CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 janvier 1993

.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 }                                 FIRST CHAMBER                           AS TO THE ADMISSIBILITY OF                          Application No. 19577/92                            by T.A. and H.N.                       against the United Kingdom                                 __________           The European Commission of Human Rights (First Chamber), sitting in private on 8 January 1993, the following members being present:                MM.   J.A. FROWEIN, President of the First Chamber                   F. ERMACORA                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK              Sir   Basil HALL              Mr.   C.L. ROZAKIS              Mrs. J. LIDDY              MM.   M. PELLONPÄÄ                   G.B. REFFI                Mrs. M.F. BUQUICCHIO, 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 17 December 1991 by T.A. and H.N. against the United Kingdom and registered on 4 March 1992 under file No. 19577/92;         Having regard to the report provided for in Rule 47 of the Commission's Rules of Procedure;         Having deliberated,         Decides as follows: THE FACTS         The first applicant was born in Bangladesh in 1935.   He has been living in the United Kingdom since 1962, becoming a British citizen in 1968.   The second applicant is his wife, also of Bangladeshi origin, born in 1936.   They are represented before the Commission by Messrs James & Co., Solicitors, Bradford.         The facts of the case, as submitted by the applicants and which may be decuded from documents submitted with the application, may be summarised as follows:         In 1973 the first applicant applied for entry clearance to the United Kingdom for the second applicant, three of his sons and one daughter.   All the children were at that time under 16 years of age.         In 1976 the second applicant was given entry clearance along with her daughter and her fourth son who had been born subsequent to the original application to enter the United Kingdom.   A decision on entry for the three sons was adjourned for further consideration.         Following an interview on 4 November 1977 between the three sons and the Entry Clearance Officer their application was refused on the grounds that they were not believed to be related to the first applicant as claimed.         An appeal against the decision of the Entry Clearance Officer was dismissed by an Adjudicator on 21 April 1980 on the grounds that the sons had failed to discharge the burden placed upon them to prove that they were related to the first applicant as claimed.         On 11 March 1980 the sons made a further application for entry clearance.   By this time, according to birth dates submitted by the first applicant, they were aged 29, 25 and 23 respectively.   In April 1988 the Entry Clearance Officer again refused entry on the grounds that he was not satisfied that they were the sons of the first applicant, and because they were now all over the age of 18 and could no longer be considered dependents.   An appeal against this decision was dismissed by an Adjudicator in December 1989.         A DNA blood test (report dated 13 April 1989) subsequently established that the sons were related to the first applicant.         On 14 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."         On 23 June 1989 representations were made on behalf of the first applicant, asking the Secretary of State to exercise his discretion and permit the three sons to enter the United Kingdom.   As part of these representations the first applicant pointed out that one of the sons was now significantly mentally disturbed, and that the second applicant had also spent a period of time as an in-patient in a mental hospital. These developments he claimed were as a result of the family being caused to live apart for such a long period of time.         The Secretary of State replied to the applicants' solicitor on 7 August 1989 as follows:         "I refer to your letter of 23 June on behalf of [SA, RA and AA],       who have applied for settlement as the dependent sons of [TA].         As you know, all three men were refused entry clearance most       recently on 5 April 1988, on that occasion on the grounds that       they were over 18 when their application was made and they were       not living alone in the most exceptional compassionate       circumstances.   An appeal is pending against this decision.         As you are aware, the Home Secretary announced on 14 June that       he was prepared to consider exercising his discretion outside the       Immigration Rules in certain circumstances where a person       previously refused entry clearance on relationship grounds is now       able to establish relationship by means of DNA evidence, as is       the case here.   The applications made by [the three men] have       been reviewed in the light of the Home Secretary's statement.         The Secretary of State has carefully considered all the       circumstances of the case, including the representations made in       your letter of 23 June.   He accepts that [AA] is mentally       retarded; and he notes that one brother and one sister were       granted entry clearance in 1976.   Two more children have       subsequently been born in the United Kingdom.   However, he also       notes that [SA, RA and AA] are now aged 32, 28 and 26       respectively.   [SA] is married and earns an income from dealing       with fertilisers which is used to support himself and other       family members, in addition to the income from the family land.       He further notes that the three brothers are living on the family       compound with [TA's] mother and other relatives.   Finally, he       notes that the sponsor, [TA], left Bangladesh in June 1974 and       was joined by his wife and two children in June 1976.   [The       applicants] returned to Bangladesh for the first time in March       1986.   Consequently, by 1986 the three remaining sons had lived       apart from their parents for a period of nearly 12 years and       nearly 10 years respectively.         The Secretary of State takes the view that these three applicants       have each settled into independent adult life and cannot in any       real sense be regarded as dependent on their United Kingdom       sponsor.   Furthermore, although [AA's] mental condition is       clearly a relevant factor, as it appears that he has for many       years been living and working with his brothers rather than his       parents, the Secretary of State does not regard this factor alone       as decisive.   As regards [SA and RA], the Secretary of State is       not satisfied that there are any compassionate factors which       distinguish their case from the generality of overage       reapplicants.           Accordingly, having regard to the terms of his statement on       14 June and having considered all the circumstances of this case,       the Secretary of State is not prepared to exercise his discretion       outside the Immigration Rules to authorise the issue of entry       clearance to [SA, RA or AA]."         The applicants' solicitors requested the Secretary of State to exercise his power under section 21 of the Immigration Act 1971 to refer the sons' case back to an Adjudicator for an advisory opinion. On 3 September 1990 the Secretary of State refused to do so on the general grounds that he will not "normally exercise his power under section 21 of the 1971 Act in cases involving overage reapplicants where he has already considered exercising his discretion under the terms of his statement of 14 June (1989), but has decided not to do so ...   He has decided not to depart from his general approach in these cases".         The first applicant was refused leave to apply for judicial review of the Secretary of State's decision on 18 August 1991.     COMPLAINTS         The applicants complain that they are victims of a violation of Articles 8, 13 and 14 of the Convention:         "Article 8 has been violated in that the natural desire of the       applicants to have a normal family life including in particular       the care of their mentally handicapped son has been violated.         Article 13 is violated in that there is in practice no manner in       which the case can be brought before a court in the United       Kingdom, and the only possible route which was a referral under       section 21 of the Immigration Act 1971 was refused ...         Article 14 has been violated in that the rule was formulated in       the specific knowledge that the vast and overwhelming majority       of those who were likely to be affected by the rule originated       in the Indian Sub-Continent and were by race, colour, language       and religion different to the general population of the United       Kingdom and it is the belief of the applicants that if they were       of the general race, colour, language and religion of the       overwhelming majority of the population of the United Kingdom       that either the rule would have been written differently or the       discretion would have been exercised differently under the rule."     THE LAW         The applicants complain of the refusal of entry clearance by the British immigration authorities to allow their three sons to join them in the United Kingdom.   1.     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 Article 8 (Art. 8) of the Convention, para. 1 of which guarantees inter alia, the right to     respect for family life (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. 5.7.82, 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, parents and their sons, aged 35, 32 and 29 respectively 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 1976 to grant entry clearance before their relationship with their sons could be proved by DNA blood testing.   If they could have proved their relationship earlier the sons 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 1976 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 with their sons now.         As regards the facts of the present case, the Commission notes that the sons have strong ties with Bangladesh, where they have lived all their lives.   The family apparently has land, from which they are able to live and the eldest son is married and deals in fertilisers. They all live on the family compound with their grandmother and other relatives.   Although the mental health of one of the sons seems to be deteriorating, he is being cared for by his brothers and other members of his family.   It is by no means clear that a move to the United Kingdom would necessarily improve his condition.   Furthermore, there is no evidence in the case-file to substantiate the second applicant's claim that she is suffering mentally and physically to a serious degree because of the separation from her adult children.         The Commission finds that no evidence has been provided which indicates that there exists a sufficiently close link between the applicants and their sons which could be deemed to require the protection afforded by Article 8 (Art. 8) of the Convention 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 must be rejected as being manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicants next complain that the entry clearance rules applied in their case amounted to discrimination contrary to Article 14 of the Convention, presumably read in conjunction with Article 8 (Art. 14+8) of the Convention, on alleged grounds of race, colour, language and religion.   Article 14 (Art. 14) of the Convention prohibits discrimination in the securement of Convention rights.         However, the Commission again finds no evidence in the present case to substantiate the applicants' claim.   The immigration rules and practices in question are applicable in general to all "non patrials" wanting to enter or settle in that country.   They do not differentiate between persons or groups on the ground of race or ethnic origin.   They are applicable across the board to intending immigrants from all parts of the world, irrespective of their national origin (cf. Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A No. 94, pp. 39-41, paras. 84-86).         In these circumstances the Commission concludes that the present case does not disclose any appearance of a violation of Article 14 of the Convention read in conjunction with Article 8 (Art. 14+8).   It follows that this part of the application is manifestly ill-founded.   3.     Finally the applicants complain of a violation of Article 13 (Art. 13) of the Convention which guarantees an effective domestic remedy for breaches of the Convention.         However, the case-law of the Commission establishes that Article 13 (Art. 13) does not require a remedy in domestic law for all claims alleging a violation of the Convention.   The grievance must be an arguable one (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).   In light of the above conclusions concerning the applicants' complaints under Articles 8 and 14 (Art. 8, 14) of the Convention, the Commission finds that the applicants do not have an arguable claim of a breach of these provisions which warrants a remedy under Article 13 (Art. 13).   This part of the application must also therefore 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 First Chamber         President of the First Chamber             (M.F. BUQUICCHIO)                       (J.A. FROWEIN)