CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 mars 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 }                            AS TO THE ADMISSIBILITY OF                         Application No. 20516/92                       by K.M.                       against the United Kingdom           The European Commission of Human Rights (First Chamber) sitting in private on 31 March 1993, the following members being present:              MM.    J.A. FROWEIN, President of the First Chamber                  F. ERMACORA                  G. SPERDUTI                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. PELLONPÄÄ                  B. MARXER              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 29 November 1991 by K.M. against the United Kingdom and registered on 19 August 1992 under file No. 20516/92;         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 a citizen of the United Kindom, of Bangladeshi origin.   He was born in 1939 and resides in London.   He settled there in 1965.   He is represented before the Commission by Messrs. Hafiz and Co., solicitors, London.         The facts of the present case, as submitted by the applicant and which may be deduced from documents lodged with the application, may be summarised as follows:         The applicant has several children including two sons, born in 1964 and 1965 respectively.   They applied for entry clearance in 1973, 1979 and 1982 to join the applicant in the United Kingdom.   Entry clearance was refused as they were not believed to be related to the applicant as claimed.   In August 1986 a further entry clearance application was made.   In May 1988, during the course of these proceedings, DNA blood analysis revealed that they very probably were related, but the application was again refused because the sons were well over 18 years of age and, although demonstrating some elements of dependency on the applicant, there were no compassionate circumstances justifying an exception to the 18 year age limit.   They were students with a high standard of living compared to life in other villages. They were considered to be self sufficient residing on the family compound with relatives nearby.   There was no evidence of financial dependency on the applicant.   If remittances were being made it was by choice rather than necessity.   The applicant himself had insufficient means to support them in the United kingdom.         On 10 December 1990 the Secretary of State refused to exercise his discretion in the sons' favour.   The policy in such cases is that entry clearance will only be granted if, inter alia, the child, albeit an adult, could establish significant dependency on the parent, as well as compassionate circumstances to justify an exception to the 18 year age limit.   The Secretary of State considered that the sons had settled into independent adult life and were not wholly or mainly dependent on the applicant.   This decision was upheld on judicial review (final decision: High Court 11 June 1991).     COMPLAINTS         The applicant complains that the refusal of entry clearance to his two sons constituted a violation of Article 8 of the Convention. Article 5 of Protocol No. 7 is also invoked.     THE LAW   1.     The applicant complains that the refusal of entry clearance for his two sons 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).           In examining cases of the present kind the Commission's initial 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.   In immigration cases, relationships between adults, a father and his 27 and 28 year old sons 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 applicant's frustration arising from the initial refusals to grant entry clearance to his two sons before their relationship could be proved by DNA blood testing.   If they had been able to prove 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 applicant.   In this connection the Commission recalls its constant case-law that such verification procedures, as existed in the United Kingdom in the 1970s 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 sons' present day circumstances and the nature of their relationship to the applicant now.         As regards the facts of the present case, the Commission notes that the two sons have strong ties with Bangladesh, where they have lived all their lives.   They reside on the family compound with relatives nearby and have a reasonable standard of living.   There is no evidence that the sons are financially dependent on the applicant. In these circumstances the Commission finds that it has not been shown that there exists a sufficiently close link between these the applicant and his sons 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 must be rejected as being manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.     2.     The applicant has also complained of a breach of Article 5 of Protocol No. 7 (P7-5), which ensures equality of rights and responsibilities between spouses.   However, the Commission is unable to deal with a complaint directed against the United Kingdom based on this provision because the United Kingdom has not ratified Protocol No. 7 (P7).   It follows that this aspect of the case is outside the competence ratione personae of the Commission and therefore incompatible with the provisions of the Convention pursuant to Article 27 para. 2 (Art. 27-2).         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)