CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 septembre 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. 32789/96                       by Harpal Singh PHULL                       against the United Kingdom           The European Commission of Human Rights (First Chamber) sitting in private on 11 September 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            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 22 January 1996 by Harpal Singh PHULL against the United Kingdom and registered on 27 August 1996 under file No. 32789/96;         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 1965 in Tanzania and resident in Greenford. He complains on behalf of himself and his two sons, Dahramjit Singh born in 1994 and Ramandeep Singh born in 1995, both British citizens. He is represented before the Commission by Mr. G. Singh, a solicitor practising in London.         The facts, as submitted by applicant, may be summarised as follows.         The applicant has lived in the United Kingdom since he was six months old.         The applicant's wife, Kulwinder Kaur Phull, an Indian citizen born in India in 1967, arrived in the United Kingdom on 14 May 1985 to marry S. by way of an arranged marriage. A civil and religious ceremony took place. She had been given leave to enter for six months.         The marriage broke down and by the time of Kulwinder Kaur Phull's interview with immigration officers after the expiry of the six month visa, she was living apart from S. On 20 December 1989, a notice of intention to deport was served on her. Her appeal was dismissed following a hearing and on 15 May 1991 the Secretary of State signed the deportation order. On 6 February 1992, Kulwinder Kaur Phull was granted leave to apply for judicial review of a decision of the Secretary of State of 15 October 1991 to maintain the deportation. The proceedings were discontinued in or about September 1993 on the basis of advice from counsel.         On 6 December 1992, Kulwinder Kaur Phull obtained a divorce from S. On 21 April 1993 she married the applicant. On 23 June 1993 she applied for leave to remain on the basis of her marriage. After enquiries and an interview, the application was refused on 28 October 1993.         On 15 March 1994, Dahramjit was born to the applicant and Kulwinder Kaur Phull. On 25 August 1994, the applicant applied for the deportation order to be revoked on the basis of his marriage and the birth of a child. On 7 September 1994, the Secretary of State refused the application. On 8 September, the applicant applied for judicial review of the decision. The application was rejected on 2 November 1994 by the High Court. Leave to appeal to the Court of Appeal was granted on 15 June 1995, principally on points of European Union law, but the appeal was finally rejected on 17 August 1995. The House of Lords refused leave to appeal on 22 November 1995.         On 11 December 1996, a third child was born to Kulwinder Kaur Phull and the applicant.         The applicant has provided a psychiatric report concerning his wife, dated 3 June 1997, in which it is stated that she shows very strong suicidal intentions and has stated that she will definitely kill herself if she is deported, since life would not be worth living without her children whom, as a good mother, she would leave behind her in the United Kingdom where they will be better off. She is described as suffering from a depressive illness for which she is provided with medication and supportive counselling.   COMPLAINTS         The applicant invokes Article 8 of the Convention in respect of the decision to deport his wife on behalf of himself and his children. He points out that he and their children are British citizens who have lived all their lives in the United Kingdom (save six months in his case),that they have no links with India and that he would have little prospect of obtaining employment in India to support the family, whereas he is in employment in the United Kingdom. He submits that he has no intention of going to India and that the removal of his wife will separate the family, and deprive the children of the psychological and emotional support of their mother. It is also alleged that the deportation flagrantly flouts the Maastricht treaty.         The applicant, in a letter submitted on 21 May 1996, has also invoked Article 3 in respect of the inhuman treatment disclosed by the stress and depression which Kulwinder Kaur Phull is suffering and the potential impact on, and irreparable damage to, the children of her removal.   THE LAW   1.     The applicant complains under Article 8 (Art. 8) of the Convention of the threatened deportation of his wife to India.         Article 8 (Art. 8) of the Convention provides :         "1.   Everyone has the right to respect for his private and       family life ...         2.    There shall be no interference by a public authority       with the exercise of this right except such as 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 a State has the right to control the entry and residence of non-nationals in its territory. In this regard the Commission recalls the close connection between immigration control and questions pertaining to public order and the wide margin of appreciation which States enjoy in this regard (see Eur. Court HR, Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, pp. 33-34, para. 67; and Beldjoudi v. France judgment of 26 March 1992, Series A no. 234, p. 27, para. 74).         The Commission also recalls that whilst a right to enter or remain in a particular country is not as such guaranteed by Article 8 (Art. 8) of the Convention (see inter alia No. 9213/80, Dec. 5.5.81, D.R. 24, p. 239; and No. 25439/94, Dec. 5.4.95, D.R. 81-B, p. 142), the exclusion or removal of a person from a country where his close relatives reside or have the right to reside may raise issues under Article 8 (Art. 8) (see inter alia No. 9088/80, Dec. 6.3.82, D.R. 28, p. 160; No. 9285/81, Dec. 6.7.82, D.R. 29, p. 205; No. 23938/94, Dec. 23.10.95, unpublished; No. 24381/94, Dec. 31.8.94, unpublished; and No. 25073/94, Dec. 28.2.96, unpublished).         The Commission recalls that the duty imposed by Article 8 (Art. 8) cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country (see Eur. Court HR, Abdulaziz, Cabales and Balkandali, loc. cit., p. 34, para. 68). The Commission also recalls that whilst the extent of a State's obligations to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved, an essential issue in any such case is whether there are insurmountable obstacles to the spouse having a right of residence following the spouse affected by the decision or order, such as difficulties of language, or where there is little or no prospect that the former will be able to adapt or integrate within the culture or society of the latter's country (see: Eur. Court HR, Beldjoudi v. France, loc. cit, p. 28, paras. 77-78; No. 9088/80, loc. cit.; No. 9285/81, loc. cit.; No. 16152/90, Dec. 13.10.92, unpublished; and No. 24381/94, loc. cit.).         An important though not decisive consideration will also be whether the marriage, albeit manifestly not one of convenience, was contracted at a time when the parties were aware that the immigration status of one of them was such that the persistence of the marriage within the host state would from the outset be precarious. The Commission considers that where this is a relevant consideration it is likely to be only in the more exceptional circumstances that the removal of the non-national spouse will constitute a violation of Article 8 (Art. 8) (cf Eur. Court HR, Abdulaziz, Cabales and Balkandali, loc. cit., p. 34, para. 68; No. 9285/81, loc. cit.; No. 24381/94, loc. cit.; No. 25073/94, loc. cit.).         In the present case, the Commission recalls that the applicant and his children do not themselves have any links with India and that the applicant has employment in the United Kingdom, which he claims would be difficult to find in India. It notes the assertion that he and the children will remain in the United Kingdom, which will result in the separation of the family and threatens to exacerbate stress and anxiety experienced by the applicant's wife Kulwinder Kaur Phull. Nonetheless, the Commission observes that Kulwinder Kaur Phull entered the United Kingdom on limited leave and that on expiry of that leave the decision to deport her was taken. This position was known to both her and the applicant at the time of their marriage and they must be taken as being aware that they had no expectation that Kulwinder Kaur Phull would be granted leave to remain. This was also the situation when the children of the applicant and his wife were born.         The Commission recognises the difficulties which now face the applicant and his family. However notwithstanding the obstacles which the family would face if they accompanied Kulwinder Kaur Phull to India the Commission is not persuaded that these are of such a nature or degree as to render them insurmountable. In particular, the children are of a young and adaptable age.         The Commission does not therefore find that in this regard there are any elements concerning respect for family life which outweigh valid considerations relating to the proper enforcement of immigration controls in the present case. Accordingly the threatened removal of Kulwinder Kaur Phull does not disclose a lack of respect for the applicant or his children's rights to respect for family life guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention. It follows, therefore, that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant has also complained that this situation discloses inhuman treatment of himself, Kulwinder Kaur Phull and their children, invoking Article 3 (Art. 3) which provides:         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."         The case-law of the Convention organs establishes that ill- treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (Art. 3) of the Convention. Further, the Court has held that the suffering occasioned must attain a certain level before treatment can be classified as inhuman. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects (see eg. Eur. Court HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 162).         The applicant refers, inter alia, to the stress caused to his wife and the threatened damage to their children if separated from their mother. The Commission recalls however that it has found above that the deportation is a measure justified for the enforcement of immigration controls. Having regard to the knowledge of both the applicant and Kulwinder Kaur Phull of the latter's precarious immigration status, the difficult dilemma in which the family is now situated derives largely from their decision to marry and found a family in face of a pending deportation order.         In these circumstances, the Commission finds that the hardship which is associated with the deportation cannot be considered as disclosing treatment contrary to Article 3 (Art. 3) of the Convention.         It follows that these complaints must be rejected 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. BUQUICCHIO                                J. LIDDY          Secretary                                 President    to the First Chamber                      of the First Chamber