CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1997

.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. 32214/96                       by E.R.                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 21 May 1997, the following members being present:                Mrs.   J. LIDDY, President            MM.    E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              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 6 February 1996 by E.R. against the United Kingdom and registered on 10 July 1996 under file No. 32214/96;        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 British citizen, born in 1954 and resident in London. She is represented before the Commission by the AIRE legal centre in London.   The facts as submitted by the applicant may be summarised as follows.   A.    Particular circumstances of the case        The applicant is a senior nurse living and working in London. She is married to M.R., an Algerian national born in 1958, who has been refused leave to enter the United Kingdom.        The applicant met M.R. in February 1992, in London.   M.R. had first come to the United Kingdom in 1983.   He had studied English and was granted various extensions of stay until 1 January 1986, although he subsequently overstayed until 30 October 1987, when he returned to Algeria.   On 25 June 1988 he returned to the United Kingdom, ostensibly as a visitor for ten days to two weeks and then claimed political asylum on the grounds that he would have to perform military service in Algeria.   The application was rejected and on 28 June 1988 he was refused entry and removed to Paris.   The appellant returned to the United Kingdom three weeks later and entered the country illegally from Holland, by boat.   He subsequently studied in Brixton using a false French identity card in order to obtain reduced fees as a European Community National. He made one visit to Holland in 1990 again returning to England illegally by boat, but otherwise remained in the United Kingdom.        Between February 1992 and May 1992, the applicant became aware of the fact that M.R. was residing in England without a current visa. M.R. moved in with the applicant in May 1992, and shortly thereafter the applicant converted to Islam and the couple were married in a Muslim wedding ceremony in the United Kingdom.   In May 1993 the applicant and M.R. travelled to Algeria in order to perform a civil marriage.   The applicant was introduced to M.R.'s family.   However, the couple were refused permission by the Algerian authorities to marry, and the applicant returned after six weeks to the United Kingdom, with M.R. remaining in Algeria.        On 12 June 1993 an application was made by M.R. for entry clearance, and on that date the applicant was interviewed as M.R.'s sponsor.   The application was deferred to enable the Entry Clearance Officer to obtain details of the M.R.'s history from the Home Office.        In August 1993 the applicant visited Algeria for two weeks, during which time she married M.R. in a civil ceremony on 29 August 1993.   Again the applicant returned to England, with M.R. remaining in Algeria.        The applicant visited Algeria for two weeks in November 1993. After this date it became increasingly dangerous for foreigners to visit Algeria due to a fundamentalist campaign of violence against foreigners.   The Foreign and Commonwealth Office advised visitors not to travel to Algeria and advised British residents in Algeria to leave the country.        In July 1994 the applicant spent two weeks with M.R. in Morocco. Apart from these periods the applicant has been separated from her husband, although they maintain contact through telephone calls.        M.R. was interviewed at the United Kingdom embassy in Algeria on 4 September 1994. At the conclusion of this interview the Entry Clearance Officer refused the application for Entry Clearance on the following terms:        "You have applied for a visa with a view to admission to the UK      as the husband of [E.R.], but I am not satisfied that the      marriage was not entered into primarily to obtain admission to      the UK."        The Entry Clearance Officer, amongst his reasons for refusal, stated that M.R. had a very bad previous immigration history.        A notice of appeal was lodged on 13 September 1993 against the refusal of the Entry Clearance Officer, this appeal was rejected.        An appeal under the Immigration Act 1971 was made against the refusal of the visa for M.R..   This appeal was heard in London on January 1995.   In a judgment of 8 March 1995 the adjudicator upheld the refusal of the Entry Clearance Officer to grant a visa to M.R.. The adjudicator did however note that the applicant was deprived of the opportunity of living in Algeria due to the political situation there and that the applicant's devotion to M.R. was not in doubt.   The adjudicator went on to make a recommendation to the Secretary of State that M.R. be granted entry clearance to join his wife in the United Kingdom.   M.R. was at this time living in Turkey, in an attempt to avoid being obliged to carry out his military service in Algeria.        In March and April 1995 the applicant requested that the recommendation of the adjudicator be implemented.   This was refused.        In May 1995 the applicant petitioned for leave to appeal to the Immigration Tribunal.   This was refused on 25 May 1995 on the basis that the adjudicator's conclusions to uphold the refusal of an entry visa were fully supported by the evidence and there was no misdirection in law.        On 10 October 1995 an application for leave to apply for judicial review the decision of the adjudicator was refused. A renewed application for leave to apply was refused on 27 March 1996.   B.    Relevant domestic law and practice        Entry clearance to enter the United Kingdom as a spouse of a British citizen is granted or refused in accordance with the provisions of paragraph 281 of the Immigration Rules HC 395.        Paragraph 281 states, so far as relevant, as follows:        "The requirements to be met by a person seeking leave to      enter the United Kingdom   with a view to settlement as the      spouse of a person present and settled in the Untied      Kingdom ... are that:      ...            the marriage was not entered into primarily to obtain      admission to the United Kingdom; and      ...      each of the parties intends to live permanently with the other      as his or her spouse and the marriage is subsisting;      ..."     COMPLAINTS        The applicant alleges violations of Articles 8 and 13 of the Convention as she claims she was unable to exercise a family life with her husband.   The applicant further claims that the Government made a determination that the couple could exercise their rights in Algeria. The applicant alleges that were she to join her husband in Algeria she would be placed in a dangerous situation, given the known violence against foreigners in Algeria. The applicant thus complains of a potential violation of the United Kingdom's positive obligations under Articles 2 and 3 of the Convention. The applicant also alleges a violation of Article 13 of the Convention.   THE LAW   1.    The applicant complains under Articles 2 and 3 (Art. 2, 3) of the Convention, that the British Government determined that she could exercise her family life in Algeria, where the situation is dangerous for foreigners.        Article 2 (Art. 2) of the Convention provides, so far as relevant, as follows:        "1.    Everyone's right to life shall be protected by law.   No one      shall be deprived of his life intentionally save in the execution      of a sentence of a court following his conviction of a crime for      which this penalty is provided by law."        Article 3 (Art. 3) of the Convention provides as follows:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."        The Commission notes that the adjudicator of the appeal in January 1995 found that the applicant was deprived of the opportunity of living in Algeria due to the political situation there. There is no evidence that the applicant has at any time been encouraged or forced to visit Algeria by the Government. On the contrary, it appears that the applicant has heeded the Government's advice not to visit Algeria during the current period of violence against foreigners.        In these circumstances the Commission considers that the applicant's complaint that the Government made a determination that she could exercise her family rights in Algeria is unsubstantiated.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant complains that she was unable to exercise a family life with her husband in violation of Article 8 (Art. 8) of the Convention.        Article 8 (Art. 8) of the Convention provides, so far as relevant:        "1.    Everyone has the right to respect for his ... family      life...        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The Commission recalls that Article 8 (Art. 8) of the Convention does not in itself guarantee a right to enter or remain in a particular country, although issues may arise where a person is excluded or removed from a country where his close relatives reside or have the right to reside. 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: whether removal or exclusion of a family member from a Contracting State is compatible with the requirements of Article 8 (Art. 8) will depend on a number of factors -   the extent to which family life is effectively ruptured, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control or consideration of public order weighing in favour of exclusion (see Sorabjee v. the United Kingdom, No. 23938/94, Dec. 23.10.95).        The Commission notes M.R.'s previous immigration record, including overstaying his visa, illegally entering the country on two occasions, and lying about his nationality in order to gain reduced educational fees.   The Commission further notes that M.R. was able to appeal against the refusal of the Entry Clearance Officer to grant a visa and that the Immigration Appeal Tribunal found that the adjudicator had considered and weighed all the evidence before her before coming to her decision, and that it was not a proper case in which to grant leave to appeal.        Finally, the Commission notes that the applicant was aware of the fact that M.R. was in the United Kingdom without a valid visa when she concluded a Muslim marriage with him in England, and she must have been aware that his continued stay in the United Kingdom was precarious.        The Commission does not under-estimate the difficulty of the situation in which the applicant finds herself. However, having regard to the above considerations and in particular the fact that the applicant was aware of M.R.'s precarious situation in the United Kingdom prior to concluding a Muslim marriage with him and given M.R.'s repeated disrespect for immigration rules and his dishonesty, the Commission considers there were strong factors of immigration control weighing in favour of exclusion.        In these circumstances the Commission does not consider the facts disclose a lack of respect for the applicant's right to respect for her family life as guaranteed by Article 8 (Art. 8) of the Convention.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant complains under Article 13 (Art. 13) of the Convention.        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        The Commission recalls that the guarantees of Article 13 (Art. 13) apply only to a grievance which can be regarded as "arguable" (cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 14, para. 31).   In the present case, the Commission has rejected the substantive claims as disclosing no appearance of a violation of the Convention.   For similar reasons, they cannot be regarded as "arguable".        It follows that this part of the application 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.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber