CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1997

.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. 31762/96                       by Khaleda Miah and Nanu Miah                       against the United Kingdom          The European Commission of Human Rights (Second Chamber) sitting in private on 21 May 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms.    M.-T. SCHOEPFER, 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 7 March 1996 by Khaleda Miah and Nanu Miah against the United Kingdom and registered on 6 June 1996 under file No. 31762/96;        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 Bangladeshi national who was born in 1975. The second applicant, who was born in Bangladesh in 1968 but has been lawfully settled in the United Kingdom since 1976 and is a British citizen by naturalisation, is the husband of the first applicant. Both applicants are currently resident in Croydon. Both are represented before the Commission by Messrs Coningsbys, solicitors practising in Croydon.        The facts, as submitted by applicants, may be summarised as follows.        On 17 July 1990 the first applicant and her mother were granted leave to enter the United Kingdom as visitors for a period limited to 6 months. The first applicant had, prior to entering the United Kingdom, been living in Bangladesh with her mother where the latter, who was born on 15 June 1937, owned 2 shops and some arable land. With the exception of her mother and two maternal uncles, who lived in a neighbouring village, the first applicant had no close relatives living in Bangladesh when she left. Both her sisters settled in the United Kingdom shortly after the death of their father on 13 December 1981. Her brother, who is now settled in the United Kingdom, was working abroad.        On 24 September 1990 the first applicant and her mother, sponsored by the applicant's sister R.J., applied for indefinite leave to remain in the United Kingdom. On 8 May 1991 the Secretary of State refused their application stating :        "... in view of the fact that your mother told the Entry      Clearance Officer that she was financially independent and      that she maintained close contact with her brothers, the      Secretary of State is not satisfied that you are ...      financially, emotionally or physically dependent upon your      sister here, and that you are without close relatives to      turn to in your own country."        The first applicant and her mother appealed against the decision of the Secretary of State. The appeal was dismissed by the Adjudicator on 11 June 1992. Leave to appeal to the Immigration Appeal Tribunal was refused by the Tribunal on 14 July 1992.        On 6 November 1992 the Secretary of State served the applicant and her mother with a Notice of Intention to Deport pursuant to section 3(5)(a) of the Immigration Act 1991. The first applicant and her mother appealed against the decision of the Secretary of State to deport them. On appeal the jurisdiction of the Adjudicator was limited under s. 5 of the Immigration Act 1991 to determining whether the reasons given by the Secretary of State for his decision were sufficient in law to allow the Secretary of State to deport the applicant. On 23 April 1993 the Adjudicator answered this issue in the affirmative. At the appeal the first applicant and her mother also sought to persuade the Adjudicator to recommend that the Secretary of State reconsider his decision on the grounds that, contrary to the position as it appeared on the face of her mother's answers to the Entry Clearance Officer when applying for leave to enter the United Kingdom, the true position was that the first applicant's mother was financially and emotionally dependent on her two daughters then living in the United Kingdom. The Adjudicator, expressing doubts as to the credibility of the first applicant's mother, declined to make any recommendation to the Secretary of State.        On 20 June 1994 the Secretary of State signed a deportation order against the first applicant. The order was not served on the first applicant until some 12 months later on 26 June 1995. In the meantime the first applicant had, on 19 November 1995, married the second applicant, whom she had met shortly after her arrival in the United Kingdom. On 30 November 1995 a child was born to the couple.        In light of these changed circumstances the first applicant applied to remain in the United Kingdom as the spouse of a British citizen. By letter dated 26 October 1995 the Secretary of State notified the first applicant that notwithstanding her changed circumstances he was not prepared to allow her to remain in the United Kingdom, but that he would, in view of the impending birth of her child, agree to defer making arrangements for her removal until 31 March 1996. In giving his reasons the Secretary of State stated that:        "... <having> considered <the first applicant's> case      carefully in the light of the known circumstances ... <the      Secretary of State> is not persuaded that <the first      applicant> should be allowed to remain on the basis of her      marriage nor that there are sufficient compelling      compassionate circumstances in allowing her to remain      exceptionally.        In reaching this conclusion the Secretary of State has      taken into account the fact that <the first applicant> has      remained in the United Kingdom without leave since      5 June 1991 and was served with notice of intention to      deport her on 5 November 1992. A deportation order was      subsequently signed against her on 20 June 1994 and served      on 26 June 1995. Furthermore, although her husband is a      British citizen, the relationship has not subsisted for      over 2 years and clearly took place after the commencement      of enforcement action. Moreover, as both <the first and      second applicants> entered into the marriage in the full      knowledge that <the first applicant> was the subject of      deportation proceedings, they can have no expectation that      the marriage would provide <the first applicant> with a      claim to remain in the United Kingdom. It is consequently      not considered unreasonable despite <the second      applicant's> time in this country, to expect him to      accompany his wife to Bangladesh. The <first applicant's>      application is therefore refused."        By letter dated 27 November 1995 the first applicant through her solicitor made representations to the Secretary of State that the deportation of the applicant would amount to a breach of Article 8 of the Convention. The Secretary of State responded by letter dated 7 December 1995 that having reviewed the first applicant's representations he was not persuaded to allow the first applicant to remain. By letter dated 5 January 1996 the first applicant through her solicitor made further representations to the Secretary of State setting out the implications for herself and her family in the event of her deportation, in particular that both the first and second applicants had substantial family ties in the United Kingdom; that the second applicant, who had lived in the United Kingdom since aged eight, had no relatives or friends in Bangladesh and would experience tremendous difficulty in finding work and adjusting to life in Bangladesh; and that their child would not receive the same level of education that she would have received in the United Kingdom. The Secretary of State responded by letter dated 6 February 1996 stating that "he was not persuaded that any new factors of a sufficiently compelling or compassionate nature had been raised to justify deferring enforcement action beyond 31 March 1996."        Since the application to remain within the United Kingdom as the spouse of a British citizen was made whilst the first applicant had no extant leave to remain in the United Kingdom she had no right of appeal against the decision of the Secretary of State under the Immigration Act 1991. On 2 March 1996 the first applicant obtained counsel's opinion that the prospects of her succeeding in obtaining leave to apply for judicial review of the Secretary of State's decision were so low as not to justify the granting of legal aid.     COMPLAINTS        The applicants invoke Article 8 of the Convention. The applicants complain that the decision to remove the first applicant from the United Kingdom amounts to a lack of respect for their private and family life in breach of Article 8 para. 1 of the Convention. The applicants complain that it is unreasonable to expect them to move and settle in Bangladesh. Specifically the applicants point to the fact that the second applicant, who is a British citizen by naturalisation having entered the United Kingdom in 1976 at the age of eight, has substantial family, social and cultural ties with the United Kingdom. His family is resident and settled in the United Kingdom. He does not have any close relatives or family living in Bangladesh, nor does he have any experience of adult life there. He has established his own restaurant business which provides sufficient income to support himself, the first applicant and their child. In Bangladesh he would experience difficulty in obtaining employment. The second applicant also has substantial family ties with the United Kingdom in that his two sisters and brother are resident there. As regards their daughter, the applicants mention the fact that she is unlikely to receive the same level of education as she would have done in the United Kingdom.     THE LAW        The applicants' principal submission is that it would be unreasonable to expect the second applicant to settle in Bangladesh in that he has lived in the United Kingdom since aged eight, his close family lives within the United Kingdom, he has no close family or friends in Bangladesh, he has no adult experience of life in Bangladesh and would experience difficulty in adapting to life there, and in finding work. The applicants also point to the substantial family ties which the first applicant has within the United Kingdom and state that their child is likely to receive a poor standard of education in Bangladesh. The applicants invoke Article 8 (Art. 8) of the Convention which, insofar as material, provides :        "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 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 a State has the right to control the entry and residence of non-nationals in its territory. In this regard the Commission recalls the close connection between immigration control and questions pertaining to public order and the wide margin of appreciation which States enjoy in this regard (see Eur. Court HR, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, pp. 33-34, para. 67; and Beldjoudi v. France, judgement of 26 March 1992, Series A no. 234, p. 27, para. 74).        The Commission also recalls that whilst a right to enter or remain in a particular country is not as such guaranteed by Article 8 (Art. 8) of the Convention (see inter alia No. 9213/80, Dec. 5.5.81, D.R. 24, p. 239; and No. 25439/94, Dec. 5.4.95, D.R. 81-B, p. 142), the exclusion or removal of a person from a country where his close relatives reside or have the right to reside may raise issues under Article 8 (Art. 8) (see inter alia No. 9088/80, Dec. 6.3.82, D.R. 28, p. 160; No. 9285/81, Dec. 6.7.82, D.R. 29, p. 205; No. 23938/94, Dec. 23.10.95, unpublished; No. 24381/94, Dec. 31.8.94, unpublished; and No. 25073/94, Dec. 28.2.96, unpublished).        In respect of interference with private life, the Commission considers that this may encompass inter alia the social ties between a deportee or his spouse and the community in which they live in circumstances where those ties may be severed irrevocably; or, exceptionally, the professional life of a deportee or his spouse where this would be incapable of fulfilment other than in the host state. In the present case, however, the Commission considers that the applicants' complaints essentially fall within the broad compass of the right to respect for family life. Furthermore, to the extent that the present case raises any question with regard to the right to respect for private life, the Commission considers that the determination of this issue will, in the circumstances of the present case, involve consideration of the same issues which arise in the context of the right to respect for family life. Accordingly, the Commission does not propose to consider as a separate issue whether there has been any violation of the applicants' right to respect for private life.        The Commission recalls that the duty imposed by Article 8 (Art. 8) cannot be considered as extending to a general obligation on the part of a Contracting State 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 (see Eur. Court HR, Abdulaziz, Cabales and Balkandali, loc. cit., p. 34, para. 68). The Commission also recalls that whilst the extent of a State's obligations to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved, an essential issue in any such case is whether there are insurmountable obstacles to the spouse having a right of residence following the spouse affected by the decision or order, such as difficulties of language, or where there is little or no prospect that the former will be able to adapt or integrate within the culture or society of the latter's country (see: Eur. Court HR, Beldjoudi v. France, loc. cit, p. 28, paras. 77-78; No. 9088/80, loc. cit.; No. 9285/81, loc. cit.; No. 16152/90, Dec. 13.10.92, unpublished; and No. 24381/94, loc. cit.).        An important though not decisive consideration will also be whether the marriage, albeit manifestly not one of convenience, was contracted at a time when the parties were aware that the immigration status of one of them was such that the persistence of the marriage within the host state would from the outset be precarious. The Commission considers that where this is a relevant consideration it is likely to be only in the more exceptional circumstances that the removal of the non-national spouse will constitute a violation of Article 8 (Art. 8) (cf Eur. Court HR, Abdulaziz, Cabales and Balkandali, loc. cit., p. 34, para. 68; No. 9285/81, loc. cit.; No. 24381/94, loc. cit.; No. 25073/94, loc. cit.).        In respect of the first applicant, the Commission recalls that she has substantial family ties with the United Kingdom in that her two sisters and brother are resident there. The Commission does not, however, find there to be any insurmountable obstacles to the first applicant returning to Bangladesh. The Commission also recalls that at the time of her marriage to the second applicant she had been served with notice of intention to deport. At no stage prior to the applicants' marriage could the first applicant be said to have expected that she would be permitted to reside permanently within the United Kingdom.        In respect of the second applicant, the Commission recalls that his immediate family is settled in the United Kingdom and that he has no close relatives living in Bangladesh. The Commission accepts that in following the first applicant to Bangladesh the second applicant, who has spent the greater part of his life in the United Kingdom, is likely to experience significant difficulties in adjusting to life in Bangladesh. The Commission also accepts that the applicant may initially encounter difficulties in obtaining work there. The Commission does not underestimate the magnitude of these difficulties, and recognises that the second applicant will have to cope with them in the absence of support from his own immediate family.        However, the Commission does not find any evidence that the second applicant would experience any significant difficulties of language, nor that it would not be possible for him to integrate culturally or socially within Bangladesh. Accordingly, the Commission does not consider there to be insurmountable obstacles to the second applicant returning to Bangladesh. The Commission also recalls that his marriage to the first applicant was contracted at a time when her immigration status was such that the continuance of their marriage in the United Kingdom was at the least precarious.        The Commission notes the implications of the decision to deport the first applicant for the applicant's child who is, iure sanguinis, a British citizen. Whilst the child is not joined as an applicant, the Commission considers that the position of the child may be considered within the ambit of the applicants' right to respect for family life. The Commission recalls in this context that the essential question is whether the child is of an age when she can be expected to adapt to the change in environment (see No. 23938/94, loc. cit.; and No. 24865/94, Dec. 23.10.95, unpublished). The Commission considers that the child, who is currently aged 18 months, is of an adaptable age. To the extent that the child may receive a poorer standard of education the Commission does not consider this to be a sufficiently countervailing consideration in the absence of evidence that the child has special needs for which there are no facilities available in Bangladesh. The Commission does not therefore find that in this regard there are any elements concerning respect for family life which outweigh valid considerations relating to the proper enforcement of immigration controls.        Accordingly the Commission concludes that the removal of the first applicant does not disclose a lack of respect for the applicants' rights to respect for family or private life guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention. It follows, therefore, that the application must be rejected as 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.        M.-T. SCHOEPFER                               G.H. THUNE         Secretary                                  President    to the Second Chamber                      of the Second Chamber