CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 novembre 1995

.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. 23860/94                       by Isbor KHAN                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 29 November 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the 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 November 1993 by Isbor KHAN against the United Kingdom and registered on 12 April 1994 under file No. 23860/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      17 February 1995 and the observations in reply submitted by the      applicant on 2 June 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen born in 1936 who first entered the United Kingdom in 1963.   He lives in Oldham and is represented before the Commission by Mr. P. Johnson, solicitor, of Oldham Law Centre.   The particular facts of the case        On 20 March 1991 Aftera Bibi and four children applied for leave to enter the United Kingdom.   They were refused leave by the Entry Clearance Officer on 17 July 1991 on the ground that Aftera Bibi was the second wife of two,        "the first wife having been admitted to the United Kingdom in      1975 for settlement as the wife of the [applicant].   The first      wife had continued to live with the [applicant] and there did not      seem to have been any steps taken to terminate that marriage.      Therefore as Aftera Bibi's marriage to [the applicant] was      polygamous and as the other wife was living in the United      Kingdom, the [second wife] could not qualify for entry      clearance."        The children's applications were also rejected, as the applicant was not solely responsible for their upbringing, and they were not "living alone in the most exceptional circumstances ...".        An Adjudicator dismissed the applicant's appeal on 22 January 1993.   Before the Adjudicator the applicant's representative submitted that Paragraph 3 of HC 251 was discriminatory and in violation of the Convention.   He did not call any evidence.   The Adjudicator found that Paragraph 3 was mandatory and that it applied, such that the second wife and the four children could not be granted entry.        The Immigration Appeal Tribunal refused leave to appeal on 14 April 1993.   The applicant's representative received the decision on 19 April 1993.   Relevant domestic law        Paragraph 3 of the Immigration Rules ("the Rules") which were in force at the relevant time (HC 251) reads as follows:        "Nothing in these rules shall be construed as allowing a woman      to be granted entry clearance, leave to enter or remain or      variation of leave as the wife of a man ("the husband") if:        (a)    her marriage to the husband is polygamous; and        (b)    there is another woman living who is the wife of the            husband and who              (i)    is, or at any time since her marriage to the husband                  has been, in the United Kingdom; or              (ii)   has been granted a certificate of entitlement in                  respect of the right of abode mentioned in Section 2                  (1)a of the Immigration Act 1988 or an entry clearance                  to enter the United Kingdom as the wife of the                  husband.        For the purpose of this paragraph a marriage may be polygamous      although at its inception neither party has any spouse additional      to the other."        Paragraph 86 of the Rules provided that a passenger (but not the wife and child under 18 of a person settled in the United Kingdom) could be refused leave to enter the country on the ground that his exclusion was conducive to the public good.   COMPLAINTS        The applicant considers that the rules of United Kingdom immigration law are discriminatory in that they discriminate against women in polygamous marriages as compared with men in polyandrous marriages.        He sees a violation of Article 8 of the Convention in that he is prevented from living in the United Kingdom with his second wife, and a violation of Article 12 in that he is prevented from forming a family in the sense of parents and children living together as a unit.        He also alleges a violation of Article 14 of the Convention in connection with Article 8 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The applicant's representative first wrote to the Commission on 19 October 1993.   That letter (postmarked 20 October 1993) was headed "Isbor Khan / Aftera Bibi", and began "I am advising the above persons in connection with an immigration matter concerning the Government of the United Kingdom".   He asked for the appropriate forms, and added that he had "telephoned on numerous occasions leaving messages on your answering machine in both English and in French.   Despite this, I have received no return telephone call".   A standard form letter was sent, and on 17 November 1993 the applicant's representative again wrote, giving a summary of the facts of the case and the Convention complaints.   By way of reply, the applicant's representative was informed that it was not certain that the letter of 19 October 1993 contained sufficient information to constitute introduction of the application, and that the Council of Europe and the Commission do not have a telephone answering machine on which messages can be left.        The applicant's representative informed the Commission on 23 December 1993 that he had telephoned the Strasbourg number 88.24.18.12 and that the answering machine described itself: "This is the Centre for the European Citizens Human Rights".        The application was registered on 7 February 1994.        On 12 October 1994 the Commission (First Chamber) decided to bring the application to the notice of the respondent Government and to put questions to the parties as to the admissibility and merits of the case.        The Government submitted their observations on 17 February 1995, after two extensions of the time-limit, and the applicant submitted his observations on 2 June 1995.   THE LAW        The applicant alleges violation of Articles 8, 12 and 14 (Art. 8, 12, 14) of the Convention in that he is not permitted to have his second wife join him in the United Kingdom because of the rules which prohibit the second wife of a polygamous marriage from entering the United Kingdom where a first wife is already there.        The Government submit that the application is inadmissible for non-compliance with the six months' rule, the applicant having first written to the Commission on 19 October 1993, that is, more than six months after the decision of 14 April 1993.   In the alternative, they submit that by failing to apply for judicial review of the refusal of leave to appeal, the applicant has not exhausted the domestic remedies available to him.        As to the substantive arguments, the Government recall that bigamy is a criminal offence in the United Kingdom, and note that the applicant has not in fact been prevented from marrying twice by United Kingdom law or the application of the Rules.   They submit that a polyandrous woman would not be permitted to be joined by more than one husband, as a request for such leave to enter would be refused as not being conducive to the public good.        The applicant underlines that although the decision of the adjudicator was given on 14 April 1993, he only received it on 19 April 1993.   He considers that he has therefore met the time limit of six months.   He regards the possibility of an application for judicial review of the refusal of leave to appeal to the Immigration Appeal Tribunal as useless as sex discrimination provisions do not apply to United Kingdom immigration law.        As to the substantive issues, the applicant repeats his initial submissions.        The Commission is not required to decide whether or not the application discloses any appearance of a violation of the Convention as the applicant has not complied with the requirement of Article 26 (Art. 26) of the Convention that an application be introduced within six months from the date of a final decision.   The final decision regarding the applicant's case was the decision of the Immigration Appeal Tribunal to refuse leave to appeal, and that decision was given on 14 April 1993 and received by the applicant's representative on 19 April 1993.    In accordance with its established case-law, the Commission finds that the date of the final decision was the date on which the applicant's representative received the decision, namely 19 April 1993, which was the first time he became aware of its contents (cf. No. 10889/84, Dec. 11.5.88, D.R. 56, pp. 56, 57 and the case-law referred to there).        Pursuant to Rule 44 (4) of its Rules of Procedure, the Commission in general takes as the date of introduction the date of the first communication from the applicant "setting out, even summarily, the object of the application".   The next question in the present case is therefore whether the applicant's first letter of 19 October 1993 set out, even summarily, the object of the application.   In considering this question, the Commission must bear in mind that excessive formalism is to be avoided (cf. Eur. Court H.R., Toth judgment of 12 December 1991, Series A no. 224, p. 22, para. 82).            The applicant's letter of 19 October 1993 gave no indication of the subject matter beyond the phrase "an immigration matter".   It gave the names of the applicant and his second wife, but no other indication whatever as to the nature or object of the intended application.   In particular, it referred to no domestic decisions which were being challenged, and gave no hint as to the Convention issues which could be raised (for an example of a letter which did comply with Rule 44 (4), see No. 10293/83, Dec. 12.12.85, D.R. 45, p. 41, at pp. 55 - 57). The applicant's letter of 19 October 1993 did not therefore introduce the application.        Rule 43 of the Commission's Rules of Procedure requires any application under Articles 24 or 25 (Art. 24, 25) of the Convention to be submitted "in writing".   An application cannot therefore be made other than in writing.   The same formality need not, however, necessarily apply to the introduction of an application, for which a mere "communication" suffices.        The applicant's representative states that he attempted to enter into contact with the Commission's secretariat by telephone, and that his telephone message was never answered.   The applicant must, however, have rung the wrong number, as the number he gives is not and was not the number of the Commission's secretariat or of the Council of Europe, and indeed it does not now exist.   Given that the principal aim of the six months rule in Article 26 (Art. 26) of the Convention is the promotion of legal certainty (cf. No. 10889/94, Dec. 11.5.88, referred to above), the Commission cannot accept that allegations of telephone calls to what transpires to be a wrong number can constitute introduction of an application with the Commission within the meaning of Rule 44 para. 4 of the Commission's Rules of Procedure.        Accordingly, the date of introduction of the present application is 17 November 1993, which is more than six months after the date of the final decision.   It follows that the application must be rejected under Article 27 para. 3 (Art. 27-3) 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)                         (C.L. ROZAKIS)