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. 20118/92                       by F.P.                       against the United Kingdom           The European Commission of Human Rights sitting in private on 12 October 1992, the following members being present:              MM.    S. TRECHSEL, Acting President                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Sir    Basil HALL            MM.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER              Mr.    K. ROGGE, Deputy to the Secretary to the Commission,            assisted by Mr. A. GRAD         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 February 1992 by F.P. against the United Kingdom and registered on 15 June 1992 under file No. 20118/92;         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 applicant is an Indian national; he was born in 1967.   He is represented in the proceedings before the Commission by Mr. Norman H. Barnett & Co., solicitors practising in London.         The facts, as submitted by the applicant and which may be deduced from the documents lodged with the application, may be summarised as follows.         The wife of the applicant (Z.) is a British citizen.   She was born in India in 1961 and emigrated from India to the United Kingdom at the age of 16.   She had a previous marriage which was dissolved in 1982.   She had been introduced to the applicant, six years her junior, on her visit to India in January 1986, and they married within two months on 28 March 1986.   The couple lived together until 5 October 1986 when Z. returned to the United Kingdom.   She again lived with the applicant from 21 May 1989 until 23 July 1990 in India before returning to the United Kingdom.         There was continuing correspondence and telephone contact thereafter. On 9 November 1990 their daughter was born with certain medical complications, and therefore was transferred to a special baby care unit. This caused Z., who is permanently suffering from epilepsy and hysteria, considerable distress.   In this connection she stated that she needed the help of her husband.         The brother of Z. lives with his family in the United Kingdom and is a shop owner.   He offered both accommodation and employment to the applicant to enable him to settle in the United Kingdom.         The applicant applied for entry clearance immediately after the marriage, but his application was refused, as was his appeal to an Adjudicator on 31 July 1989, because he was deemed to have contracted the marriage for the primary purpose of immigrating to the United Kingdom in contravention of para. 50 (a) of the Immigration Rules (H C 388).         On 7 July 1989 the applicant lodged a further application.   The applicant and Z. were interviewed by an Entry Clearance Officer, but the application was refused on the same grounds as before.   The applicant's credibility was deemed suspect as his answers to questions were often contradictory and he admitted to the Officer that he married mainly to obtain entry to the United Kingdom.   The wife, when interviewed, first of all agreed that she and her husband had had no opportunity to fall in love and went on to say that she had been divorced in 1982 and had come to India "to marry anybody.   I saw him, so I think I can marry him".   Asked if she knew why the applicant should want to marry her (she being six years his senior) she said she did not know.   Asked if it was possible one reason was to enable him to go to the United Kingdom, she replied "Maybe, maybe not". She went on to say that she did not know why the applicant wanted to marry her but agreed he would be better off in the United Kingdom and she had told him so.         The applicant's appeal to an Adjudicator was dismissed on 20 August 1991 as on the evidence it was difficult to see how the Entry Clearance Officer could have concluded otherwise than he did.   The Adjudicator's decision was upheld by an Immigration Appeal Tribunal on 12 December 1991.     COMPLAINTS         The applicant complains that his rights under Article 8 of the Convention have been violated. THE LAW         The applicant complains of the refusal of his entry to the United Kingdom and 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."         The present case raises an issue under Article 8 (Art. 8) of the Convention, for, 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).         Article 8 (Art. 8) of the Convention presupposes the existence of a family life and at least includes the relationship that arises from a lawful and genuine marriage even if a family life has not been fully established.   The Commission notes that the applicant and Z. have lived together in India, namely six months in 1986 and 14 months in 1989-90 and that they now have a child, who has not yet been seen by her father.         The Commission recalls, however, that the State's obligation to admit to its territory aliens who are relatives of persons resident there will vary according to the circumstances of the case.   The Court has held that Article 8 (Art. 8) does not impose a general obligation on States to respect the choice of residence of a married couple or to accept the non- national spouse for settlement in the State concerned (Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 34, para. 68).         The Commission has had regard to the findings of fact by the Adjudicator, upheld by the Immigration Appeal Tribunal, and their conclusion that, in the circumstances of the instant case, it seemed that the primary purpose of the marriage was to effect the applicant's entry into the United Kingdom.   This is borne out by the interviews of the applicant and his wife with the Entry Clearance Officer.         The Commission also notes that it has not been shown that there were obstacles to establishing family life in the applicant's home country, India, from where his wife originates and where she lived until she was 16 years of age.         In these circumstances the Commission concludes that the decision to refuse the applicant entry into the United Kingdom has not failed to respect his right to respect for family life, ensured by Article 8 para. 1 (Art. 8-1) of the Convention.   Accordingly it follows that the case is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission by a majority         DECLARES THE APPLICATION INADMISSIBLE.           Deputy to the Secretary to             Acting President of       the Commission                         the Commission           K. ROGGE                               S. TRECHSEL