CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 9 mai 1989

.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. 14416/88 by B., S. and K. against the United Kingdom             The European Commission of Human Rights sitting in private on 9 May 1989, the following members being present:                   MM.   J.A. FROWEIN, Acting President                      S. TRECHSEL                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A. WEITZEL                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      H. VANDENBERGHE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                 Mr.   L. LOUCAIDES                   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 11 November 1988 by B., S. and K. against the United Kingdom and registered on 1 December 1988 under file No. 14416/88;           Having regard to:        -   reports provided for in Rule 40 of the Rules of Procedure         of the Commission;       - ii -          -   the Commission's decision of 16 December 1988 to bring         the application to the notice of the respondent Government         and invite them to submit written observations on its         admissibility and merits;        -   the observations submitted by the respondent Government on         24 February 1989 and the observations in reply submitted         by the applicant on 12 April 1989;           Having deliberated;           Decides as follows: THE FACTS           The first applicant is a citizen of India, born in 1943.   He is deemed by British immigration authorities to be an illegal entrant to the United Kingdom, where he has resided since 1976.   He lives in Birmingham.   The second applicant is his widowed sister-in-law who is lawfully settled in the United Kingdom, as is the third applicant, her mentally handicapped daughter, 23 years of age.   They live at separate, but close, addresses in Birmingham.           The applicants are represented by Messrs.   Moody and Woolley, Solicitors, Derby, and Mr.   J. Friel, counsel.           The facts of the case, as submitted by the parties, may be summarised as follows.   A.       The particular circumstances of the case           According to Home Office documents, submitted by the applicants, the police and immigration officers, acting on information received, apprehended the first applicant in June 1987 when he initially stated that he had been admitted to the United Kingdom for settlement in 1972.   He later claimed that he had been admitted as a visitor in 1972 and during his few months stay had set up a market trading business selling clothes.   There is no trace whatsoever in Government records of him being admitted to the United Kingdom in 1972.           On 21 October 1976 the first applicant, accompanied by his step-daughter, was refused leave to enter the United Kingdom as "doubtful" visitors.   He was travelling under the name of Ram.   They had sought entry to attend the funeral of a nephew.   However, following the intervention of a Member of Parliament, they were given leave to enter until 8 November 1976.   The step-daughter was later deported as an overstayer on a court recommendation.   She claimed that the first applicant had returned to India three weeks after his entry, but this was not confirmed by official records.           On arrest in June 1987 the first applicant confirmed that he had never left the country and that on entering in 1976 it had been his secret intention to resume the market trading business he had established with a friend in 1972.   He was using the surname Budan. With the aid of interpretation, he had four Home Office interviews which revealed several discrepancies in his account of his activities in the United Kingdom.   He apparently said at the third interview in February 1988 that since his brother had died his only remaining family was in India and there was no reason why he should not return there.   (The first applicant denies having said this.)   The Home Office considered that the non-disclosure of his intention to work (and stay on) made the first applicant an illegal entrant and on 21 June 1987 issued a notice to him that he would be removed from the United Kingdom.   He was warned that he was liable to be detained pending removal, although his temporary admission was authorised while removal arrangements were being made.           On 20 May 1988 the first applicant's representatives were instructed by him to seek the regularisation of his immigration status on the basis that he had been a businessman in the United Kingdom for over ten years.   It was submitted on the applicant's behalf by way of a letter dated 25 August 1988 that the Home Office had an unwritten rule not to take action against an illegal immigrant or overstayer provided that the person can prove beyond doubt that he had been in the United Kingdom for ten years or more, and that it would be grossly unfair if this rule were not applied even-handedly.           On 27 October 1988 the Minister of State, Home Office, informed the applicants' Member of Parliament that the illegal entrant/removal decision was upheld with the following explanation:           "It is the normal practice to remove those persons found         to have entered the United Kingdom unlawfully, unless there         are reasons, usually of an exceptional compassionate nature,         for not doing so in a particular case.   I have reviewed         Mr.   Budan's case in the light of your representations, but         I am not persuaded that such circumstances obtain here.         Mr.   Budan's length of unlawful residence here cannot of         itself give him any entitlement to remain and, following         your representations, immigration officers visited (the         applicant's) business premises to assess his position         there.   Enquiries revealed that Mr.   Budan is the majority         share-holder of a small quilting business, having         invested approximately £15,000.   Together with his two         partners, he works in the business and they do not at         present employ anyone else.   Mr.   Budan's business         activities cannot avail him and it is evident that he         would not be able to meet the full requirements of the         (immigration) rules relating to businessmen and thereby         qualify for an entry clearance to return once removed.         His wife and five children have remained in India and         in all the circumstances of the case arrangements for         his removal to India as an illegal entrant will now         proceed."           In classifying the first applicant as an illegal entrant rather than an overstayer he is denied any right of appeal to an Adjudicator or Immigration Appeal Tribunal.           On 11 November 1988 the applicants' representatives wrote to the Secretary of State alleging, inter alia, that his immigration officers had failed to investigate the first applicant's true circumstances, concentrating merely on the first applicant's immediate family and ignoring the fact that he maintains the other two applicants.   It was stated on the applicants' behalf that the third applicant had suffered brain damage as a baby.   She is mentally and physically handicapped and can be violent with uncontrollable fits which cannot be controlled by her mother, who is a small woman with health problems of her own.   The two women are totally dependent on the first applicant, financially, physically and emotionally.   This was the first time that any compassionate circumstances had been put to the Home Office.           An application for judicial review was made on the grounds that the Minister of State reached his decision that the applicant was an illegal entrant "before the points of the case had been properly investigated and without knowledge of all the facts of the applicant's situation", that the first applicant was being given insufficient time "to put his business affairs in order or to make proper provision for his dependents" and that the removal decision "constitutes a deliberate attempt to deny the applicant the opportunity to pursue his application" to the Commission.   In support of the application for judicial review it was emphasised, inter alia, that the second and third applicants cannot go to India with the first applicant.   The applicants' solicitors averred that the compassionate circumstances of this case were put to the Home Office in October 1988 but were not taken fully into account.   The application was refused on 12 January 1989.   An appeal is pending against that refusal.           On 15 January 1989 the first and second applicants were interviewed separately at their homes with the aid of interpreters.           From these interviews the Government drew the following conclusions:           It is apparent that the first applicant does give some financial, practical and moral support to the second and third applicants, but he is not the sole mainstay nor are they totally dependent on him.   As he works 10-12 hours a day he can be of little physical assistance and he has his own immediate family in India to support.   The second applicant has two sons and three other daughters all living in the area, who visit regularly and are able to provide family support; the second applicant owns their house mortgage-free and she and her daughter receive £60 a week in State benefits.   The first applicant said that his reason for not mentioning the second and third applicants before was that he had not been asked - yet he had previously told the interviewing officer that there was no reason for him to remain in the United Kingdom.           The applicants' case was reconsidered by the Secretary of State but he maintained his decision to remove the first applicant, the applicants being informed on 16 February 1989 of the reasons for that decision in a letter to the applicants' Member of Parliament:           "In the light of your representations I have again         carefully reconsidered Mr.   Budan's case but I am not         persuaded that circumstances exist of an exceptional         compassionate nature which would make removal inappropriate.         Mr.   Budan has previously attempted to stay on the basis         of his claimed long residence and his position as a         businessman and had not, prior to November 1988, given         any indication that there were any other compassionate         circumstances.   While there is every sympathy for         Mrs.   Singh and her daughter's situation, their presence         cannot avail him and there is reason to believe that         the presence of Mr.   Budan is not such an important         determining factor in their well-being as the family         would have us believe.   Therefore arrangements will         accordingly proceed for Mr.   Budan's removal to India         as an illegal entrant."           The applicants claim to have a strong dependent relationship, the first applicant being the family mainstay.   As regards the third applicant's poor health they have submitted unchallenged medical reports which record that the third applicant is intellectually backward with a marked disability on the left side of her body so that she walks with difficulty and cannot remove her clothes.   She is grossly obese and is liable to frequent violent outbursts, with which her mother, the second applicant, who suffers from poor health herself (diabetes and hypertension), cannot cope.   A consultant psychiatrist concluded that the third applicant "is suffering from mental handicap and paranoid psychosis requiring the assistance of her uncle, without whom she would require institutional care.   The brain damage has also resulted in a moderately severe physical handicap ..."           These opinions also suggest that his sister-in-law is in need of the first applicant's care.   He visits the two women daily and gives them £25 to £30 a week, and has paid all necessary bills and household items.   The second applicant's other children do not help her.   The second and third applicants do not have adequate income from social security benefit to exist, given the extra demands created by the virtually housebound third applicant and the second applicant's own ill-health.   It is accepted that these matters relating to dependency were not put before the Home Office until a late stage, but this was allegedly due to interpretation difficulties.   B.       Relevant domestic law and practice           The Immigration Act 1971 requires non-British citizens to obtain leave before entering the United Kingdom (section 3(1)(a) 1971 Act).   It is a criminal offence to make false representations to immigration officers, who have the power to grant or refuse entry (sections 4(1) and 26(1)(c) 1971 Act).   A person is classed as an illegal entrant if he enters in breach of immigration laws not just by way of a clandestine entry but also by way of fraud or deceit (section 33(1) 1971 Act and the Khawaja case (1984) AC 74).   An illegal entrant may be removed without right of substantive appeal.   Such an appeal can only be exercised outside the United Kingdom (para. 9 Schedule 2 and section 16(1) 1971 Act).   No other appeal on the merits lies; in particular questions of compassionate circumstances cannot form the sole basis for an appeal, although the immigration appellate authorities could make recommendations on such matters following a section 16(1) appeal, which recommendations are frequently followed by the Home Secretary.           Judicial review of a decision of the Home Secretary refusing to lift removal directions may also lie if the Home Secretary left out of account relevant factors or took into account irrelevant factors or exercised his power "unreasonably".   A successful judicial review application would lead to the quashing of the refusal to lift removal directions.     COMPLAINTS           The applicants complain that the deportation of the first applicant would constitute a tragedy for the second and third applicants, who claim to be dependent on him emotionally, physically and mentally since the death of his brother in 1983.   Article 8 of the Convention, the right to respect for family life, is invoked.           The first applicant claims that he is no longer close to his own wife and children in India although he has not abandoned them and provides some financial support for them.   His truly dependent family are now his sister-in-law and niece, who live close by.         The applicants contend that if the first applicant were deported the third applicant would probably have to be placed in an institution where she would suffer a relapse.   Neither women are in a fit state of health to travel to or live in India.   Their ties are anyway with the United Kingdom.           Insofar as the first applicant is treated as an illegal entrant rather than an overstayer, who would have more rights of appeal, the applicants submit that there is also a breach of Article 14 of the Convention in the case.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 11 November 1988 and registered on 1 December 1988.   On 1 December 1988 the President of the Commission refused the applicants' request that an indication under Rule 36 of the Commission's Rules of Procedure be made to the respondent Government to stay the first applicant's removal from the United Kingdom.   That same day the Secretary to the Commission notified the respondent Government of the introduction of the application, pursuant to Rule 41 of the Rules of Procedure.           After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 16 December 1988.   It decided to give notice of the case to the respondent Government, pursuant to Rule 42 para. 2 (b) of the Rules of Procedure, and to invite them to submit written observations on admissibility and merits.   The Government submitted their observations on 24 February 1989, to which the applicants replied on 12 April 1989.           On 17 March 1989 the Commission refused a further request from the applicants for an indication under Rule 36 of the Rules of Procedure.     THE LAW   1.       The applicants complain that the removal of the first applicant to India would constitute a violation of their right to respect for family life ensured by Article 8 (Art. 8) of the Convention, the relevant part of which provides 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."           Whilst the Convention does not guarantee a right, as such, to enter or remain in a particular country, the Commission has constantly held that the exclusion of a person from a country where his close relatives reside may raise an issue under Article 8 (Art. 8) of the Convention (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).           The Government have contended that the first applicant has failed to exhaust domestic remedies either by an appeal under section 16 of the Immigration Act 1971 from outside the United Kingdom or by seeking judicial review of the latest refusal of the Home Secretary on 16 February 1989 to lift directions for removal.   The applicants contend that they have exhausted all effective domestic remedies, there being, inter alia, no basis for a further challenge by way of judicial review of the Home Secretary's decision which could not be described as unreasonable for the purposes of domestic law.           The Commission considers that it is not necessary to determine whether the applicants have complied with the requirements of Article 26 (ARt. 26) of the Convention for it finds the application anyway manifestly ill-founded for the following reasons:           In the present case the Commission's first task is to examine whether a sufficiently close link exists between the first applicant and the other two applicants, his adult sister-in-law and niece, so as to establish the kind of family life which attracts the protection of Article 8 (Art. 8) of the Convention.   The applicants claim to have established that link, a claim contested by the Government.           The Commission notes that the first applicant has a wife and five children back in India, for whom he provides financial support. He could not be said to have abandoned his direct responsibilities towards them.   His present claim to support his sister-in-law and niece has only arisen since November 1988 after it seems that all other ways of attempting to persuade the Home Secretary to change his decision to remove the first applicant as an illegal entrant had failed.   It is undisputed that the second and third applicants have major health problems.   However, they have other closer members of their family resident nearby, they have their own mortgage-free home and receive State benefits.   Whilst they may consider this assistance inadequate at the present time and the first applicant provides some help, this help is limited as he works a 10-12 hour day and does not live with them.   It cannot be excluded that greater help may be forthcoming from the immediate family of the second and third applicants if urgently needed.           In these circumstances the Commission finds that the applicants have not established sufficiently close links to enable them to claim to have suffered an interference with their right to respect for family life, ensured by Article 8 (Art. 8) of the Convention, with the first applicant's imminent removal to India, where his wife and children reside.   The Commission concludes, therefore, 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 have also complained of discrimination contrary to Article 14 (Art. 14+8) of the Convention, read in conjunction with Article 8, insofar as the first applicant has fewer appeal rights, being classified as an illegal entrant rather than an overstayer (a person who outstays a valid but temporary leave of entry).         Article 14 (Art. 14) of the Convention prohibits discrimination in the securement of Convention rights and freedoms, differences in treatment in this respect having to be objectively and reasonably based (Eur. Court H.R., Belgian Linguistic judgment of 9 February 1967, Series A no. 5, p. 34, para. 10).           The Commission considers that, in principle, it cannot be deemed to be arbitrary or unreasonable, given the State's wide discretion in matters of immigration policy, for a State to consider an illegal entry more reprehensible than overstaying and, in consequence, to limit the former's appeal rights.   As regards the facts of the present case, the Commission notes that the first applicant has not seriously contested that he could be classed as an illegal entrant.   In these circumstances the Commission finds no evidence that the first applicant has suffered discrimination contrary to Article 14 (Art. 14) of the Convention.   It therefore concludes that this aspect of the case is 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       Acting President of the Commission                   (H.C. KRÜGER)                         (J.A. FROWEIN)