CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 janvier 1998

.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. 37003/97                       by Soomattee SCHNEIDER                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 15 January 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  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 13 June 1997 by Soomattee SCHNEIDER against the United Kingdom and registered on 23 July 1997 under file No. 37003/97;        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 Mauritius and was born in 1956. She is currently resident in London. She is represented before the Commission by Mr. B. Stuart, a solicitor practising in Essex.   The facts of the application, as submitted by the applicant's representative, may be summarised as follows.   A.    The particular circumstances of the case        The applicant entered the United Kingdom as a visitor on 9 February 1992 with a six month visa.   In May 1992 she met Christopher Schneider, a British citizen, through a marriage bureau and they married on 22 July 1992.   Six days after the marriage she applied for residence, on the ground of that marriage.   On 22 June 1993 the applicant was granted permission to reside in the United Kingdom for 12 months, in view of her marriage. The applicant's husband was diagnosed with cancer soon after their marriage.   The applicant lived with her husband throughout their marriage and visited him daily during his frequent stays in hospital.   During this period the applicant became close to her husband's family, in particular to her mother-in- law.   On 14 February 1994 the applicant's husband died.        On 18 May 1994 the applicant applied for indefinite leave to remain on the basis of the marriage.   On 13 December 1994 that application was refused by the Secretary of State.   The Secretary of State's reasons for refusal were set out in the explanatory note to the decision as follows:        "The Secretary of State then gave consideration to the      application for indefinite leave to remain as the wife of Mr.      Schneider.   However, Mr. Schneider had died one month prior to      the application being made and consequently the Secretary of      State was not satisfied that the marriage had not been      terminated.        The Secretary of State also considered whether to exercise his      discretion in the appellant's favour, but in view of the fact      that the appellant had spent 36 years in Mauritius and only      3 years in the United Kingdom, and furthermore had substantial      ties with Mauritius, the Secretary of state could find no      circumstances of a sufficiently exceptional or compassionate      nature to warrant exercising that discretion.   The Secretary of      State also considered whether to exercise his discretion      exceptionally outside the Immigration Rules but was not prepared      to do so.   The Secretary of State therefore refused the      application on 13 December 1994 under paragraph 132."        The applicant appealed against the decision of the Secretary of State to an Adjudicator.   There was an oral hearing before the Adjudicator, Mr. Watkins, on 19 December 1995, the applicant being represented by counsel.   Both the applicant and her mother-in-law gave evidence at this hearing.        The adjudicator held in a written determination dated 15 January 1996, that in law the appeal must fail under paragraph 132.   However he made a recommendation in the following terms:        "On the basis of what I heard and the letters from other members      of the family I recommend to the Secretary of State that in the      particular circumstances of this sad case, he should consider      granting the appellant exceptional leave to remain so that she      can tend her late husband's grave and remain part of his family."        In February 1996 the applicant was informed by letter that the Secretary of State refused the recommendation, on the basis that there were insufficient exceptional compassionate grounds to reverse his previous decision.   Furthermore the Secretary of State was not prepared to exercise his discretion by granting a limited leave to remain outside the Immigration Rules.        On 4 April 1996 the applicant's representatives wrote to the Secretary of State, requesting a reconsideration of the applicant's request.   This request included the statements of several members of the applicant's husband's family,   all of whom strongly supported her application, stating that she had shown great devotion to her deceased husband and was considered part of the family. On 7 May 1996 the Secretary of State refused to alter his decision.   In his letter of refusal to the applicant's representatives the Secretary of State made the following comments:        "... in the light of your representations and others received on      Mrs Schneider's behalf we have again reviewed the case on a      discretionary basis outside the normal requirements of the      Immigration Rules.   However, whilst I sympathise with      Mrs Schneider's situation and can understand that she has grown      close to her husband's family I am still not persuaded that these      constitute sufficiently compelling or compassionate factors to      warrant reversing the original decision to refuse Mrs Schneider's      application for settlement.   In reaching this decision I have      taken account of the relatively short time that she has spent      here and, although she has her husband's family here, she had no      close relatives of her own or property in the United Kingdom.      Furthermore, she has her own parents and eleven brothers and      sisters in Mauritius to whom she could turn to for support at      this sad time."        The applicant applied for judicial review of the Secretary of State's refusal to accede to the recommendation.   An oral hearing was held before Mr. Justice Dyson of the High Court on 19 December 1996, the applicant being represented by Counsel. Leave to apply for judicial review was refused.   B.    The relevant domestic law        The Immigration Rules state in so far as relevant, as follows:        "132.        A person who was admitted for a limited period or      given an extension of stay, as the spouse of a person settled      here, may have the time limit on their stay removed at the end      of that period if the Secretary of State is satisfied that the      marriage has not been terminated and that each of the parties has      the intention of living permanently with the other as his or her      spouse."   COMPLAINTS        The applicant complains that to oblige her to leave the United Kingdom, would constitute a violation of Articles 3 and 8 of the Convention.   THE LAW   1.    The applicant complains that refusal to allow her to stay in the United Kingdom would amount to inhuman or degrading treatment.        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 recalls that:        "ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (Art. 3).   The assessment of this minimum is, in the nature of things, relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and in some cases, the sex, age and state of health of the victim etc. " (Eur. Court HR, Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25 p. 65, para. 162).        The Commission considers that in the circumstances of the present case the effect on the applicant of the refusal to allow her to continue to reside in the United Kingdom, does not attain the level of severity required in order to constitute a breach of Article 3 (Art. 3) 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.   2.    The applicant complains that to separate her from her deceased husband's family, constitutes an interference with her family life in breach of Article 8 (Art. 8) of the Convention.        Article 8 (Art. 8) of the Convention provides as follows:        "1.    Everyone has the right to respect for his private and      family life, his home and his correspondence.        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 under this Article 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 considerations of public order weighing in favour of exclusion (see Sorabjee v. the United Kingdom, No. 23938/94, Dec. 23.10.95).        The Commission notes that the applicant's case was considered by the Secretary of State on more than one occasion, and by the High Court in an application to seek judicial review of the Secretary of State's decision.   The Commission notes the relatively short time that the applicant had spent in the United Kingdom (since 1992); the fact that, apart from her deceased husband's family, she had no close relatives of her own in the United Kingdom and that she had her own parents and eleven brothers and sisters in Mauritius.   The Commission further notes that these factors were considered by the Secretary of State who also acknowledged that the applicant had grown close to her deceased husband's family, prior to his refusal to exercise his discretion to grant permission to stay.        The Commission considers that the facts of the case do not disclose a lack of respect for the applicant's 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.        For these reasons, the Commission, unanimously,          DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                M.P. PELLONPÄÄ      Secretary                                     President to the First Chamber                          of the First Chamber