CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 juillet 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 }                            AS TO THE ADMISSIBILITY OF                         Application No. 19153/91                       by H.M. and J.M.                       against the United Kingdom           The European Commission of Human Rights sitting in private on 1 July 1992, the following members being present:                MM.   F. ERMACORA, Acting President of the First Chamber                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK              Sir   Basil HALL              Mr.   C.L. ROZAKIS              Mrs. J. LIDDY              MM.   M. PELLONPÄÄ                   B. MARXER                Mr.   M. de SALVIA, Secretary to the First Chamber           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 June 1991 by H.M. and J.M. against the United Kingdom and registered on 2 December 1991 under file No. 19153/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicants are father and son.   The first applicant was born in 1932 in Bangladesh, but now lives in the United Kingdom as a British citizen.   The second applicant was born in 1961 in Bangladesh.   They are represented before the Commission by Mr. M. Quayum, a legal adviser with the Camden Community Law Centre.         The facts of the present case, as submitted by the applicants' representative and which may be deduced from documents lodged with the application, may be summarised as follows:         The first applicant married a Bangladeshi in 1954 and four children were born to the couple.   The first of these children is the second applicant.   In 1963 the first applicant entered the United Kingdom as the holder of an employment voucher.   By 1 January 1973 he was settled in the United Kingdom as a Commonwealth citizen.   He became a British citizen in 1989.         In 1977 the wife applied, along with the surviving children, for entry clearance into the United Kingdom.   Before that application had been considered, she died.   The first applicant re-married four months later in Bangladesh.   His second wife applied for entry clearance along with the children of the first marriage.   These applications were refused in 1979 on the grounds that the applicants were not believed to be related as claimed.   Appeals were lodged in London in 1981, the Adjudicator dismissing those of the children, but allowing that of the second wife.         Shortly after she had been granted entry clearance, she died. Three months later the first applicant re-married, and his third wife applied for entry clearance together with the children again.   Although referred to as "children", the second applicant by this time was 21 years of age.   After a further interview with an Entry Clearance Officer, on 14 March 1985, the wife's application was granted but not those of the children, again because the Officer did not believe that the applicants were related as claimed.   The second applicant appealed to the Adjudicator without success.   The Adjudicator found that the second applicant was age barred from entry.   The Immigration Rules only allowed dependent, unmarried children, under the age of 18, to join their parents in the United Kingdom.   He then appealed to the Immigration Appeal Tribunal, which referred the case back to another Adjudicator.   The second Adjudicator was invited to consider and declare upon the question whether the second applicant was the son of the first, although it was accepted that the appeal could not succeed because of the age bar.   On 17 February 1989, this Adjudicator also held that the claimed family relationship between the applicants had not been established.         In July 1989 it became possible to conclude from a DNA blood analysis that the first and second applicants were related as claimed. Leave to appeal against the refusal to grant entry in 1985 was not granted by the Immigration Appeal Tribunal (23 August 1989), but the Tribunal said that it expected the Secretary of State to review the case and consider whether the second applicant should be admitted exceptionally outside of the Immigration Rules in the light of the DNA evidence.           In June 1989 a Statement was delivered in Parliament by the Secretary of State regarding those people who had been refused entry clearance as children, because there had been no satisfactory evidence as to the claimed family relationship, but who had subsequently been able to prove the family link by DNA blood testing.   He made it clear that the Immigration Rules only envisaged the entry of children and dependents and that, as the earlier decisions had been taken in good faith, a person over the age of 18 re-applying for entry to the United Kingdom to join a family on the basis of new DNA evidence would only be admitted in the following circumstances :         "a.   that he was refused entry clearance as a child on       relationship grounds;         b.    that DNA evidence establishes that he was, after all,       related as claimed;         c.    that he is still wholly or mainly dependent on his sponsor       in the United Kingdom; and         d.    that there are compassionate circumstances in his case."         In September 1989 representations were made on behalf of the second applicant, asking the Secretary of State to exercise his discretion and to permit the second applicant to enter the United Kingdom.   In a letter dated 13 November 1990 the Secretary of State declined to exercise his discretion on the grounds that the second applicant was no longer dependent on the first applicant and that he had a satisfactory family life in Bangladesh.   The Secretary of State explained his decision as follows :         "The Secretary of State notes that <the second applicant> is now       29 years old.   He lives in the same village as his paternal       grandfather, two paternal uncles and their families and the       family of a deceased paternal uncle, some of whom live with (the       second applicant) on the family compound.         When interviewed by the entry clearance officer, Dhaka, in       January 1990, <the second applicant> said that the family jointly       owned 3 1/2 hals of land (about 14 acres) as well as buffaloes,       oxen and cows; that the land produced enough for the family's       needs; and that he did not receive any remittances from the       sponsor, <the first applicant>.         <The second applicant> then claimed that he did not receive any       food from the family because they did not like him; and that he       was forced to beg for food.   He made no reply when the entry       clearance officer put it to him that this story was not credible.       When the entry clearance officer further observed that <the       second applicant> was well-dressed and wore a gold watch, <the       second applicant> claimed that he had borrowed these things.       When the entry clearance officer asked whether, as the eldest       son, he stood to inherit the land, <the second applicant> first       confirmed that he would inherit the land and then said that he       would not get anything because the family did not like him.           In view of these discrepancies, it is relevant that the sponsor       <the first applicant> gave evidence to an Adjudicator in February       1989 that <the second applicant> lived in a room in his       grandfather's house and worked in the fields; he made no mention       of a family dispute.         Having carefully considered this case, the Secretary of State       takes the view that <the second applicant> has settled into       independent adult life and is not wholly or mainly dependent on       <the first applicant>, who is 58 years old and at the time of the       hearing in 1989 was himself in receipt of income support.       Furthermore, the Secretary of State is not satisfied that any       genuine dispute exists between <the second applicant> and other       members of his family in Bangladesh, and is not aware of any       compassionate circumstances which distinguish this case from       others involving average applicants."         Leave for judicial review of the Secretary of State's decision was refused by the High Court on 13 February 1991.   An application was renewed to the Court of Appeal, and leave was again refused on 22 May 1991.   Before the Court of Appeal the first applicant had argued that, considering the age and relationship of the applicants at the time of the first request to enter the United Kingdom when the first applicant was a child, he had a vested right of entry, by virtue of section 2 of the Commonwealth Citizens Act 1962, which could not be denied him or qualified by any lapse of time, or by the erroneous decision of the United Kingdom Entrance Clearance Officer.   The Court of Appeal rejected this argument, noting that section 2 of the 1962 Act afforded a general discretion to withhold admission, qualified by a duty to permit admission of a limited category of people on condition that they are able to satisfy the immigration officer that the requisite criteria have been met.   At the relevant time, the second applicant had not been able to do that.   It was also submitted before the Court of Appeal that the Secretary of State ought to have exercised his discretion in favour of allowing the second applicant to enter.   The Court declined to exercise their right of limited review of executive actions.   Lord Justice Mustill stated, "I find it impossible to say that the court could properly in the exercise of its very limited functions of judicial review intervene to say that the policy stated and explained by the Secretary of State is so wrong in principle it could not reasonably have been taken."     COMPLAINTS         The applicants contend that Articles 6, 8, 13 and 14 of the Convention have been violated.         As regards Article 6 of the Convention, the applicants state that the appellate and judicial procedures have manifestly failed to offer any redress.   They state that the practice of the Adjudicators to proceed in the absence of the appellant, together with the very long delays in these procedures, violate Article 6.           As regards Article 8 of the Convention, the applicants submit that their right to respect for family and private life has been violated, contrary to paragraph 1 of that Article, with none of the exceptions of paragraph 2 applying.         The applicants contend that there is an existing and effective family life because, although the second applicant is an adult son, he is dependent upon his father, both for emotional and financial support. In an Affidavit, the first applicant states that he and his son are in regular correspondence and that he sends on average £25 a month to his son.   The applicants note that had it not been for the wrong decision of the United Kingdom Entrance Clearance Officer in 1979, they would be enjoying a full family life.   They further contend that the maintenance of a refusal to admit the second applicant could not be said to be in pursuance of a legitimate aim such as the "prevention of ... disorder" or the "economic well-being of the country", given that the original decision was based on a manifest error of fact for which the domestic law contains no effective remedy.         As regards Article 13 of the Convention, the applicants point out that no consideration of the merits of the issue was entertained by the domestic courts on the application for judicial review.   It is alleged that the injustice done to them cannot be rectified by a domestic authority other than by the favourable exercise of the Secretary of State's discretion, which was refused.         As regards Article 14 of the Convention, taken together with Article 8, the applicants contend that the measures enacted and the procedures which have brought about this violation have been adopted only in respect of certain nationalities.     THE LAW   1.     The applicants complain that the entry clearance proceedings before the immigration appellate authorities violated Article 6 (Art. 6) of the Convention.   Article 6 para. 1 (Art. 6-1) of the Convention guarantees to everyone the right, inter alia, to a fair hearing within a reasonable time in the determination of his civil rights and obligations or of any criminal charge against him.         However, the Commission has consistently held that proceedings of the kind about which complaint is made in the present case determine neither civil rights and obligations nor a criminal charge as they involve the purely discretionary administrative matter of whether to allow someone to enter or stay in a particular country.   Article 6 para. 1 (Art. 6-1) of the Convention is therefore not applicable to such proceedings (cf. e.g. mutatis mutandis No. 9285/81, Dec. 6.7.82, D.R. 29 p. 205; No. 13162/87, Dec. 9.11.87, D.R. 54 p. 211). Accordingly the Commission must reject this aspect of the application as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 27 para. 2 (Art. 27-2).     2.     The applicants next complain that the refusal of entry clearance for the second applicant was in breach of Article 8 (Art. 8) of the Convention, paragraph 1 of which guarantees, inter alia, the right to respect for family life.   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 this provision (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).         However, in examining cases of the present kind the Commission's first task is to consider whether a sufficient link exists between the relatives concerned as to give rise to the protection of Article 8 (Art. 8) of the Convention (cf. No. 9492/81, Dec. 14.7.82, D.R. 30 p. 232).   Generally, the protection of family life under Article 8 (Art. 8) involves cohabiting dependents, such as parents and their dependent, minor children.   Whether it extends to other relationships depends on the circumstances of the particular case.   Relationships between adults, a father and his 31 year old son in the present case, would not necessarily attract the protection of Article 8 (Art. 8) of the Convention without evidence of further elements of dependency, involving more than the normal, emotional ties (No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).         The Commission understands the applicants' frustration arising from the initial refusal in 1979 to grant entry clearance before their relationship could be proved by DNA blood testing.   If they had been able to prove their relationship earlier the second applicant would have been likely to have been granted entry to the United Kingdom. However, no allegation of bad faith on the part of the immigration authorities has been made by the applicants.   In this connection the Commission recalls its constant case-law that such verification procedures, as existed in the United Kingdom in 1979 and which gave immigrants a fair opportunity to present their family life claims, satisfied the requirements of Article 8 (Art. 8) of the Convention (No. 8378/78, Kamal v. the United Kingdom, Dec. 14.5.80, D.R. 20 p. 168). The Commission considers therefore that its examination of the case under Article 8 (Art. 8) of the Convention must be limited to the applicants' present day circumstances and the nature of their relationship now.         As regards the facts of the present case, the Commission notes that the second applicant has strong ties with Bangladesh, where he has lived all his life.   He seems to be a fully integrated member of his grandfather's household and his grandfather has a farm which provides enough for the whole family's needs.   The first applicant's claim that the second applicant is financially dependent on him has not been substantiated.   In these circumstances the Commission finds that it has not been shown that there exists a sufficiently close link between the applicants which could be deemed to require the protection afforded by Article 8 (Art. 8) to family life.   It concludes therefore that the present case does not disclose any appearance of a breach of the right to respect for family life, within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.   Accordingly this part of the application in this respect must be rejected as being manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.     3.     The applicants also complain that they are victims of discrimination on grounds of national origin, Article 14 (Art. 14) of the Convention prohibiting any form of discrimination in the securement of Convention rights, such as the right to respect for family life under Article 8 (Art. 8).   However, the Commission finds no evidence in the case-file which might substantiate the applicants' claim.   This aspect of the case is, therefore, also manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     Finally, the applicants complain that they did not have any effective remedy for their Convention claims.   Article 13 (Art. 13) of the Convention guarantees effective domestic remedies to everyone whose Convention rights and freedoms have been violated.         However, according to established case-law, "Article 13 (Art. 13) cannot reasonably be interpreted so as to require a remedy in domestic law in respect 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. 23, para. 52).   In the light of the above conclusions that the applicants' complaints under Articles 6, 8 and 14 (Art. 6, 8, 14) of the Convention are clearly inadmissible, the Commission finds that the applicants do not have an arguable claim of a breach of these provisions which would require a remedy under Article 13 (Art. 13) of the Convention.   The Commission concludes, therefore, that 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 unanimously         DECLARES THE APPLICATION INADMISSIBLE.             Secretary to the                  Acting President of the         First Chamber                        First Chamber               (M. de SALVIA)                          (F. ERMACORA)