CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 1994

.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. 23974/94                       by Romana Valdez BALBASTRO and others                       against the United Kingdom         The European Commission of Human Rights (First Chamber) sitting in private on 29 June 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              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 3 February 1994 by Romana Valdez Balbastro and others against the United Kingdom and registered on 26 April 1994 under file No. 23974/94;         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 first applicant is a citizen of the Philippines born in 1944. The second applicant, also a citizen of the Philippines, was born in 1949 and has indefinite leave to remain in the United Kingdom.   The third and fourth applicants are two of the second applicant's children by his first marriage.   They are also Philippines citizens, have indefinite leave to remain in the United Kingdom, and were born in 1970 and 1972 respectively.   The applicants have lived together as a family since May 1991.   The facts of the case, as submitted by the applicants' representative, Mr. M. Penrose of Messrs. Winstanley-Burgess, solicitors, London, may be summarised as follows.         On 27 November 1992 an immigration officer reported to the Home Secretary that the first applicant was liable to be deported as an overstayer, her initial six months' leave to remain in the country having expired two years and 10 months previously.   The report referred to a "bigamous marriage" the first applicant had contracted with the second applicant on 8 May 1991, and to a declaration made by the first applicant before her marriage on that date that she was a spinster. Account was taken of an application for leave made by the first applicant's representatives, but it was felt that deportation was the appropriate course.         The Secretary of State decided on 25 January 1993 to make a deportation order.         The applicant's appeal to an adjudicator was limited by virtue of Section 5 of the Immigration Act 1988 to consideration of whether on the facts of the case there was "... in law no power to make (it) for the reasons stated in the notice of the decision".   It was dismissed on 13 July 1993.   The Immigration Appeal Tribunal dismissed the first applicant's appeal on 30 November 1993, confirming the adjudicator's view that he could not consider questions of procedural unfairness.         On 20 December 1993 counsel advised that neither the decision of 27 November 1992 nor the Secretary of State's confirmation on 22 September 1992 of that decision could be challenged by way of judicial review.   COMPLAINTS         The applicants submit that as they have been living together as a family since May 1991, they must be considered as a "family" within the meaning of Article 8 of the Convention.   They submit that the first applicant genuinely thought that, as she was no longer living with her first husband in the Philippines, she was free to marry the second applicant.   They regard the interference with their rights to respect for their family life, which has been brought about by the decision to deport the first applicant, and her imminent deportation, as not "necessary in a democratic society".   They point out that, if deported, the first applicant will not be eligible to return for 10 years, and an application to revoke a deportation order will generally not be granted unless the person has been absent from the United Kingdom for at least three years from the making of the order.   If the second applicant were to accompany the first applicant, he would lose his settled status if away from the United Kingdom for over two years.         The applicants also allege a violation of Article 13 of the Convention because of the limited nature of the appeal which was open to her by virtue of Section 5 (2) of the Immigration Act 1988.   THE LAW   1.     The applicants allege a violation of Article 8 (Art. 8) of the Convention.   Article 8 para. 1 (Art. 8-1) of the Convention provides as follows.         "Everyone has the right to respect for his private and family       life, his home and his correspondence."         The present case may raise 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. 8.7.82, D.R. 29, p. 205).         Article 8 (Art. 8) of the Convention presupposes the existence of a family life and at least includes the relationship that arises from a lawful and genuine marriage.   Even assuming that the relationship between the first and second applicants falls into this category, the application is in any event inadmissible for the following reasons.         The Commission recalls that 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.   The Court has held that Article 8 (Art. 8) does not impose a general obligation on States to respect the choice of residence of a married couple or to accept the non-national spouse for settlement in that country (Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 94, para. 68).         The Commission notes that the first applicant entered the United Kingdom with a six-month leave to enter, and that on its expiry she remained in the country.   She cannot show any particular hardship if required to return to the Philippines.   In particular, the second, third and fourth applicants are all Philippines citizens, and free to join or visit her if they wish.         In these circumstances the Commission concludes that the decision to deport the first applicant has not failed to respect the applicants' right to respect for family life, ensured by Article 8 para. 1 (Art. 8-1) of the Convention.         Accordingly, this part of the case is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicants also allege a violation of Article 13 (Art. 13) of the Convention.   Article 13 (Art. 13) provides as follows.         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy before a       national authority notwithstanding that the violation has been       committed by persons acting in an official capacity."         The Commission recalls that Article 13 (Art. 13) cannot be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention: the grievance must be an arguable one in terms of the Convention.   The European Court of Human Rights has pointed to the link between the notion of "arguable claim" in its own case-law and the notion of "manifestly ill-founded" in Article 27 (Art. 27) of the Convention (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, paras. 52 and 54). The Commission has found the applicants' claims under Article 8 (Art. 8) to be manifestly ill-founded.   It also finds the claims under Article 13 (Art. 13) to be not arguable.         It follows that this part of the application is also 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.F. BUQUICCHIO)                        (A. WEITZEL)