CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 octobre 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. 16243/90                       by Kuntibai Suka GORANIYA                       against the United Kingdom           The European Commission of Human Rights sitting in private on 12 October 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                    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 26 May 1989 by Kuntibai Suka GORANIYA against the United Kingdom and registered on 6 March 1990 under file No. 16243/90 ;         Having regard to :   -      reports provided for in Rule 47 of the Rules of Procedure of the       Commission ;   -      the observations submitted by the respondent Government on       5 September 1990 and the observations in reply submitted by the       applicant on 16 October and 2 November 1990 ;         -      the information provided by the applicant on 10 January 1991 ;   -      the information provided by the Government on 25 November 1991 ;   -      the information provided by the applicant on 6 April 1992 ;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a naturalised British citizen.   She was born in India in 1957 and went to the United Kingdom with her family in 1983. She was granted indefinite leave to remain in 1985 and became a naturalised British citizen on 14 December 1989.   She lives in Leicester and is represented before the Commission by Messrs. Singh & Ruparell, Solicitors, London.         The facts of the present case, as submitted by the parties, may be summarised as follows.   A.     The particular circumstances of the case         The application arises over the original refusal by British immigration authorities to allow the applicant's Indian husband to join her in the United Kingdom as the husband was deemed to have contracted the marriage for the primary purpose of emigrating to the United Kingdom.         The background to the marriage, contracted on 15 February 1985, is that the applicant first met her husband in India in 1980 and they kept in touch regularly for a few months until Mr. Goraniya left for Dubai in 1981.   They did not see or write to each other, although the applicant wrote a two line letter to her sister in 1984 asking her to invite Mr. Goraniya to visit her in the United Kingdom, but he did not reply.         The applicant's husband is an Indian national born in 1958. He applied for a three month entry clearance to the United Kingdom as a visitor in May 1984, ostensibly to visit his "uncle" who was in fact the applicant's father.   This application was refused in September 1984.   He had failed to substantiate his claims that he had had an invitation to visit the "uncle", who he had only met once.   He had also failed to satisfy the immigration authorities how he came to be able to finance such a trip to England or whether he would be returning to Dubai to work as a mason.   He had told the immigration officer that his whole family lived in India and that he had no marriage plans.   The immigration officer concluded that the man was not genuinely seeking entry as a visitor who was intending to leave the United Kingdom after the three month period. (The applicant's husband appealed against the decision but the appeal was withdrawn in December 1985.)         Mr. Goraniya apparently arrived in the United Kingdom on 9 January 1985 and requested entry clearance as a visitor again.   This was refused but he was granted temporary admission following representations from a Member of Parliament.   Later in the month he made his way without prior arrangement to the applicant's house.   They did not take to each other on that occasion.   However, they met again three weeks later when Mr. Goraniya proposed to her, and they married shortly afterwards at a civil ceremony on 15 February 1985.   They then lived together for three weeks from 15 February until 8 March 1985, when the husband voluntarily returned to Dubai.   Mr. Goraniya did not apply for entry clearance to join his wife until July 1986, more than a year later, and he did not attend two appointments for interview in connection with that application before he was finally interviewed in September 1986, 18 months after he had left the United Kingdom. Before appeal instances it was said that the delay in attending the interview was because the husband had had passport difficulties. Subsequently it was submitted to the Commission that the husband had not received the letters notifying him of the interview appointments.         The Secretary of State formed the impression that the husband had no great eagerness to join the applicant, although the couple apparently corresponded regularly.   The Secretary of State also noted the applicant's statement that she would not leave the United Kingdom to live with her husband because of her parents and other relatives settled in the United Kingdom.   He took into account the fact that the husband was a low paid manual worker and that the situation in Dubai was not altogether stable; by contrast, the applicant was a house owner with a stable job as a sewing machine supervisor.   The Secretary of State concluded, therefore, that the marriage had been contracted for the primary purpose of gaining the husband's admission to the United Kingdom.   This is a ground for exclusion under the Statement of Changes in Immigration Rules HC 169, paragraph 46(a).         The refusal of entry clearance was upheld by an Adjudicator on 21 October 1988.   He was not convinced that the couple had had genuine contacts prior to the marriage, which he noted had only been a civil not a Hindu religious ceremony.   The credibility of the testimony of the applicant's husband was impaired by the fact that he had not announced to the immigration authorities when he entered in January 1985 that he planned to marry the applicant.   Moreover he had not supported the applicant financially since the marriage, whereas the applicant was a "very good catch" for him both financially and by virtue of her British nationality.   Whilst not impugning the applicant's motives for the marriage, the Adjudicator was not convinced that the husband's motives were not to obtain entry to the United Kingdom.   The Adjudicator's decision was confirmed by an Immigration Appeal Tribunal on 7 March 1989.         The applicant visited her husband in Dubai.   A child was born to the couple in the United Kingdom on 7 November 1989.   The husband returned to India in December 1989 on the death of his mother and stayed there in view of the ensuing Middle East crisis.   He again applied for a one month entry clearance to the United Kingdom as a visitor.   However, he failed to disclose in his application form his three previous unsuccessful applications for entry.   The Entry Clearance Officer deemed this to be a deliberate deceit.   He therefore concluded on 13 December 1990 that it was not Mr. Goraniya's intention merely to enter the United Kingdom as a visitor and admission was refused.   The husband stated that the whole interview with the Entry Clearance Officer was hostile towards him and he denied refusing to disclose information when he knew that the Entry Clearance Officer already had a complete file on him.         The applicant informed the Commission in April 1992 that she was expecting another baby.         On 8 July 1992 the Government informed the Commission that they had decided to authorise the issue of entry clearance to the applicant's husband.   B.     The relevant domestic law and practice         By section 3(1)(a) of the Immigration Act 1971,         "Except as otherwise provided by or under this Act,       where a person is not a British citizen -              (a) he shall not enter the United Kingdom unless given            leave to do so in accordance with this Act."         Under section 3(2) of the 1971 Act, the Secretary of State has a duty to lay before Parliament statements of the rules laid down by him as to the practice to be followed in the administration of that Act for regulating the entry into and stay in the United Kingdom of persons required to have leave to enter.         The relevant rule at the date of Mr. Goraniya's application to enter the United Kingdom, which is the subject of this application, was paragraph 46 of the Rules set out in House of Commons paper 169, as amended by HC 503, which read as follows:         "Spouses         46.   A passenger seeking admission to the United Kingdom as the       spouse of a person who is present and settled in the UK, or who       is on the same occasion being admitted for settlement, must hold       a current entry clearance granted for that purpose.   An entry       clearance will be refused unless the entry clearance officer is       satisfied:              (a)   that the marriage was not entered into primarily to            obtain admission to the UK; and              (b)   that each of the parties has the intention of living            permanently   with the other as his or her spouse; and              (c)   that the parties to the marriage have met; and              (d)   that there will be adequate accommodation for the            parties and their dependents without recourse to public            funds in accommodation of their own or which they occupy            themselves; and              (e)   that the parties will be able to maintain themselves            and their dependents adequately without recourse to public            funds."         An earlier equivalent of this paragraph was interpreted in the case of Immigration Appeal Tribunal v. Hoque and Singh [1988] Imm. AR 216.   That interpretation may be said to be applicable to the present rule and may be summarised as follows:         (a)   under this paragraph, the onus falls on the applicant to       satisfy the entry clearance officer on the balance of       probabilities that, at the time when the marriage took place, his       primary purpose was not to obtain admission to the United Kingdom       and that the other requirements of the rule are duly satisfied;         (b)   in considering the application the entry clearance officer       is not limited to such evidence as the applicant may put before       him, but is entitled to make enquiries of his own and test such       evidence as the applicant chooses to put forward;         (c)   in considering the application it is the intention of the       applicant which is the central consideration.   However, in       assessing the purposes of the marriage, the intentions of both       parties will be relevant;           (d)   the mere fact that an applicant can satisfy the requirement       of paragraph 46(b) does not by itself enable him to satisfy the       requirement of paragraph 46(a).   Nevertheless, it must be borne       in mind that paragraph 46(a) is looking at the intention of the       parties at the time when the marriage was entered into;         (e)   however, paragraphs (b) and (c) spell out matters which       will in any event be relevant to the proper consideration of       paragraph (a).   To that extent an applicant who satisfies the       entry clearance officer of the requirements of (b) and (c) is       better placed to satisfy him of (a).   Evidence of intervening       devotion of the parties may make it easier to satisfy the entry       clearance officer that the parties' primary purpose in entering       into the marriage was not the extraneous purpose at which       sub-paragraph (a) is aimed;         (f)   the very fact that an applicant is applying for entry under       paragraph 46 usually presupposes that he intends to settle in the       United Kingdom with his wife after the marriage or when he has       received entry clearance, as the case may be.   Accordingly, it       is "fatally easy" but wrong to treat an admission on his part       that he seeks to obtain admission to or remain in the United       Kingdom as evidence that this was the primary purpose of the       marriage.         Section 13(1) of the Immigration Act 1971 gives a right of appeal on fact and law to an Adjudicator.   Appeal from an Adjudicator's decision may be made to an Immigration Appeal Tribunal under section 20 of the 1971 Act.   Judicial review of the decision of these appellate authorities may lie if they or the entry clearance officer concerned left out of account a factor that should have been taken into account or took into account a factor they should have ignored, or did not take the decision according to the requirements of the law.     COMPLAINTS         The applicant complains that the original refusal to allow her husband to join her in the United Kingdom constituted an unjustified interference with her right to respect for family life, ensured by Article 8 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 26 May 1989 and registered on 6 March 1990.   After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 4 April 1990.   It decided, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on admissibility and merits.   The Government's observations were submitted on 5 September 1990, after two extensions of the time-limit fixed for this purpose.   The applicant replied, in two stages, on 16 October and 2 November 1990.   The applicant was granted legal aid by the President of the Commission on 22 January 1991.         On 16 January 1991 the applicant informed the Commission that her husband had been refused entry clearance as a visitor to the United Kingdom.   The Government explained the reasons for that refusal in a letter dated 25 November 1991.         On 6 December 1991 the Commission decided, in accordance with Rule 50 para. (a) of the Rules of Procedure, to request the applicant's comments on the Government's letter of 25 November 1991 and to provide detailed evidence about her visits to Dubai or India in order to be with her husband and about the couple's correspondence and telephone calls.   On 6 April 1992 the applicant replied only commenting on the Government's letter, but not providing any of the evidence which had been requested.         On 8 July 1992 the Government informed the Commission that they had decided to authorise the issue of entry clearance to the applicant's husband.   On 22 July 1992 the applicant's representative informed the Commission that, in the applicant's view, the grant of a visa to Mr. Goraniya did not invalidate or vitiate the application, which was therefore maintained.     THE LAW         The applicant complains of the original refusal of entry clearance to enable her Indian husband to join her in the United Kingdom and she invokes Article 8 (Art. 8) of the Convention.         Article 8 para. 1 (Art. 8-1) of the Convention provides :         "Everyone has the right to respect for his private and       family life, his home and his correspondence."         However the Commission notes that the applicant's husband has now been issued with entry clearance to join her in the United Kingdom. In view of this development, the Commission concludes that the grant of entry clearance to the applicant's husband fully resolves the factual basis of her application and that the applicant can no longer claim, under Article 25 (Art. 25) of the Convention, to be a victim of a violation of the Convention.           It follows that the application is 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 Commission          President of the Commission              (H.C. KRÜGER)                       (C.A. NØRGAARD)