above, of subsequent removal of the time-limit (paragraph 126). 29.   No provision was made in the 1982 Rules for women settled in the United Kingdom who were not British citizens to be joined by their husbands, although leave could be granted by the Home Secretary in the exercise of his extra-statutory discretion (see paragraph 19 above). These women could also apply for naturalisation as British citizens on the basis of residence, under section 6 of the British Nationality Act 1981 (see paragraph 26 (d) above). 3. The 1983 immigration rules 30.   On 9 February 1983, a further Statement of Changes in Immigration Rules (HC 169; "the 1983 Rules") was laid before Parliament. A motion disapproving these rules was defeated in the House of Commons and they came into force on 16 February 1983. 31.   The 1983 Rules again did not modify the regime governing wives and fiancées. That governing husbands was amended, so far as is material to the present case, in that, under paragraph 126, the position concerning the length of leave to remain granted to a man already in the United Kingdom reverted to that obtaining under the 1980 Rules (that is, initial leave of twelve months, followed by the possibility of indefinite leave; see paragraph 24 (c) above). This change was coupled with a transitional provision (paragraph 177) concerning men who, whilst the 1982 Rules were in force (see paragraph 28 (c) above), had been granted thereunder an extension of stay for a second period of twelve months: they were entitled to apply immediately for indefinite leave without awaiting the expiry of that period. 32.   There was no change in the position concerning women settled in the United Kingdom who were not British citizens, described in paragraph 29 above.   F. Sanctions 33.   Under sections 3(5)(a), 3(6), 5, 6, 7 and 24(1)(b) of the 1971 Act, a person not having the right of abode in the United Kingdom and having only limited leave to enter or remain in that country who overstays the period of leave or fails to observe a condition attached thereto: (a) commits a criminal offence punishable with a fine of not more than £200 or imprisonment of not more than six months or both, to which penalties the court may, with certain exceptions, add a recommendation for deportation; and (b) is, with certain exceptions, liable to deportation, although he cannot be compelled to leave unless the Home Secretary decides to make a deportation order against him. G. Appeals 34.   Appellate authorities in immigration matters were established by the Immigration Appeals Act 1969. They consist of: (a) adjudicators, who sit alone and are appointed by the Home Secretary; (b) the Immigration Appeal Tribunal which sits in divisions of at least three members; the members are appointed by the Lord Chancellor and a certain number must be lawyers. There is no further right of appeal as such to the ordinary courts, but decisions of the appellate authorities are susceptible to judicial review by the High Court on the ground of such matters as error of law or unreasonableness. Judicial review of immigration decisions may also cover questions of an abuse or excess of power by the Home Secretary or whether an immigration officer acted impartially and fairly. 35.   Under sections 13, 14 and 15 of the 1971 Act, an appeal may, subject to certain exceptions, be made to an adjudicator against, inter alia: (a) refusal of leave to enter the United Kingdom or of an entry clearance; (b) variation of, or refusal to vary, a limited leave to remain in the United Kingdom; (c) a decision to make a deportation order. An appellant shall not be required to leave the United Kingdom by reason of the expiration of his leave so long as his appeal is pending against a refusal to enlarge or remove the limit on the duration of the leave. However, no appeal lies against refusal of an extension of leave to remain if application therefor was made after expiry of the existing leave. 36.   Except as otherwise provided by the 1971 Act, an adjudicator is, under section 19(1), to allow an appeal only if he considers: (a) that the decision or action in question was not in accordance with the law or any immigration rules applicable to the case; or (b) that, where the decision or action involved the exercise of a discretion by the Home Secretary or an officer, that discretion should have been exercised differently. If, however, the decision or action is in accordance with the rules, the adjudicator may not review a refusal by the Home Secretary of a request, by the person concerned, that he should depart from the rules (section 19(2)). Where an appeal is allowed, the adjudicator must give such directions for giving effect to his decision as he thinks requisite and may also make further recommendations; the directions are binding on the Home Secretary except so long as an appeal to the Immigration Appeal Tribunal can be brought or is pending (sections 19(3) and 20(2)). 37.   Any party to an appeal to an adjudicator may appeal against his decision to the Immigration Appeal Tribunal, which may affirm that decision or make any other decision which the adjudicator could have made; it also has similar duties and powers in the matter of directions and recommendations. As the law stood at the relevant time, leave to appeal had generally to be obtained; it had to be granted, inter alia, if determination of the appeal turned upon an arguable point of law (section 20(1) of the 1971 Act and Rule 14 of the Immigration Appeals (Procedure) Rules 1972). H. Statistics 38.   (a) The Government estimated total immigration into the United Kingdom from the New Commonwealth (that is, the Commonwealth except Australia, Canada and New Zealand) at 500,000 in the period from 1955 to mid-1962. It was thought that by the latter date some 600 million people had the right of abode (see paragraphs 13-14 above) in the United Kingdom. Between mid-1962 and the end of 1981, a further 900,000 people were estimated to have settled in that country from the New Commonwealth and Pakistan, some 420,000 from non-Commonwealth countries other than Pakistan and some 94,000 from the Old Commonwealth (Australia, Canada and New Zealand); relatively few countries were said to have accounted for most of this immigration. The official estimates for 1981 show that the population of the United Kingdom (53.7 million) included 2.2 million persons of New Commonwealth and Pakistan origin (of whom about 1 million were in the Greater London area) and 1.2 million other persons not born in the United Kingdom (including those born in the Old Commonwealth but not those born in the Republic of Ireland). It is estimated that the population of New Commonwealth and Pakistan origin could rise to 2.5 million by 1986 and 3 million (5 per cent of the projected total population) by 1991. (b) According to the Government, some 3,500 persons entered the United Kingdom annually under the "United Kingdom ancestry rule" (see paragraph 20 above), but many of them emigrated after a few years. (c) In 1980-1983, there was an average net annual emigration from the United Kingdom of about 44,000, but the population density in 1981 - 229 persons per square kilometer or 355 persons per square kilometer for England alone - was higher than that of any other member State of the European Communities. (d) Statistics supplied by the Government showed that in Great Britain in 1981 90 per cent of all men of working age and 63 per cent of all women of working age were "economically active" (that is, either in employment, or self-employed, or unemployed). The corresponding figures for persons coming from the Indian sub-continent were 86 per cent for men and 41 per cent for women and, for persons coming from the West Indies or Guyana, 90 per cent for men and 70 per cent for women. The statistics also disclosed that a considerably higher proportion of "economically active" women (particularly married women) than men were in part-time employment only - 47 per cent of married women, compared with 2.3 per cent of men. Recent years have seen a high level of unemployment in the United Kingdom. In 1983, 15.3 per cent of "economically active" men and 8.4 per cent of "economically active" women were unemployed, as measured by official figures based on persons claiming unemployment benefit. There was a marked increase between 1980 and 1981, when the figures rose from 7.9 to 12.5 per cent and from 4.3 to 6.4 per cent, respectively. (e) The Government also produced to the Court detailed statistics in support of their claim that the overall effect of the 1980 Rules had been to lead to an annual reduction of up to 5,700 (rather than 2,000, as they had estimated before the Commission) in the number of husbands either accepted for settlement or applying successfully to come for settlement from all parts of the world. They recognised, however, that part - though not a major part - of this figure might represent a decrease attributable to economic conditions. In their submission, this reduction was of a considerable scale when viewed in relation to the figures for the total number of persons accepted for settlement into the United Kingdom. The latter figures (about one-half of which were in each year accounted for by wives and children of men already settled in the country) were: over 80,000 in 1975 and in 1976; around 70,000 in each year from 1977 to 1980; 59,100 in 1981; 53,900 in 1982; and 53,500 in 1983. The number of men accepted for settlement by reason of marriage was 11,190 in 1975; 11,060 in 1976; 5,610 in 1977; 9,330 in 1978; 9,900 in 1979; 9,160 in 1980; 6,690 in 1981; 6,070 in 1982; and 5,210 in 1983. The number of women so accepted was 19,890 in 1977; 18,950 in 1978; 19,780 in 1979; 15,430 in 1980; 16,760 in 1981; 15,490 in 1982; and 16,800 in 1983. The claimed reduction of 5,700 per annum was questioned by the applicants on the following grounds: it was based on a comparison with the figures for 1979, a year in which the number of applications from the Indian sub-continent was artificially high; in order to take account of the delays in processing applications and the twelve-month waiting-period before indefinite leave to remain would be granted, a more meaningful comparison would be between the 1981 and the 1983 figures; no account was taken of the natural decline in applications; and no account was taken of persons properly excluded (for example, on the ground that the marriage was not genuine). II.   THE PARTICULAR CIRCUMSTANCES OF THE CASE A. Mrs. Abdulaziz 39.   Mrs. Nargis Abdulaziz is permanently and lawfully resident in the United Kingdom with the right to remain indefinitely. She was born in Malawi in 1948 and brought up in that country. Her parents were also born there. According to her, she was a citizen of Malawi at birth but, being of Indian origin, was subsequently deprived of that citizenship and is now stateless. She holds a Malawian travel document. This applicant went to the United Kingdom on 23 December 1977. She was given leave, as a "non-patrial" (see paragraphs 13-15 above), to enter as a visitor, leave which was subsequently extended on three occasions. Since special vouchers had been allocated to members of her family enabling them to settle in the United Kingdom, an application was made on her behalf for indefinite leave to remain. On 16 May 1979 as an act of discretion outside the immigration rules (see paragraph 19 above), she was given such leave, essentially on the ground that she was an unmarried woman with little prospect of marriage who formed part of a close family, including her father and mother, settled in the United Kingdom. 40.   Mr. Ibramobai Abdulaziz is a Portuguese national who was born in Daman, a former Portuguese territory in India, in 1951. He emigrated to Portugal in 1978. On 4 October 1979, he was admitted, as a "non-patrial", to the United Kingdom for six months as a visitor. He met the applicant six days later and they became engaged to be married on 27 November. They were married on 8 December 1979 and, during the following week, Mrs. Abdulaziz applied for leave for her husband to remain permanently in the United Kingdom. Shortly afterwards, the Joint Council for the Welfare of Immigrants also applied for leave for him to remain, for a period of twelve months. 41.   After Mr. and Mrs. Abdulaziz had been interviewed at the Home Office on 6 June 1980, her application was refused, on 1 July, on the ground that she was not a citizen of the United Kingdom and Colonies who, or one of whose parents, had been born in the United Kingdom (paragraph 117 of the 1980 Rules; see paragraph 24 (a) (i) above). Mr. Abdulaziz appealed to an adjudicator (see paragraphs 34-36 above) against this decision but the appeal was dismissed on 6 October 1981 as he did not qualify for leave to remain under the 1980 Rules. The adjudicator pointed out that, had the application been made before 14 November 1979 or the decision taken before 1 March 1980, Mr. Abdulaziz would have been admitted, under the previous rules (see paragraphs 20 and 21 above). Leave to appeal to the Immigration Appeal Tribunal was refused by the Tribunal on 9 December 1981 on the ground that the determination of the appeal did not turn on any arguable point of law and that leave to appeal was not otherwise merited (see paragraph 37 above). 42.   Subsequently Mr. Abdulaziz remained, and still remains, in the United Kingdom, without leave. He is currently employed as a chef in a restaurant; his wife does not work. A son was born to the couple in October 1982. Representations through Members of Parliament to the Home Office have been rejected, basically on the ground that the couple could live together in Portugal and that the circumstances of the case were not such as to warrant exceptional treatment. In a letter of 24 February 1982 to one Member, the Minister of State at the Home Office indicated that the authorities would shortly be advising Mr. Abdulaziz to depart without delay, adding that if he did not, "consideration will have to be given to enforcing his departure"; however, a letter of 29 November 1982 to another Member stated that "[the Minister did] not propose for the time being to take any action regarding [Mr. Abdulaziz's] removal". In fact, the authorities have not to date instituted any criminal or deportation proceedings (see paragraph 33 above) against him; their decision, according to the Government, was taken in the light of all the circumstances, including the Commission's decision on the admissibility of Mrs. Abdulaziz's application (see paragraph 55 below). The couple's situation has not until now been changed by the 1982 or the 1983 Rules since Mrs. Abdulaziz, although settled in the United Kingdom, is not a British citizen (see paragraphs 27-32 above). She has, however, applied, on 16 August 1984, for naturalisation as such a citizen, under section 6 of the British Nationality Act 1981 (see paragraph 26 (d) above). 43.   At the Home Office interview, Mr. Abdulaziz said that his wife could not be expected to live in Portugal because s