CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 juillet 1987

.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. 12513/86 by W.J. and D.P. against the United Kingdom             The European Commission of Human Rights sitting in private on 13 July 1987, the following members being present:                      MM. C.A. NØRGAARD, President                         J.A. FROWEIN                         S. TRECHSEL                         F. ERMACORA                         E. BUSUTTIL                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                    Mrs.   G.H. THUNE                    Sir   Basil HALL                    MM.   F. MARTINEZ                         C.L. ROZAKIS                    Mrs.   J. LIDDY                      Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 11 September 1986 by W.J. and D.P. against the United Kingdom and registered on 27 October 1986 under file No. 12513/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The first applicant is a citizen of New Zealand, born in 1953 and resident in Middlesex with the second applicant, who is a citizen of the United Kingdom.   They are both teachers by profession.           They are represented before the Commission by Messrs.   Myers, Ebner & Deaner, Solicitors, London.           The facts as submitted by the applicants, and which are apparent from the official documentation lodged with the application, may be summarised as follows:           The first applicant went to the United Kingdom in October 1979 and was given six months' leave of entry with no restriction on employment.   After a short absence from the country, he returned on 7 January 1980 and was given six months' further leave of entry without conditions.   On 7 April 1980 the first applicant applied to remain in the United Kingdom as a working holiday-maker.   This leave was granted at periodic intervals until 8 July 1983 when the final extension was accorded, because the maximum period for this category of leave is five years.           On 1 October 1984 the applicants' solicitors wrote to the Home Office requesting indefinite leave to remain on behalf of the first applicant.   The grounds of the application were that he had a permanent teaching contract, and that since April 1982 he had been living with the second applicant in a stable homosexual relationship. Alternatively a further periodic extension of leave was requested. The application was referred to the Department of Employment, but they refused to approve the first applicant's employment.   The Home Secretary considered the question of the stable homosexual relationship, but decided that the Immigration Rules made no provision for a person to remain in the United Kingdom on that basis.   Having considered all the circumstances, the Home Secretary refused the application on 21 August 1985, under the Statement of Changes in Immigration Rules HC 169 para. 100.   The relevant part of this paragraph provides that visitors who have been given leave of entry without a work prohibition may only have their leave varied for work if the Department of Employment approves the proposed employment. Where the Department withholds approval, an extension of leave is to be refused.           The first applicant appealed against the Secretary of State's decision to an Adjudicator.   The Adjudicator dismissed the appeal on 12 June 1986, upholding the lawfulness of the Secretary of State's decision under the Immigration Rules, and declining jurisdiction to review the Secretary of State's refusal to exercise his overriding discretion in leave matters in the first applicant's favour (cf. Section 4 Immigration Act 1971).   Leave to appeal to an Immigration Appeal Tribunal was apparently refused on 18 July 1986.   The first applicant is now faced with imminent deportation.   The second applicant states that he would not be admitted to New Zealand to work as enquiries have revealed that he would not be considered eligible for the "occupational priority list".   COMPLAINTS           The applicants complain of violations of Articles 1, 8 and 14 of the Convention in respect of the refusal by immigration authorities to allow the first applicant to remain in the United Kingdom on the basis of his stable homosexual relationship with the second applicant, and in respect of the absence of any recognition in the Immigration Rules of such a relationship.           It is submitted on the applicants' behalf that no individual consideration was given to their case and that there was no hearing of these issues.   They are both useful, law-abiding citizens, hardworking and well-balanced, living quietly together as a family unit.           The Immigration Rules and legislation make no provision for homosexual relationships, whilst recognising the heterosexual relationships of married couples and fiancés.   However, United Kingdom law permits homosexual acts in private between consenting adults (cf.   Sexual Offences Act 1967).   Thus no issue of public policy or morality arises which might justify discrimination against homosexuals (cf.   Eur.   Court H.R., Marckx judgment of 13 June 1979, Series A no. 31, Dudgeon judgment of 22 October 1981, Series A no. 45 and No. 10581/83, Norris v. the United Kingdom, Dec. 16.5.85 to be published in D.R.).           The applicants claim that the failure to treat their relationship in the same manner as that of heterosexuals under the Immigration Rules is contrary to Articles 8 and 14 of the Convention. There has been an unjustified interference with their private life in requiring the first applicant to leave the country despite his irreproachable behaviour (cf.   Brüggemann and Scheuten v. the Federal Republic of Germany, Comm.   Report 12.7.77, D.R. 10 p. 100, para. 55 and Eur.   Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94).           As regards the Commission's decision in No. 9369/81 (Dec. 3.5.83, D.R. 32 p. 220) concerning a homosexual couple and a deportation question, the applicants contend that, in contrast to that case, no careful consideration has been given to their personal situation by the immigration authorities and they are not professionally mobile.   They claim to have made enquiries with the New Zealand authorities which disclosed that their transfer to that country is impossible.   The present case seeks to challenge the discrimination in the Immigration Rules themselves.           As regards the Commission's decision in No. 11716/85 (Dec. 14.5.86 unpublished) concerning the question of a lesbian unable to benefit from her partner's tenancy rights, the applicants, considering that the Commission's rejection of that case was justified, contend that no comparison can be made between that case and the present deportation issues.   THE LAW   1.       The applicants complain that the refusal to allow the first applicant to remain in the United Kingdom with his homosexual partner, the second applicant, constitutes an unjustified interference with their private life, contrary to Article 8 (Art. 8) of the Convention, and discrimination, compared with heterosexual couples, contrary to Article 14 (Art. 14) of the Convention.   They have also invoked Article 1 (Art. 1) of the Convention.   Their complaints relate to the immigration laws themselves as well as to their application in this case.   2.       The relevant parts of the provisions of the Convention invoked by the applicants provide as follows:           Article 1 (Art. 1)           "The High Contracting Parties shall secure to everyone         within their jurisdiction the rights and freedoms defined in         Section 1 of this Convention."           Article 8 (Art. 8)           "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 is         in accordance with the law and is necessary in a democratic         society in the interests of ... the economic well-being of         the country, for the prevention of disorder or crime ... "           Article 14 (Art. 14)           "The enjoyment of the rights and freedoms set forth in this         Convention shall be secured without discrimination on any         ground such as sex ... or other status."   3.       As regards the applicants' citation of Article 1 (Art. 1) of the Convention, the Commission refers to its constant case-law that Article 1 (Art. 1) contains a purely general undertaking and that, even in conjunction with other Articles, it should not, in principle, be seen as a provision which can be the subject of a separate breach of the Convention (cf.   No. 5493/72, Handyside v. the United Kingdom, Dec. 4.4.74 Collection 45 p. 20 and Ireland v. the United Kingdom, Comm. Report 25.1.76, Eur.   Court H.R. Series B no. 23-I pp. 491-492).           In the absence of any explanation from the applicants as to why their claims should be considered separately under Article 1 (Art. 1) of the Convention, independently of the other allegations they have made, the Commission concludes that this aspect of the case does not constitute a separate issue requiring determination.   4.       As regards the applicants' complaints under Article 8 (Art. 8) of the Convention, the Commission recalls its constant case-law that the Convention does not guarantee a right, as such, to enter or remain in a particular country.   However, the Commission has also held that, in certain circumstances, the exclusion of a person from a country where his close relatives reside may raise a family life issue under Article 8 (Art. 8) of the Convention (cf. 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. 9258/81, Dec. 6.7.82, D.R. 29 p. 205).           The applicants contend that their stable relationship is comparable with family life and merits similar protection as private life under Article 8 (Art. 8) of the Convention.   They claim that the absence of consideration for homosexual relationships in the relevant Immigration Rules, the alleged absence of individual consideration of their case by the immigration authorities, and the authorities' actual refusal to recognise that relationship by allowing the first applicant to remain in the United Kingdom with the second applicant, violate their right to respect for private life ensured by Article 8 (Art. 8) of the Convention.           The Court and the Commission have previously held that homosexual relationships do not fall within the ambit of family life, but rather fall within the notion of private life under Article 8 (Art. 8) of the Convention (cf.   Eur.   Court H.R. Dudgeon judgment of 22 October 1981, Series A no. 45 para. 41 and No. 9369/81, Dec. 3.5.83, D.R. 32 p. 220).   It is clear that a refusal to allow a person to remain in a country where he has been living and working for several years must result in a disruption of his private life.   However, this inevitable disruption cannot, in principle, be regarded as an interference with the right to respect for private life, ensured by Article 8 (Art. 8) of the Convention, unless the person concerned can demonstrate that there are exceptional circumstances in his case justifying a departure from that principle (cf.   No. 10427/83, Dec. 12.5.86 to be published in D.R.). Accordingly, the Commission finds that the absence in United Kingdom Immigration Rules of settlement rights for non-nationals in respect of their stable, private relationships, other than family relationships, does not, of itself, disclose any appearance of a violation of Article 8 (Art. 8) of the Convention.           As regards the factual circumstances of the present case, the Commission notes that the applicants have had a stable homosexual relationship and have lived together since April 1982.   However, the first applicant entered that relationship in the knowledge that his immigration status was unsettled and that he would only have a maximum of two further years' leave to remain in the United Kingdom as a working holiday-maker.   Apart from this relationship with the second applicant and his necessarily short-term employment because of his limited immigration status, the first applicant has no other ties with the United Kingdom.   The Commission finds no substantiation in this case for the applicants' claim that no individual consideration has been given to their particular circumstances by the Secretary of State in exercise of his overriding discretion pursuant to Section 4 of the Immigration Act 1971.   Nor have the applicants provided any substantiation of their claim that it would be impossible to live together in New Zealand or elsewhere.   At no time have the applicants been prevented from developing their relationship.           In the light of the above considerations, the Commission concludes that the present case does not disclose any exceptional circumstances which might justify a departure from the aforementioned general principle.   The Commission concludes, therefore, that the refusal to allow the first applicant to remain in the United Kingdom does not constitute an interference with the applicants' right to respect for private life, ensured by Article 8 (Art. 8) of the Convention.   It follows that this aspect of the application is manifestly ill-founded.   5.       Finally, the applicants have complained of discrimination contrary to Article 8 (Art. 8) of the Convention, read in conjunction with Article 14 (Art. 14), because homosexual relationships do not receive the same protection under the Statement of Changes in Immigration Rules HC 169 as heterosexual relationships.           It is true that these Immigration Rules make no provision for the reunification of homosexual couples in the United Kingdom, whereas they do permit, inter alia, certain foreign spouses and fiancés to join their partners in the United Kingdom, where the latter have the right of abode.           The Commission has had occasion to consider such policy distinctions between homosexual and heterosexual couples.   In a case concerning a lesbian relationship and housing policies, the Commission decided as follows:           "The Commission accepts that the treatment accorded to the         applicant was different from the treatment she would have         received if the partners had been of different sexes.           The Commission finds that the aim of the legislation in         question was to protect the family, a goal similar to the         protection of the right to respect for family life         guaranteed by Article 8 (Art. 8) of the Convention.   The aim itself         is clearly legitimate.   The question remains, however, of         whether it was justified to protect families but not to give         similar protection to other stable relationships.   The         Commission considers that the family (to which the         relationship of heterosexual unmarried couples living         together as husband and wife can be assimilated) merits         special protection in society and it sees no reason why a         High Contracting Party should not afford particular         assistance to families.   The Commission therefore accepts         that the difference in treatment between the applicant and         somebody in the same position whose partner had been of the         opposite sex can be objectively and reasonably justified."         (No. 11716/85, Dec. 14.5.86 to be published in D.R.)           The Commission adopts these general considerations for the purposes of the present case and the immigration laws which are involved here.   With regard to the principle of proportionality (Eur. Court H.R., Belgium Linguistic judgment of 23 July 1968, Series A no. 6, p. 34) the Commission finds that no issue of proportionality arises between the aims of the relevant Immigration Rules and their application to the applicants, as the family life provisions of the Rules did not apply in this case.   The first applicant was refused leave to remain further in the United Kingdom, not because he was a homosexual, but because he was not in employment approved by the Department of Employment (Statement of Changes in Immigration Rules HC 169 para. 100).   In this respect the Commission considers that the principle of proportionality between the means employed and the aim sought to be realised, i.e. the economic well-being of the country, was respected.           After its examination of this aspect of the application the Commission concludes that it discloses no appearance of discrimination contrary to Article 14 (Art. 14) of the Convention.   Accordingly this part of the application must also be rejected as being manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                  President of the Commission            (H.C. KRÜGER)                                 (C.A. NØRGAARD)