CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 octobre 1990

.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. 14984/89 by Andrea DE ALWIS against the United Kingdom             The European Commission of Human Rights sitting in private on 5 October 1990, the following members being present:                   MM.   C.A. NØRGAARD, President                      S. TRECHSEL                      F. ERMACORA                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                 MM.   L. LOUCAIDES                      A.V. ALMEIDA RIBEIRO                      M.P. PELLONPÄÄ                   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 16 March 1989 by Andrea DE ALWIS against the United Kingdom and registered on 10 May 1989 under file No. 14984/89;           Having regard to:        -   the report provided for in Rule 47 of the Rules of Procedure         of the Commission;        -   the Commission's decision of 11 May 1989 to bring the         application to the notice of the respondent Government         and invite them to submit written observations on its         admissibility and merits;        -   the observations submitted by the respondent Government on         3 November 1989 and the observations in reply submitted         by the applicant on 26 February 1990;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a citizen of the United Kingdom, born in 1960 in Jamaica, and resident in London.   She has lived in the United Kingdom with her parents since she was five years old.   She is a telephonist by profession and is represented before the Commission by Messrs. Suriya & Co., Solicitors, London.           The facts of the present case, as submitted by the parties, may be summarised as follows:           The application arises out of the refusal of British immigration authorities to allow the applicant's husband to remain in the United Kingdom with her.   Mr. De Alwis is a Sri Lankan citizen of Sinhalese origin, born in 1959.   He first entered the United Kingdom on 12 August 1983 for one month as a visitor.   He told the immigration officer that he was a car mechanic in Saudi Arabia who had come to visit friends and that he was single, had no plans for marriage and had no relatives living in the country.   On 8 September 1983, Mr.   De Alwis applied for leave to remain as a student of motor vehicle engineering at the Willesden College of Technology, sponsored by his uncle who owned a restaurant in the United Kingdom.   He was granted an extension of stay on this basis until 12 September 1984.   On 7 September 1984, he applied to the Home Office for further leave to remain to continue his studies but this application was refused on 25 July 1985 as he had failed to submit, within a reasonable time, evidence that he was enrolled on a full-time course of daytime study in accordance with paragraph 107 of the Immigration Rules (HC 169). He wrote on 29 August 1985 and again on 18 October 1985 that he had not been able to enrol for a course because of lack of funds from his father.   He was told by the Home Office on 5 November 1985 that the Secretary of State was not prepared to reconsider his decision.   His appeal against this decision was dismissed by an adjudicator on 29 January 1986.   He was not represented at the hearing as he had not informed his representatives, at that time the United Kingdom Immigrants Advisory Service, of his change of address.   Leave to appeal to the Immigration Appeal Tribunal was refused on 24 February 1986 and on 4 March 1986 Mr.   De Alwis was advised that he should leave the country.           Mr.   De Alwis did not leave and on 8 September 1986 he was given the opportunity to put forward any factors which he considered might militate against deportation.   In response, on 7 October 1986 his solicitors applied on his behalf for an extension of stay to study business management at the London School of Business and Management Studies.   This application was, however, refused on 24 November 1986 because Mr.   De Alwis appeared to have enrolled on a course of study unrelated to his earlier studies.   On the same day he was served with a notice of intention to deport him.           Mr.   De Alwis appealed against this decision to an adjudicator and at the hearing of his appeal on 8 April 1987 he admitted that he had done nothing between August 1984 and September 1986, that his studies had ceased due to lack of finance and that he was supported by his friends and the applicant, who was then his girlfriend, whom he had known for about two years, having first met her in 1985.   This was the first occasion on which the existence of a relationship with the applicant had been brought to the Home Office's attention.   He said that he was aware that his earlier appeal had been dismissed and that the letter warning him that deportation was being considered had prompted him to start a course of study.   The applicant confirmed at the hearing that she had helped Mr.   De Alwis financially and said that, if his appeal was dismissed, she would marry him before he left the United Kingdom.           Mr.   De Alwis' appeal was dismissed on 6 July 1987.   The adjudicator found that the case did not present any compassionate circumstances outweighing the public interest justifying the boyfriend's deportation.   (The adjudicator referred to the applicant's husband as the boyfriend because that was his status when the case had been heard in early April 1987.)   The adjudicator pointed to the little progress in the boyfriend's studies and found his attitude to his responsibilities "over-casual".   The adjudicator attached little credibility to the boyfriend's evidence, which he found inconsistent. He also found that the boyfriend regarded his relationship with the applicant "as a convenience".   He commented that the boyfriend had been "far from truthful" with the applicant "about his true financial position" and appeared "quite content to be subsidised by (her) and his friends without making any real effort himself to pursue and conclude his studies".   Accordingly he dismissed the appeal.   This decision was upheld by the Immigration Appeal Tribunal on 9 September 1987.           The couple married on 28 April 1987 and the husband applied for leave to remain on that basis.   The couple were interviewed on 16 February 1988 but on 22 March 1988 the Secretary of State concluded that there were no sufficient compelling compassionate reasons for allowing the husband to remain exceptionally.   Further representations were made to the Home Secretary by the applicant's solicitors on 28 July 1988 in the following terms:           "Your decision to deport our client will result in the break         up of a newly married family           (a) as his wife does not wish to go to Sri Lanka through         fear of the ethnic problems in the country.   Our client         is frightened to take his wife as he fears that she would         be mistaken for a Sri Lankan Tamil and both may be         persecuted by the Sri Lankan Sinhalese.   The fact that he         has married a West Indian lady will cut him off socially         and his parents will not entertain him or his wife.   Our         client fears to face his parents, his brother and sisters         and other relatives who will definitely cut him off         socially and these are genuine fears and we would be         grateful that these grounds are considered as exceptional         and compelling.   He has no way of going back to Saudi         Arabia because his contract is over and he objects         therefore to his removal to Sri Lanka.           Our client has not been a burden on the tax payers, and         will not be a burden in the future.   His wife's people         are not prepared to allow their daughter to go with him         and this would mean the end of their marriage.           Their marriage is genuine.   They had been engaged for         about two years prior to marriage and they are devoted         to each other ..."           The Home Secretary replied on 27 September 1988 that no "new or sufficiently compelling factors" had arisen to cause him to reverse the deportation decision which would now be enforced.   A detention and deportation order had been issued on 21 September 1988.           Judicial review proceedings were issued by the applicant's husband on 29 November 1988 and representations were made to the Prime Minister.   She replied on 29 November 1988 upholding the Home Secretary's decision as follows:           "Mr.   De Alwis came to this country in 1983 as a visitor.         He was then allowed to remain as a student but he failed         to produce evidence of studies in accordance with the         Immigration Rules and he admitted doing nothing between         1984 and 1986.   He married after deportation proceedings         had been initiated against him and his marriage gives         him no claim to remain.           You suggested that his removal from the United Kingdom         would be contrary to Article 8 of the European Convention         on Human Rights and mention is made of the case of Berrehab.         However, the Home Office say that there is nothing to prevent         Mr. and Mrs.   De Alwis living together in Sri Lanka as a         family unit and it is Mr.   De Alwis' choice if he goes alone.         Arrangements will be made for Mr.   De Alwis' removal from         the United Kingdom and his wife may accompany him at         public expense."           Leave to apply for judicial review was refused on 10 March 1989.   The application was not renewed before the Court of Appeal.           In the meantime the applicant had become pregnant.   The applicant's solicitors were advised that the husband's removal would be deferred until two months after the birth of the child, which was expected on 20 June 1989.   Mr.   De Alwis was advised to make arrangements to leave the country in late August/early September.   The applicant gave birth to a girl on 15 June 1989.           The applicant and her husband claimed political asylum on 11 August 1989.   The applicant could not be considered for asylum under the terms of the 1951 Convention relating to the Status of Refugees because she is a British citizen and may choose to remain in the United Kingdom.   Mr.   De Alwis' claim was considered under the terms of the Refugee Convention but it was decided in November 1989 that he had not established a well-founded fear of persecution in Sri Lanka.   COMPLAINTS           The applicant complains that the proposed deportation of her husband constitutes violations of Articles 8, 13 and 14 of the Convention.   She fears going to Sri Lanka with her husband due to political and ethnic disturbances there and alleges that no consideration has been given to these factors by the Home Secretary.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 16 March 1989 and registered on 10 May 1989.   After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 11 May 1989.   It decided to bring the application to the notice of the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   The Government submitted their observations, after two extensions of the time limit, on 3 November 1989.   The applicant did not comment on these observations save to remark on 26 February 1990, after the expiry of the time limit and a reminder by the Secretary to the Commission, that the applicant maintained her application together with her original submissions.   The applicant was granted free legal aid for her representation before the Commission on 6 April 1990.   THE LAW   1.       The applicant has first complained that the proposed deportation of her husband to Sri Lanka constitutes a violation of Article 8 (Art. 8) of the Convention, the relevant part of which reads as follows:           "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 ... for the prevention of disorder ..."           The Government have contended that the applicant has failed to exhaust domestic remedies as the application for judicial review was not renewed before the Court of Appeal in March 1989.   Alternatively, they submitted that the complaint was manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           The Commission finds that the applicant has complied with Article 26 (Art. 26) of the Convention.   It notes that the applicant herself could not seek judicial review of the Secretary of State's deportation order or of the decision of the Immigration Appeal Tribunal.   Only her husband was entitled to do so.   Moreover, even assuming that the husband's remedies are in effect those of the applicant, it is clear that a renewed application for judicial review would not have provided an effective means of reviewing the merits of the decision to deport her husband.   The applicant has, therefore, exhausted all effective remedies at her disposal.           Turning to the substantive question, the Commission considers that the present case raises 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. 6.7.82, D.R. 29 p. 205).           However, as the Court held in the case of Mmes Abdulaziz, Balkandali and Cabales, the duties imposed upon States by Article 8 (Art. 8) of the Convention "cannot be considered as extending to a general obligation ... 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" (Eur. Court H.R., judgment of 28 May 1985, Series A no. 94, p. 34 para. 68).           The Commission notes that at the time of the marriage the applicant knew that her husband had already been refused permission to remain in the United Kingdom as a student and that he had unlawfully stayed on.   His acceptance for settlement could not, therefore, be expected in view of the relevant Immigration Rules.   Furthermore the applicant has not shown that there were obstacles to establishing family life in her husband's home country.   She told the adjudicator in April 1987 that, although she did not really wish to live in that country, she would go with her husband if he were deported.   The husband is a member of the Sinhalese majority ethnic group in Sri Lanka, which although affected by the civil disorder existing in that country for some years have not been unduly oppressed by it.   The applicant has not said where her husband comes from in Sri Lanka.   The civil strife in that country has varied widely from region to region and the applicant has not submitted that her husband comes from a particularly vulnerable area or that his family have been endangered.           In these circumstances the Commission concludes that the decision to deport the applicant's husband has not failed to respect the applicant's right to respect for family life, ensured by Article 8 para. 1 (Art. 8-1) of the Convention.   Accordingly this aspect of the case is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant has referred to Articles 13 and 14 (Art. 13, 14) of the Convention in her application.   Article 13 (Art. 13) of the Convention guarantees the right to an effective domestic remedy for a Convention breach and Article 14 (Art. 14) prohibits discrimination in the securement of Convention rights.   However, the applicant has made no submissions in relation to these provisions to indicate how they could have been breached in her case.   Moreover, the Commission finds no evidence in the case-file which discloses any appearance of a violation of these provisions of the Convention.   Accordingly this aspect of the case 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, by a majority,           DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission          President of the Commission                (H.C. KRÜGER)                       (C.A. NØRGAARD)