CEDH · CASELAW;REPORTS;ENG — 30 juin 1992

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 14830/89                           Abdullah YOUSEF                               against                         the United Kingdom                      REPORT OF THE COMMISSION                      (adopted on 30 June 1992)   TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1 - 13). . . . . . . . . . . . . . . . . . . .1-2        A.    The application           (paras. 2 - 4). . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5 - 8). . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 9 - 13) . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 14 - 27) . . . . . . . . . . . . . . . . . . .3-6        A.    The particular circumstances of the case           (paras. 14 - 25). . . . . . . . . . . . . . . . .3-5        B.    The relevant domestic law and practice           (paras. 26 - 27). . . . . . . . . . . . . . . . .5-6   III. OPINION OF THE COMMISSION      (paras. 28 - 53) . . . . . . . . . . . . . . . . . . 7-13        A.    Complaints declared admissible           (para. 28). . . . . . . . . . . . . . . . . . . . .7        B.    Points at issue           (para. 29). . . . . . . . . . . . . . . . . . . . .7        C.    As regards Article 8 of the Convention           (paras. 30 - 44). . . . . . . . . . . . . . . . 7-11        D.    As regards Article 13 of the Convention           (paras. 45 - 51). . . . . . . . . . . . . . . .11-13        E.    Recapitulation           (paras. 52 - 53). . . . . . . . . . . . . . . . . 13   APPENDIX I   : HISTORY OF PROCEEDINGS. . . . . . . . . . . . 14   APPENDIX II : DECISION ON ADMISSIBILITY . . . . . . . . . . 15                OF THE APPLICATION   I.    INTRODUCTION   1.    The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a citizen of Kuwait, born in 1960 and resident in Sajat, Kuwait.   He was represented before the Commission by Mr. P. Simm, Solicitor, Messrs. Edwards Frais, Liverpool.   3.    The application is directed against the United Kingdom.   The respondent Government were represented by their Agent, Mr. M.C. Wood, succeeded by Mr. N. Parker and Mrs. A. Glover, all of the Foreign and Commonwealth Office.   4.    The case concerns the refusal by British immigration authorities to allow the applicant to re-enter the United Kingdom where his young son by a broken marriage lives and with whom he wished to stay in contact.   It raises issues under Articles 8 and 13 of the Convention.   B.    The proceedings   5.    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.   6.    On 7 September 1990 the Commission decided to invite the parties to present their submissions orally at a hearing.   The President of the Commission granted the applicant legal aid on 26 October 1990.   The hearing, on admissibility and merits, was held in Strasbourg on 8 November 1990.   The Government were represented by Mr. N. Parker, Agent, Mr. J. Eadie, Counsel, Mr. S. Bramley, Home Office, Adviser, and Mr. C. Miller, Home Office, Adviser.   The applicant was represented by Mr. P. Simm, Solicitor, Ms. S. Lewis Anthony, Inter Rights, Adviser, and Ms. M. O'Reilly, Adviser.   Following the hearing and deliberations the Commission declared the application admissible on the same day.   7.    On 14 December 1990 the parties were sent the text of the Commission's decision on admissibility and invited to submit such further evidence or additional observations as they wished.   No further observations were submitted by the parties.   8.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   Consultations with the parties took place between 8 February 1991 and 25 March 1992.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   9.    The present Report has been drawn up by the Commission in pursuance of Article 31 para. 1 of the Convention and after deliberations and votes in plenary session, the following members being present:             MM.   C. A. NØRGAARD, President                F. ERMACORA                E. BUSUTTIL                G. JÖRUNDSSON                A. WEITZEL                H. G. SCHERMERS           Mrs. G. H. THUNE           Sir   Basil HALL           M.    C. L. ROZAKIS           Mrs. J. LIDDY           MM.   J.-C. GEUS                M. P. PELLONPÄÄ   10.   The text of this Report was adopted on 30 June 1992 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   11.   The purpose of the Report, pursuant to Article 31 of the Convention is:        i)    to establish the facts, and        ii)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   12.   A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   13.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   14.   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.   15.   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.   16.   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 their 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.   17.   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.   18.   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.   19.   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.   20.   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 given its little prospect of success; thus a renewed application for leave was abandoned.   21.   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.   22.   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.   23.   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).   24.   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 exceptionally to remain to continue the relationship for the benefit of this child.   The Minister of State rejected these new elements on 25 January 1989.   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.   He received legal advice that an application for judicial review of the Minister's refusal to exercise his discretion, exceptionally and outside the Immigration Rules, would have little prospect of success.   25.   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.   He has, however, kept in regular contact with the mother of his second child, although he has made no application for entry clearance as her fiancé.   He states that he is experiencing difficulties renewing his passport and is therefore unable to travel.   B.    The relevant domestic law and practice   26.   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).   Other than entry as a temporary visitor or tourist, there is no provision in these Rules to authorise long-term entry and leave to remain for the purpose of exercising regular parental access rights to a child.   Such leave could only be granted outside the Rules, exceptionally and at the discretion of the Secretary of State.   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, in the circumstances of this kind of case, 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.   It would lie if the decision maker had taken account of irrelevant considerations or failed to take into account relevant considerations.   27.   Kuwaiti citizens do not need visas to enter the United Kingdom. Applying for entry clearance is therefore optional, albeit advisable. A passenger to the United Kingdom could be admitted as a visitor for up to six months.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   28.   The Commission has declared admissible the applicant's complaints that the refusal to allow him to re-enter the United Kingdom in order to facilitate his access to his son, Tariq, was in breach of Articles 8 and 13 (Art. 8, 13) of the Convention.   B.    Points at issue   29.   The following are the points at issue in the present application:   -     whether the refusal to allow the applicant to re-enter the United Kingdom was in violation of his right to respect for family life ensured by Article 8 (Art. 8) of the Convention;   -     whether the applicant has effective remedies, pursuant to Article 13 (Art. 13) of the Convention, under English law for his Article 8 (Art. 8) claim.   C.    As regards Article 8 (Art. 8) of the Convention   30.   The relevant part of Article 8 (Art. 8) of the Convention 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."        a) Interference with a right to respect for family life   31.   The applicant claims to have suffered an interference with his right to respect for family life in relation to his son, Tariq.   While he was in England it was recognised by the High Court that the two of them had a strong loving relationship.   He refers to the fact that the Prime Minister of the day, Margaret Thatcher, had publicly stressed a father's special duties towards his child notwithstanding a broken marriage.   The applicant was aware of his duties and sought to perform them by providing love and support for his son, but he had been deterred and subsequently stopped from doing so by the Secretary of State's decision to refuse him permission to re-enter the United Kingdom.   This, in his submission, constituted a clear interference with his right under Article 8 para. 1 (Art. 8-1) of the Convention.   32.   The Government refute the applicant's claim.   They submit that "family life", within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention, no longer existed between the applicant and Tariq at the relevant time, given the custody and limited access arrangements ordered by the matrimonial courts.   Furthermore, by then the applicant had established another relationship with a British woman who bore him a son.   Even if there were "family life" between the applicant and Tariq, there was no interference, given the possibility open to the applicant to visit the United Kingdom for up to six months at a time, to apply to enter as the fiancé of the other British woman or for the ex-wife and Tariq to visit the applicant in Kuwait.   33.   The Commission refers to the judgment of the European Court of Human Rights in the Berrehab case in which the Court held that from the moment of a child's birth "there exists between him and his parents a bond amounting to 'family life', even if the parents are not living together.   Subsequent events, of course may break that tie", but that is a question of fact to be determined in each case (Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A no. 138, p. 14, para. 21).   34.   As regards the facts of the present case, the Commission notes that the applicant had lived with his son for the first 18 months of the child's life and that he had tried to have regular access to him despite opposition from his ex-wife.   The matrimonial courts had recognised the strength of the affection between father and son.   In these circumstances the Commission concludes that there was "family life", within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention, between the applicant and his son at the relevant time. Thus the refusal to allow the applicant to re-enter the United Kingdom amounted to an interference with the exercise of the right to respect for family life and falls to be considered under the second paragraph of Article 8 (Art. 8-2).        b) In accordance with the law   35.   It is not disputed between the parties that the interference with the applicant's right to respect for family life was in accordance with the law, namely the Immigration Act 1971 and the Statement of Changes in Immigration Rules HC 169 as amended (para. 26 above).        c) Legitimate aim   36.   It is also not contested by the applicant that the Secretary of State's decision pursued the legitimate aim of the prevention of disorder, the effective enforcement of immigration policies under domestic law falling within this notion.   In this connection the Commission has constantly emphasised the close connection between the enforcement of immigration controls and considerations of public order (cf. eg No. 8245/78, Dec. 6.5.81, D.R. 24 p. 98, and No. 9285/81, Dec. 6.7.82, D.R. 29 p. 205).   37.   During the proceedings before the Commission in this case, reference was also made to the protection of the interests of the economic well-being of the country in the light of the applicant's unemployment and dependency on State welfare benefits.   The Government submit that this element of the case is of relevance but not of overriding importence.   The Commission would agree with the Government.   38.   Accordingly the Commission concludes that the Secretary of State's refusal to allow the applicant to re-enter the United Kingdom pursued the legitimate aim of preventing disorder and, subsidiarily, of protecting the economic interests of the country.        d) Necessary in a democratic society   39.   The key issue under Article 8 (Art. 8) of the Convention in the present case is whether it was necessary in the circumstances to refuse the applicant's re-entry into the United Kingdom.   40.   The applicant claims that the refusal was neither necessary nor proportionate to the aims described above.   He submits that to have allowed him to remain to facilitate continued access to his son would not have led to disorder.   He emphasises that he was not an alien seeking admission to the United Kingdom for the first time; he was a person who had lived lawfully there for many years, studying, working and sustaining a long relationship with the person who later became his wife and bore him Tariq.   On separation from her the applicant scrupulously nurtured his relationship with his child.   Thus the breakdown of his marriage, his relationship with another British woman, his immigration history and criminal conviction were irrelevant to the fact that he had a strong loving relationship with his son.   It is the quality of that relationship which is the determining factor, not the quantity of access which was restricted by the domestic courts because of his pending removal from the United Kingdom.   The courts' welfare reports recognised that it would have been beneficial for the child to have had continued access to his father in more normal circumstances. He considers that the possibility of entering the United Kingdom as a visitor is impractical for financial reasons and because of the unlikelihood of being granted such leave by the immigration authorities.   (He also claims to be experiencing difficulties in Kuwait renewing his passport and, therefore, of being able to travel.)   Given the acrimony between him and his ex-wife, she would probably not bring Tariq to visit the applicant in Kuwait, even if they could afford to. He contends that the circumstances of his application are comparable to that of Mr. Berrehab in whose case both the Commission and Court found a breach of Article 8 (Art. 8) of the Convention (loc. cit. p. 16 para. 29).   41.   The Government submit, having regard to their margin of appreciation in the field of immigration policy, that any interference with the applicant's right to respect for family life was necessary and proportionate to a pressing social need, namely, the maintenance of effective immigration controls.   Such controls benefit settled immigrants as well as the indigenous population and secure good relations between the different communities living in the United Kingdom.   As regards the specific facts of the present case, the Government refer to the allegations of the applicant's wife about the breakdown of the marriage (allegations denied by the applicant), the applicant's relationship with another British woman and child, the short time the applicant lived with his son, the limited access arrangements after the divorce, an unimpressive immigration history (failed examinations, unemployment), his criminal conviction,   his failure to keep in touch with his son since returning to Kuwait, (although he has kept in touch with the second British woman), and the possibility for him to return to the United Kingdom as a visitor without the need to obtain prior entry clearance.   They contend that the circumstances of the applicant's case cannot be favourably compared with those of Mr. Berrehab.   42.   The Commission considers that Article 8 (Art. 8) does not impose a general obligation on States to allow aliens to remain on their territory for the purpose of enjoying access to children of a broken marriage.   Whether a refusal to allow an alien to re-enter or remain in a particular country for this purpose is necessary will depend on the facts of the individual case.   The Commission refers to the Berrehab case, which both parties have relied on, and which concerned the expulsion of a Moroccan.   He had lived and worked without reproach since 1977 in the Netherlands and had married a Dutch citizen who bore him a daughter, Rebecca.   The marriage broke down and he was expelled from the Netherlands in 1983 when his daughter was nearly four years old.   Until then he had maintained good relations with his ex-wife, held joint guardianship of the child, saw his daughter four times a week, for several hours at a time, and contributed to her maintenance and education.   Contact was sustained after the expulsion.   (He subsequently remarried his ex-wife and returned to the Netherlands on that basis in 1985.)   The Court held as follows:        "28.   In determining whether an interference was 'necessary in      a democratic society', the Court makes allowance for the margin      of appreciation that is left to the Contracting States ...        In this connection, it accepts that the Convention does not in      principle prohibit the Contracting States from regulating the      entry and length of stay of aliens.   According to the Court's      established case-law, ... however, 'necessity' implies that the      interference corresponds to a pressing social need and, in      particular, that it is proportionate to the legitimate aim      pursued.        29.   Having to ascertain whether this latter condition was      satisfied in the instance case, the Court observes, firstly, that      its function is not to pass judgment on the Netherlands'      immigration and residence policy as such.   It has only to examine      the interferences complained of, and it must do this not solely      from the point of view of immigration and residence, but also      with regard to the applicants' mutual interest in continuing      their relations.   As the Netherlands Court of Cassation also      noted ... the legitimate aim pursued has to be weighed against      the seriousness of the interference with the applicants' right      to respect for their family life.        As to the aim pursued, it must be emphasised that the instant      case did not concern an alien seeking admission to the      Netherlands for the first time but a person who had already      lawfully lived there for several years, who had a home and a job      there, and against whom the Government did not claim to have any      complaint.   Furthermore, Mr. Berrehab already had real family      ties there - he had married a Dutch woman, and a child had been      born of the marriage.        As to the extent of the interference, it is to be noted that      there had been very close ties between Mr. Berrehab and his      daughter for several years ... and that the refusal of an      independent residence permit and the ensuing expulsion threatened      to break those ties.   That effect of the interferences in issue      was the more serious as Rebecca needed to remain in contact with      her father, seeing especially that she was very young.        Having regard to these particular circumstances, the Court      considers that a proper balance was not achieved between the      interests involved and that there was therefore a disproportion      between the means employed and the legitimate aim pursued.   That      being so, the Court cannot consider the disputed measures as      being necessary in a democratic society.   It thus concludes that      there was a violation of Article 8 (Art. 8)."   43.   Taking into account the Government's margin of appreciation in this field, the Commission considers that the facts of the present case do not compare favourably with those of Mr. Berrehab.   The Commission finds that the applicant had a weaker relationship with his son Tariq than Mr. Berrehab had with his daughter, Rebecca, because of the applicant's preoccupation with the second British woman.   This is reflected in the fact that the applicant has not kept in touch with Tariq but has maintained contact with this lady.   The Commission notes that the applicant was unemployed, reliant on state benefits and was unable to make any contribution to his son's maintenance and education. It also notes his minor criminal conviction.   Mr. Berrehab, in contrast, was employed, paid maintenance for his daughter, contributed to her education and his conduct was irreproachable.   The applicant did not have custody of Tariq and was awarded limited access of a visit per week, whereas Mr. Berrehab had joint guardianship of Rebecca with his wife and he saw her four times a week.   In these circumstances the Commission is satisfied that the Secretary of State's decision refusing the applicant re-entry into the United Kingdom was not disproportionate to the legitimate aims of preventing disorder, through the enforcement of immigration controls, and the protection of the economic interests of the country.   In the Commission's opinion, this decision can therefore be considered as necessary under Article 8 para. 2 (Art. 8-2) of the Convention.        Conclusion   44.   The Commission concludes, by a unanimous vote, that there has been no violation of Article 8 (Art. 8) of the Convention.   D.    As regards Article 13 (Art. 13) of the Convention   45.   Article 13 (Art. 13) of the Convention provides as follows:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."   46.   The applicant complains that he had no effective domestic remedy, contrary to Article 13 (Art. 13) of the Convention, to test his substantive Article 8 (Art. 8) claim.   He submits that his case fell outside the Immigration Rules and his immigration status was a matter for the pure discretion of the Secretary of State.   A refusal by the Secretary of State to exercise that discretion in the applicant's favour attached no right of appeal and no possibility of judicial review.   47.   The Government contend that the applicant has no arguable claim under Article 8 (Art. 8) of the Convention which would require an effective domestic remedy.   Even if the applicant's Article 8 (Art. 8) complaint were arguable, they submit that the applicant had effective domestic remedies by way of judicial review before the High Court, or an appeal to an Adjudicator, who could make a recommendation.   48.   The Commission refers to the constant case-law of the European Court of Human Rights that "Article 13 (Art. 13) of the Convention cannot reasonably be interpreted so as to require a remedy in domestic law of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention" (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 24, para. 52).   In view of the Commission's considerations regarding the applicant's complaint under Article 8 (Art. 8) of the Convention (paras. 30-44   above), that complaint cannot be regarded as unarguable on its merits.   The Commission must therefore proceed to examine whether the applicant had at his disposal effective domestic remedies within the meaning of Article 13 (Art. 13) of the Convention.   49.   The Commission notes that the Immigration Act 1971 and the Statement of Changes in Immigration Rules HC 169, as amended, make no provision for entry to be granted to an alien after divorce wishing to exercise effective access to his child who is entitled to live in the United Kingdom.   Only a request to the Secretary of State for compassionate leave to re-enter outside the Immigration Rules could be made.   This the applicant tried and failed.   The Government suggest that the applicant could have appealed from outside the United Kingdom to an Adjudicator who could have made a recommendation that the Secretary of State exercise his discretion in the applicant's favour, outside the Immigration Rules, and that such a recommendation would receive serious consideration from the Secretary of State who might follow it.   However the Commission observes that the role of the immigration appellate authorities is to ensure observance of the Immigration Rules and that such a recommendation would be a matter of discretion for the Adjudicator.   It considers that the possible exercise of an Adjudicator's discretion, to be followed by the possible exercise of the Secretary of State's discretion, does not offer sufficient guarantees of efficacy which might satisfy the requirements of Article 13 (Art. 13) of the Convention.   50.   The Government also suggest that the applicant could have sought judicial review of the Secretary of State's refusal to exercise his discretion outside the Immigration Rules in the applicant's favour. However, the Government have not been able to indicate any domestic legal precedents showing that such a remedy against the exercise of a Minister's discretion, which is based on prerogative rather than statute, would have had any prospect of success.   In the circumstances the Commission is not persuaded that the immigration appellate authorities or the High Court with judicial review could provide, either individually or as an aggregate, a remedy satisfying Article 13 (Art. 13) of the Convention.        Conclusion   51.   The Commission concludes, by a unanimous vote, that there has been a violation of Article 13 (Art. 13) of the Convention in that the applicant did not have any effective domestic remedy available to him in respect of his claim under Article 8 (Art. 8) of the Convention.   E.    Recapitulation   52.   The Commission concludes, by a unanimous vote, that there has been no violation of Article 8 (Art. 8) of the Convention (para. 44 above).   53.   The Commission concludes, by a unanimous vote, that there has been a violation of Article 13 (Art. 13) of the Convention in that the applicant did not have any effective domestic remedy available to him in respect of his claim under Article 8 (Art. 8) of the Convention (para. 51 above).   Secretary to the Commission             President of the Commission        (H.C. KRÜGER)                            (C.A. NØRGAARD)                             APPENDIX I                       HISTORY OF PROCEEDINGS   Date                           Item _________________________________________________________________   07.02.89                       Introduction of application   28.03.89                       Registration of application   Examination of Admissibility   06.07.89                       Commission's decision to give                               notice of application to respondent                               Government and to invite parties to                               submit written observations on                               admissibility and merits   20.12.89                       Government's observations   06.03.90                       Applicant's observations   07.09.90                       Commission's decision to hold a                               hearing   08.11.90                       Hearing on admissibility and merits,                               the parties being represented as                               follows:                                 Government :                                 Mr. N. Parker, Agent                               Mr. J. Eadie, Counsel                               Mr. S. Bramley, Home Office, Adviser                               Mr. C. Miller, Home Office, Adviser                                 Applicant :                                 Mr. P. Simm, Solicitor                               Ms. S. Lewis Anthony, Inter Rights,                                                   Adviser                               Ms. M. O'Reilly, Adviser   08.11.90                       Commission's decision to declare                               application admissible   Examination of the Merits   14.12.90                       Parties invited to submit whatever                               further information or observations                               they wished   02.03.91                  &#xa