CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 novembre 1990

.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. 14830/89 by Abdullah YOUSEF against the United Kingdom             The European Commission of Human Rights sitting in private on 8 November 1990, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      F. ERMACORA                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A. WEITZEL                      H.G. SCHERMERS                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 Mr.   C.L. ROZAKIS                 Mrs.   J. LIDDY                 MM.   J.C. GEUS                      A.V. ALMEIDA RIBEIRO                      M.P. PELLONPÄÄ                   Mr.   J. RAYMOND, Deputy 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 7 February 1989 by Abdullah YOUSEF against the United Kingdom and registered on 28 March 1989 under file No. 14830/89;           Having regard to:        -   reports provided for in Rule 47 of the Rules of Procedure         of the Commission;        -   the Commission's decision of 6 July 1989 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 20 December 1989 and the observations in reply         submitted by the applicant on 6 March 1990;        -   the oral hearing held on 8 November 1990;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a citizen of Kuwait, born in 1960 and now resident in Sajat, Kuwait.   He is represented before the Commission by Mr. P. Simm, Solicitor, of the Liverpool Law Centre.           The facts of the present case, as submitted by the parties, may be summarised as follows:   A.       The particular facts of the case           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.           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.           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 her and her 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.           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.           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.           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.           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, thus a renewed application for leave was abandoned.           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.           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.           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).           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 to remain to continue the relationship for the benefit of this child.   The Minister of State rejected these new elements.   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.           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.   B.       The relevant domestic law and practice           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).   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 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.   COMPLAINTS           The applicant complains that the refusal to allow him to re-enter the United Kingdom in order to facilitate his access to his eldest son, Tariq, was in breach of Article 8 of the Convention.   He further complains that he had no effective domestic remedy at his disposal, under Article 13 of the Convention, for his Article 8 claim.   (He also complained originally that his rights under Article 6 had been violated, but he has not pursued this matter in subsequent written and oral submissions.)   PROCEEDINGS BEFORE THE COMMISSION           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.           On 7 September 1990 the Commission decided to invite the parties to present their submissions orally at a hearing.   That hearing, on admissibility and merits, was held on 8 November 1990.   THE LAW           The applicant has complained that the refusal by British immigration authorities to allow him to re-enter the United Kingdom in order to facilitate access to his son, Tariq, was in breach of Articles 8 (Art. 8) and 13 (Art. 13) of the Convention.           Article 8 (Art. 8) of the Convention guarantees the right to respect for family life, subject to certain exceptions, including measures which may be necessary in a democratic society for the prevention of disorder.   Article 13 (Art.1 3) of the Convention requires that effective domestic remedies be available for Convention breaches.           The applicant claimed, inter alia, that the refusal to allow him to re-enter the United Kingdom severed the bond he had with his first child and constituted an unjustified interference with his right to respect for family life.   He also contended that no adequate remedies were available to him under United Kingdom immigration law, which does not permit the grant of leave to enter or remain in the country solely on the basis of a relationship between a parent and a child.           The Government submitted, inter alia, that the applicant had not exhausted domestic remedies and that the application was anyway manifestly ill-founded because the applicant had had only limited contact with his first child before actually leaving the United Kingdom and, according to the applicant's ex-wife, he had made no attempt to maintain contact with his son since leaving the United Kingdom, apart from one letter in March 1989.   The Government also argued that the applicant could have applied to return to the United Kingdom either as a visitor or as the fiancé of the mother of his second child.   Thus, either the refusal to allow the applicant to enter the United Kingdom did not constitute an interference with his right to respect for family or, if it did, the interference was justified for the prevention of disorder, within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention, which notion encompasses the effective enforcement of immigration controls.           The Commission has first examined whether the applicant has complied with the exhaustion of domestic remedies rule laid down in Article 26 (Art. 26) of the Convention.   It notes that United Kingdom immigration law makes no provision for the grant of leave to enter or remain in the country in order to facilitate a parent's access to his child.   The applicant's leave to remain in the United Kingdom had been based on the fact of his marriage and the continued cohabitation of the couple.   Once the marriage broke down and the couple had separated the applicant no longer had any entitlement to stay, or, once out of the country, to re-enter.   The refusal to allow him to re-enter the United Kingdom was, therefore, lawful, as was conceded by the applicant.   He, therefore, had no basis in law to challenge that decision effectively before an Adjudicator.   As regards judicial review, the Commission observes that the decision whether the applicant was to be allowed to stay in order to have access to his son fell within the prerogative discretion of the Secretary of State. However, the Secretary of State refused to allow the applicant to re-enter on a compassionate basis.   No evidence has been put before the Commission which might indicate the possibility of an effective appeal by way of judicial review against this refusal.   Accordingly, the Commission finds that the applicant has complied with the requirements of Article 26 (Art. 26) of the Convention.           The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole.   The Commission concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.           For these reasons, the Commission, by a majority,           DECLARES THE APPLICATION ADMISSIBLE.       Deputy Secretary to the Commission          President of the Commission                    (J. RAYMOND)                           (C.A. NØRGAARD)