CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 septembre 1996

.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. 24723/94                       by Nitaben PATEL                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 4 September 1996, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  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 24 April 1994 by Nitaben PATEL against the United Kingdom and registered on 28 July 1994 under file No. 24723/94;        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 born in India in 1964 and resident in Middlesex, United Kingdom.   She is represented before the Commission by Sheridans Solicitors.   The facts as submitted by the applicant can be summarised as follows.          The applicant entered the United Kingdom on 23 July 1986. On 6 September 1986 she married "P" and on 1 October 1987 their daughter was born. On 10 August 1988 the applicant was given indefinite leave to remain in the United Kingdom.   The marriage suffered difficulties and on 15 January 1993 a decree absolute was granted and the marriage was dissolved.        On 18 March 1993 the applicant married M.   M is an Indian citizen born in 1963. His previous wife had died in India on 13 January 1993. M entered the United Kingdom on 7 February 1991 with a single visit entry clearance, valid for a period of six months.   On 28 June 1991 he applied for leave to remain as a working holiday-maker.   On 30 April 1992, his application was refused.   His appeal against that refusal was heard on 24 March 1993 and dismissed on 5 May 1993.   On 15 April 1993, he applied for leave to remain as the spouse of the applicant.   On 10 March 1994 his application was refused on the basis that the Secretary of State was not satisfied that the primary purpose of the marriage was not to obtain settlement in the United Kingdom or that M intended to live permanently with the applicant as his spouse. M had no right of appeal against that decision and remained in the United Kingdom without leave.        On 12 September 1994 the Secretary of State made a decision to make a deportation order requiring M to leave the United Kingdom, directing that he be removed to India and prohibiting him from re- entering.   On 14 March 1995 M's appeal against that decision was rejected by the Adjudicator.   On 29 June 1995 the Immigration Appeal Tribunal refused M leave to appeal to the Tribunal against the decision of the Adjudicator.   COMPLAINTS        The applicant complains that the decision of the Secretary of State to refuse M leave to remain in the United Kingdom constitutes a violation of her right to respect for her private and family life contrary to Article 8 of the Convention.   She states that she has now been in the United Kingdom for more than seven years, has a daughter by her first marriage, is employed as an assembly worker on a permanent basis, lives in a happily settled family unit and is used to the way and standard of life obtainable in the West.   THE LAW        The applicant alleges a violation of Article 8 (Art. 8) of the Convention claiming that the deportation of her husband will interfere with her right to respect for her family and private life.   Article 8 para. 1 (Art. 8-1) (Art. of the Convention provides as follows.        "Everyone has the right to respect for his private and      family life, his home and his correspondence."        The present case may raise 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. 8.7.82, 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 yet been fully established.        However, the Commission recalls that the State's obligation to admit to its territory aliens who are relatives of persons resident in the territory will vary according 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 of the country of their matrimonial residence or to accept non- national spouses for settlement in that country (Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 94, para. 68). Whether the removal or exclusion of a family member from a Contracting State is incompatible with the requirements of Article 8 (Art. 8) will depend of a number of factors: the extent to which family life is effectively ruptured, whether there are obstacles to establishing family life in either of the spouses' home countries, whether there are special reasons why that could not be expected of them, whether there are factors of immigration control or considerations of public order (see Eur. Court H.R. Abdulaziz judgment referred to above at para. 68, Berrehab judgment of 21 June 1988, Series A no. 138, para. 29, Gül judgment of 19 February 1996, Reports, para. 42 and No. 9285/81 Dec. 6.7.82, D.R. 29 p. 205).        The Commission notes the findings of the immigration authorities that the primary purpose of M's marriage to the applicant was to obtain settlement in the United Kingdom and that he had married the applicant eleven months after his application for leave to remain as a working holiday-maker had been refused and only six days before his appeal against that decision was heard.   Further, the Commission recalls that the applicant herself had only been in the United Kingdom for eight years at the time of the decision of the Secretary of State to issue a deportation order in respect of M and that she had lived in India for 24 years before going to the United Kingdom.   Accordingly the obstacles to M and the applicant establishing family life in their home country are not serious.        In these circumstances the Commission concludes that the decision to refuse M leave to remain in the United Kingdom as the spouse of the applicant has not failed to respect the applicant's right to respect for her family or private life, as guaranteed by Article 8 (Art. 8) of the Convention.        Accordingly the complaint must be dismissed as 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.         M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber