M. A. v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 12392/86

by M.A.

against the United Kingdom

The European Commission of Human Rights sitting in private on

the 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 23 June 1986

by M.A. against the United Kingdom and registered

on 15 September 1986 under file No. 12392/86.

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 applicant is a citizen of the United Kingdom, born in 1964

and resident in F., England. She is a housewife by

profession. The applicant is represented before the Commission by

Messrs. Mayne Lidgey, Solicitors, London.

The facts as submitted by the applicant, and which are

apparent from official documentation lodged with the application, may

be summarised as follows:

On 2 September 1985 the applicant married an Egyptian citizen

who at that stage was already in breach of immigration regulations,

having unlawfully overstayed. On 5 September 1985 her husband applied

for leave to remain in the United Kingdom on the basis of the

marriage. On 30 January 1986 that leave was refused as the Secretary

of State was "not satisfied that the marriage was not entered into

primarily to obtain settlement" in the United Kingdom, and furthermore,

as the husband had remained in breach of the Immigration Rules.

Representations were made to the Secretary of State through

the applicant's Member of Parliament. In a letter dated 5 June 1986

the Secretary of State replied to the Member of Parliament as follows:

"As you are probably aware, under the Immigration Rules an

extension of stay or leave to remain will not be granted to

a man admitted in a temporary capacity who marries a woman

settled here unless the Secretary of State is satisfied,

amongst other things, that the marriage is not entered into

primarily to obtain settlement here and that the applicant

has not remained in breach of the immigration laws. (1)

Mr. Abdel-Aziz has a very poor immigration history having

illegally overstayed for more than two years and having

worked in breach of his landing conditions. He has admitted

that he does not wish to do his military service in Egypt and

would instead like to settle here. He entered into marriage

a few weeks after being convicted of overstaying and in the

sure knowledge that he had no further basis of stay in this

country.

As you know, Mr. Abdel-Aziz's application was refused on

30 January. Nevertheless, I have very carefully reviewed

our decision in the light of your representations and with

reference to the report of Mr. and Mrs. Abdel-Aziz's

interview with the Immigration Service, but I am afraid that

I can see no grounds for reversing it. As further explained

on the notice of refusal, Mr. Abdel-Aziz has no right of

appeal under the Immigration Act 1971 against our decision

because the application was made after his leave to remain

had expired."

______________

(1) Paragraph 124 of the Statement of Changes in Immigration

Rules HC 503 (amending HC 169) provides that a person with limited

leave seeking an extension of stay on the basis of a marriage to a

person settled in the United Kingdom will not be granted that leave

unless the Secretary of State is satisfied, inter alia, that the

marriage was not entered into primarily to obtain settlement and that

the applicant has not remained in breach of the immigration laws.

The deportation order was not enforced immediately thereafter

because the applicant was pregnant. A son was born to the couple on

20 May 1986.

The applicant has not informed the Commission of any further

developments in her family's situation since then.

COMPLAINTS

The applicant complains that the refusal to allow her husband

to remain in the United Kingdom denies her right to respect for family

life and constitutes sexual discrimination contrary to Articles 8 and

14 of the Convention.

THE LAW

1 The applicant has complained of the refusal by British

immigration authorities to allow her Egyptian husband to remain in the

United Kingdom with her. She has invoked Articles 8 and 14 (Art. 8, 14)

of the Convention, the relevant parts of which provide as follows:

Article 8 (Art. 8)

"1. Everyone has the right to respect for ...

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 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, race, ... national or social origin,

... or other status."

2 The Commission recalls its constant case-law that whilst the

Convention does not guarantee a right, as such, to enter or remain in

a particular country, when a person is excluded from a country where

his close relatives are entitled to reside an issue may arise 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. 9285/81, Dec. 6.7.82, D.R. 29

p. 205).

In the present case the Commission notes that the applicant's

husband has illegally overstayed in the United Kingdom. His marriage

to the applicant was contracted at a time when he must have been aware

of his precarious immigration status. There do not appear to be

insurmountable obstacles to the applicant and her son following her

husband to Egypt. The applicant has not contested the lawfulness of

the immigration authorities' refusal to allow her husband to remain in

the United Kingdom, which refusal was taken to enforce immigration

controls pursuant to the Statement of Changes in Immigration Rules HC

503.

Thus, in the circumstances of the present case, the Commission

finds that the refusal of the husband's leave to remain constitutes an

interference with the applicant's right to respect for family life

under Article 8 para. 1 (Art. 8-1) of the Convention. Nevertheless, the

Commission must attach significant weight to the reasons for the

refusal. The Commission finds with regard to the second paragraph of

Article 8 (Art. 8) that there are no elements concerning respect for family

life which might outweigh valid considerations relating to the proper

enforcement of immigration controls. In this respect the Commission

would emphasise the close connection between the policy of immigration

control and considerations pertaining to public order. The Commission

is of the opinion, therefore, that the interference with the

applicant's right to respect for family life was in accordance with

the law and justified as being necessary in a democratic society "for

the prevention of disorder", under the second paragraph of Article 8

(Art. 8), as a legitimate measure of immigration control.

Accordingly, this aspect of the application must be rejected

as being manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

3 Finally, as regards the applicant's complaint of

discrimination in the securement of her family life rights, the

Commission finds the applicant's claim wholly unsubstantiated,

particularly in the light of the text of paragraph 124 of the

Statement of Changes in Immigration Rules HC 503 (p. 2 above), which

makes no sexual or other distinction between persons with limited

leave seeking an extension of stay on the basis of a marriage to a

person settled in the United Kingdom.

This part of the application is, therefore, also 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)