CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 octobre 1992

.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 }                              FIRST CHAMBER                         AS TO THE ADMISSIBILITY OF                          Application No. 17712/91                             by Najim ULLAH                       against the United Kingdom                                 __________           The European Commission of Human Rights (First Chamber), sitting in private on 14 October 1992, the following members being present:                MM.   J.A. FROWEIN, President of the First Chamber                   F. ERMACORA                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK              Sir   Basil HALL              Mr.   C.L. ROZAKIS              Mrs. J. LIDDY              MM.   M. PELLONPÄÄ                   B. MARXER                Mr.   M. de SALVIA, Secretary to the First 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 3 January 1991 by Najim ULLAH against the United Kingdom and registered on 23 January 1991 under file No. 17712/91;         Having regard to the report provided for in Rule 47 of the Commission's Rules of Procedure;         Having deliberated,         Decides as follows: THE FACTS         The applicant is a citizen of Bangladesh, born in 1935 and resident in Keighley, Yorkshire.   He is represented before the Commission by Messrs James & Co., Solicitors, Bradford.         The facts as submitted by the applicant may be summarised as follows:         The applicant has married twice.   His first wife, Jaharun Nessa, bore him two sons, Atik Ullah, born in May 1961, and Kothib Ullah, born in December 1963.   These children first applied for entry clearance to join the applicant in 1972, when they were aged 11 and 9 years respectively.   They were refused entry clearance because the British immigration authorities were apparently not satisfied on the evidence available that they were related as claimed to the applicant.   The applicant appealed against the refusal but later withdrew the appeal in 1976 after seeking legal advice.   Since then, scientific evidence has become available (date unknown) to prove that these two young men are the applicant's children (DNA test not submitted with application) and in 1988 they re-applied for entry clearance.   It was refused, however, because they were both by then over the age of 18 and no longer dependent children under the Immigration Rules.   Moreover, they did not fall within the category of "distressed relatives" or any other entry clearance category (refusal decision not submitted with the application).         In June 1989 a Statement was delivered in Parliament by the Secretary of State regarding those people who had been refused entry clearance as children, because there had been no satisfactory evidence as to the claimed family relationship, but who had subsequently been able to prove the family link by DNA blood testing.   He made it clear that the Immigration Rules only envisaged the entry of children and dependents and that, as the earlier decisions had been taken in good faith, a person over the age of 18 re-applying for entry to the United Kingdom to join a family on the basis of new DNA evidence would only be admitted in the following circumstances:         "a.   that he was refused entry clearance as a child on            relationship grounds;         b.    that DNA evidence establishes that he was, after all,            related as claimed;         c.    that he is still wholly or mainly dependent on his sponsor            in the United Kingdom; and         d.    that there are compassionate circumstances in his case."         It seems that in the light of this Statement the applicant requested the Secretary of State to review his earlier decision.   By a letter dated 19 August 1990 the Secretary of State apparently informed the applicant that he would not exercise his discretion in favour of the two young men (letter not submitted with the application).           According to translations of letters from the applicant's first wife and the two sons to the applicant, it seems that the family in Bangladesh live in close contact with other relatives and work land. They have enough money to live.   The applicant states that he sends them money, which has included funds to purchase land.   He also states that his sons have no skills and do not actually do any of the farming work on the property, which has recently been badly affected by flooding.   The family have oxen which they use to plough the land.     COMPLAINTS         The applicant complains, without specifying any Convention provision, that the United Kingdom has failed to put right or mitigate the wrong decision of refusing entry clearance to his sons in 1976 and again in 1990.     THE LAW         The applicant complains of the refusal of entry clearance by the British immigration authorities to allow his two sons to join him in the United Kingdom.         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 Article 8 (Art. 8) of the Convention, para. 1 of which guarantees inter alia, the right to respect for family life (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. 5.7.82, D.R. 29 p. 205).         However, in examining cases of the present kind the Commission's first task is to consider whether a sufficient link exists between the relatives concerned as to give rise to the protection of Article 8 (Art. 8) of the Convention (cf. No. 9492/81, Dec. 14.7.82, D.R. 30 p. 232).   Generally, the protection of family life under Article 8 (Art. 8) involves cohabiting dependents, such as parents and their dependent, minor children.   Whether it extends to other relationships depends on the circumstances of the particular case.   Relationships between adults, a father and his 28 and 31 year old sons in the present case, would not necessarily attract the protection of Article 8 (Art. 8) of the Convention without evidence of further elements of dependency, involving more than the normal, emotional ties (No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).         The Commission understands the applicant's frustration arising from the initial refusal in 1976 to grant entry clearance before his relationship with his sons could be proved by DNA blood testing.   If they could have proved their relationship earlier the sons would have been likely to have been granted entry to the United Kingdom.   However, no allegation of bad faith on the part of the immigration authorities has been made by the applicant.   In this connection the Commission recalls its constant case-law that such verification procedures, as existed in the United Kingdom in 1976 and which gave immigrants a fair opportunity to present their family life claims, satisfied the   requirements of Article 8 (Art. 8) of the Convention (No. 8378/78, Kamal v. the United Kingdom, Dec. 14.5.80, D.R. 20 p. 168).   The Commission considers therefore that its examination of the case under Article 8 (Art. 8) of the Convention must be limited to the applicant's present day circumstances and the nature of his relationship with his sons now.         As regards the facts of the present case, the Commission notes that the sons have strong ties with Bangladesh, where they have lived all their lives with their mother.   The family apparently has land, which they farm and from which are able to subsist.   No evidence has been provided, apart, from letters disclosing normal family affections, which indicates that there exists a sufficiently close link between the applicant and his sons which could be deemed to require the protection afforded by Article 8 (Art. 8) of the Convention to family life.         The Commission concludes that the present case does not disclose any appearance of a breach of the right to respect for family life, within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention. Accordingly the application must 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 unanimously         DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the First Chamber         President of the First Chamber          (M. de SALVIA)                              (J.A. FROWEIN)