CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 16 octobre 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The European Commission of Human Rights sitting in private on 16 October 1986, the following members being present:                      MM C.A. NØRGAARD, President                       J.A. FROWEIN                       G. JÖRUNDSSON                       S. TRECHSEL                       B. KIERNAN                       A.S. GÖZÜBÜYÜK                       A. WEITZEL                       J.C. SOYER                       H.G. SCHERMERS                       H. DANELIUS                       G. BATLINER                       H. VANDENBERGHE                   Mrs G.H. THUNE                   Sir Basil HALL                    Mr F. MARTINEZ                      Mr H.C. KRÜGER, Secretary to the Commission   Having regard to Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 22 May 1986 by L. and F.S. against the United Kingdom and registered on 25 June 1986 under file No. 12236/86;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The first applicant is a citizen of the United Kingdom, born in 1942. The second applicant, his wife, is a citizen of Ghana, born in 1959. They live together, with the first applicant's five children by a previous marriage, in London.   They are represented before the Commission by Mr J. Fraser, Member of Parliament.   The facts as submitted by the applicants, and according to certain official documents accompanying the application, may be summarised as follows:   The second applicant was arrested on 11 August 1984 as a result of police enquiries because she had overstayed a two month visitor's permit issued on 28 October 1983.   On entry she had told the immigration officer that she would be joined in the United Kingdom by her husband for a holiday and that she had two children in Ghana.   On arrest she claimed that she had subsequently received a letter from her husband saying that he was leaving her and had no intention of joining her.   She had, therefore, decided to remain in the United Kingdom to help look after the children of a friend.   On 20 August 1984 the second applicant was fined £50 for overstaying, recommended for deportation and released on a court restriction order. She apparently lodged no appeal against the recommendation.   This applicant was also arrested with a person she claimed was her boyfriend.   He was also later convicted of overstaying, recommended for deportation and actually deported.   On 4 February 1985 the Home Secretary, pursuant to Section 5 (1) of the Immigration Act 1971, issued a deportation order against the second applicant, which order was served on 12 April 1985.   There is no appeal available against the merits of such a deportation order. On 19 April 1985 solicitors requested the Home Office that the deportation order be revoked on the grounds of the applicants' marriage on 17 April.   They had apparently met in September 1984.   In March 1985 the second applicant had obtained evidence of the dissolution of her previous tribal marriage.   On 30 August 1985 the Parliamentary Under Secretary of State for the Home Office decided to maintain the deportation order against the second applicant and wrote as follows to the applicants' representative:   "(The applicants) were interviewed but, whereas they appeared to be living together as man and wife, we were not satisfied in the particular circumstances that the marriage was not entered into other than to prevent (the second applicant's) deportation and secure her stay.   She had no entitlement to remain by virtue of Section 2 (4) of the Immigration Act 1971, as amended by Section 39 (2) of the British Nationality Act 1981, and the deportation order was maintained.   The solicitors were so informed on 20 June.   I have carefully reviewed the case in the light of your representations but I am afraid that I am unable to take a different view.   The deportation order must therefore stand. (The first applicant) has indicated that he would be willing to accompany his wife if necessary and directions will accordingly now be given to the Immigration Service to effect her removal.   You suggest that (the second applicant) would have an entitlement if she were deported to obtain an entry clearance under paragraph 48 of the Immigration Rules (HC 169) to return and join her husband here. The position is that, whilst it would be open to her to apply at any time to the nearest British High Commission or Embassy abroad for the deportation order to be revoked and for an entry clearance to join her husband, paragraph 171 of the Rules provides that an order which has been in force for less than three years shall not be revoked save in the most exceptional circumstances, which do not appear to apply in her case."   In subsequent correspondence dated 10 March 1986 the Home Office stressed that any subsequent application for revocation of the deportation order would be carefully considered on the merits in the light of the circumstances at the material time, but the onus would be on the applicants to show why it would be unreasonable to expect them to make their home together abroad for the next three years or so. Their differences in language and culture would not necessarily be factors in themselves deserving exceptional treatment.   COMPLAINTS   The applicants complain that the refusal to allow the second applicant to remain in the United Kingdom in consequence of her marriage is a breach of Article 12 (art. 12) of the Convention, in that, in practice, it prevents the first applicant from exercising his right to marry and found a family.   The applicants also invoke Article 8 (art. 8) of the Convention.   They submit that it would be artificial to say that the husband is free to join his wife after deportation. He speaks no language which is current in Ghana and it would be impossible for him to pursue his present job as a bus driver.   It would also be impossible for him to find accommodation for his five children even if they were willing to transfer their family life to a different country.   THE LAW   1.       The applicants have first complained that the refusal to allow the second applicant to remain in the United Kingdom in consequence of her marriage to the first applicant is a breach of Article 12 (art. 12) of the Convention, because, in practice, it prevents the first applicant from exercising his right to marry and found a family.   Article 12 (art. 12) of the Convention provides as follows:   "Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right."   The Commission notes that in the present case the applicants have married, unhindered, under English law.   Furthermore, the right to found a family does not imply a right to remain in a particular country.   In these circumstances, the Commission finds that the refusal to allow the second applicant to remain in the United Kingdom does not disclose any interference with the applicant's rights under Article 12 (art. 12) of the Convention.   It follows that this aspect of the case is manifestly ill-founded, within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.   2.       The applicants also claim that the prospective deportation of the second applicant constitutes a breach of Article 8 (art. 8) of the Convention, the relevant part of which 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."   The Commission refers to its constant case-law that there is no right to enter, reside or remain in a particular country guaranteed, as such, by the Convention.   However, the Commission has also held that, in view of the right to respect for family life ensured by Article 8 (art. 8), the exclusion of a person from a country in which his close relatives reside may raise an issue under this provision of the Convention (see e.g. No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219).   In the present case, the Commission notes that the second applicant is to be deported for having failed to observe immigration controls and that her marriage was contracted at a time when she was aware that she was at risk with her irregular immigration status.   The first applicant had at one time stated his willingness to accompany the second applicant to Ghana if necessary.   Moreover the second applicant may not necessarily be permanently excluded from the United Kingdom because under current immigration rules she may eventually apply for revocation of the deportation order and entry clearance to join the first applicant in the United Kingdom, he being a British citizen.   In the circumstances of the present case, even though the second applicant's present deportation would constitute an interference with both applicants' right to respect for family life under Article 8 (art. 8), the Commission must attach significant weight to the reasons for this measure.   It finds with regard to the second paragraph of Article 8 (art. 8) that there are insufficient elements concerning respect for family life which could outweigh valid considerations relating to the proper enforcement of immigration controls.   In this respect the Commission would emphasise the close connection between the policy of immigration control and considerations pertaining to public order. The Commission is of the opinion, therefore, that the potential interference with the applicants' right to respect for family life is in accordance with the law (the Immigration Act 1971), and justified as being necessary in a democratic society for the "prevention of disorder" under the second paragraph of Article 8 (art. 8-2), as a legitimate measure of immigration control.   Accordingly, this part of the application must also 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   DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission            President of the Commission         (H.C. KRÜGER)                             (C.A. NØRGAARD)