CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 juillet 1987

.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 }  AS TO THE ADMISSIBILITY OF   Application No. 12392/86 by M.A. against the United Kingdom             The European Commission of Human Rights sitting in private on   the 13 July 1987, the following members being present:                      MM. C.A. NØRGAARD, President                         J.A. FROWEIN                         S. TRECHSEL                         F. ERMACORA                         E. BUSUTTIL                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                    Mrs.   G.H. THUNE                    Sir   Basil HALL                    MM.   F. MARTINEZ                         C.L. ROZAKIS                    Mrs.   J. LIDDY                      Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 23 June 1986 by M.A. against the United Kingdom and registered on 15 September 1986 under file No. 12392/86.           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 applicant is a citizen of the United Kingdom, born in 1964 and resident in F., England.   She is a housewife by profession.   The applicant is represented before the Commission by Messrs.   Mayne Lidgey, Solicitors, London.           The facts as submitted by the applicant, and which are apparent from official documentation lodged with the application, may be summarised as follows:           On 2 September 1985 the applicant married an Egyptian citizen who at that stage was already in breach of immigration regulations, having unlawfully overstayed.   On 5 September 1985 her husband applied for leave to remain in the United Kingdom on the basis of the marriage.   On 30 January 1986 that leave was refused as the Secretary of State was "not satisfied that the marriage was not entered into primarily to obtain settlement" in the United Kingdom, and furthermore, as the husband had remained in breach of the Immigration Rules.           Representations were made to the Secretary of State through the applicant's Member of Parliament.   In a letter dated 5 June 1986 the Secretary of State replied to the Member of Parliament as follows:           "As you are probably aware, under the Immigration Rules an         extension of stay or leave to remain will not be granted to         a man admitted in a temporary capacity who marries a woman         settled here unless the Secretary of State is satisfied,         amongst other things, that the marriage is not entered into         primarily to obtain settlement here and that the applicant         has not remained in breach of the immigration laws. (1)           Mr.   Abdel-Aziz has a very poor immigration history having         illegally overstayed for more than two years and having         worked in breach of his landing conditions.   He has admitted         that he does not wish to do his military service in Egypt and         would instead like to settle here.   He entered into marriage         a few weeks after being convicted of overstaying and in the         sure knowledge that he had no further basis of stay in this         country.           As you know, Mr.   Abdel-Aziz's application was refused on         30 January.   Nevertheless, I have very carefully reviewed         our decision in the light of your representations and with         reference to the report of Mr. and Mrs.   Abdel-Aziz's         interview with the Immigration Service, but I am afraid that         I can see no grounds for reversing it.   As further explained         on the notice of refusal, Mr.   Abdel-Aziz has no right of         appeal under the Immigration Act 1971 against our decision         because the application was made after his leave to remain         had expired." ______________   (1)      Paragraph 124 of the Statement of Changes in Immigration Rules HC 503 (amending HC 169) provides that a person with limited leave seeking an extension of stay on the basis of a marriage to a person settled in the United Kingdom will not be granted that leave unless the Secretary of State is satisfied, inter alia, that the marriage was not entered into primarily to obtain settlement and that the applicant has not remained in breach of the immigration laws.           The deportation order was not enforced immediately thereafter because the applicant was pregnant.   A son was born to the couple on 20 May 1986.           The applicant has not informed the Commission of any further developments in her family's situation since then.     COMPLAINTS           The applicant complains that the refusal to allow her husband to remain in the United Kingdom denies her right to respect for family life and constitutes sexual discrimination contrary to Articles 8 and 14 of the Convention.   THE LAW   1.       The applicant has complained of the refusal by British immigration authorities to allow her Egyptian husband to remain in the United Kingdom with her.   She has invoked Articles 8 and 14 (Art. 8, 14) of the Convention, the relevant parts of which provide as follows:           Article 8 (Art. 8)           "1.      Everyone has the right to respect for ...         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 ... for the prevention of disorder or crime ... "           Article 14 (Art. 14)           "The enjoyment of the rights and freedoms set forth in this         Convention shall be secured without discrimination on any         ground such as sex, race, ... national or social origin,         ... or   other status."   2.       The Commission recalls its constant case-law that whilst the Convention does not guarantee a right, as such, to enter or remain in a particular country, when a person is excluded from a country where his close relatives are entitled to reside an issue may arise under Article 8 (Art. 8) of the Convention (cf. e.g.   No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219, No. 9088/80, Dec. 6.3.82, D.R. 28 p. 160 and No. 9285/81, Dec. 6.7.82, D.R. 29 p. 205).           In the present case the Commission notes that the applicant's husband has illegally overstayed in the United Kingdom.   His marriage to the applicant was contracted at a time when he must have been aware of his precarious immigration status.   There do not appear to be insurmountable obstacles to the applicant and her son following her husband to Egypt.   The applicant has not contested the lawfulness of the immigration authorities' refusal to allow her husband to remain in the United Kingdom, which refusal was taken to enforce immigration controls pursuant to the Statement of Changes in Immigration Rules HC 503.           Thus, in the circumstances of the present case, the Commission finds that the refusal of the husband's leave to remain constitutes an interference with the applicant's right to respect for family life under Article 8 para. 1 (Art. 8-1) of the Convention.   Nevertheless, the Commission must attach significant weight to the reasons for the refusal.   The Commission finds with regard to the second paragraph of Article 8 (Art. 8) that there are no elements concerning respect for family life which might 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 interference with the applicant's right to respect for family life was in accordance with the law and justified as being necessary in a democratic society "for the prevention of disorder", under the second paragraph of Article 8 (Art. 8), as a legitimate measure of immigration control.           Accordingly, this aspect of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       Finally, as regards the applicant's complaint of discrimination in the securement of her family life rights, the Commission finds the applicant's claim wholly unsubstantiated, particularly in the light of the text of paragraph 124 of the Statement of Changes in Immigration Rules HC 503 (p. 2 above), which makes no sexual or other distinction between persons with limited leave seeking an extension of stay on the basis of a marriage to a person settled in the United Kingdom.           This part of the application is, therefore, also 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)