PATEL v. UNITED KINGDOM



AS TO THE ADMISSIBILITY OF

Application No. 14069/88

by Maheshkumar Dahyabhai PATEL

against the United Kingdom

The European Commission of Human Rights sitting in private on

14 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

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 24 May 1988

by Maheshkumar Dahyabhai PATEL against the United Kingdom and

registered on 29 July 1988 under file No. 14069/88

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

.PA:14069/88

THE FACTS

The applicant is a citizen of India born in 1961 and resident

in the District Bulsar State of Gujarat, India.

He is represented before the Commission by Messrs.

Markand-Chimwoon, Solicitors, London.

The facts as submitted by the applicant and which may be

deduced from documents presented with the application, may be

summarised as follows:

The applicant is married to a British citizen of Indian origin

who has been settled in the United Kingdom since 1964. The

applicant's wife resides in Wolverhampton with her daughter, the issue

of a previous arranged marriage to a Zambian citizen. That marriage

ended in separation after 10 months in Zambia and divorce was granted

in Zambia in February 1980. On 25 May 1983 she visited India with her

mother. On 30 May 1983 she met the applicant and within half an hour

they were engaged to be married. The marriage, which took place

according to traditional Hindu customs on 2 June 1983, had been

arranged by the parents of both spouses. The applicant agreed to

accept the daughter as his stepchild.

On 8 June 1983 the applicant applied for entry clearance to

settle with his wife in the United Kingdom. On 25 June 1983 the wife

returned to the United Kingdom with her child to continue her

employment and the child's schooling. The applicant and his wife had

lived together during those three weeks.

On 8 December 1983 the applicant was interviewed at the

British High Commission in Bombay by an Entry Clearance Officer.

According to this Officer's statement the interview was conducted in

the applicant's native language, Gujarati, with the help of a fluent

interpreter (bilingual Gujarati/English) and part of the questions and

answers were as follows:

"I asked the (applicant) when he and his wife were engaged

and he told me that they were engaged on 30 May 1983 ...

He told me that his wife had come to India to look for

a husband ...

I asked the (applicant) whether he had asked his wife to live

with him permanently in India and he told me that he had not.

I asked him why he had not so asked her bearing in mind that

it was traditional for wives to join husbands after marriage.

The (applicant) told me that he had not asked his wife to live

with him in India because he wanted to go and live in the

United Kingdom. He added that he did not want his wife to

live in India. I asked the (applicant) why he had married a

divorced woman who had a 7 year old child from her previous

marriage and he told me that it was an arranged marriage. I

asked him why a marriage was arranged to such a woman and he

told me that it was arranged so that he could go to the United

Kingdom for settlement. I asked the (applicant) whether his

wife was prepared to live permanently with him in India and he

told me that he did not know. I asked the (applicant) why his

wife had gone back to the United Kingdom so soon after their

marriage and he told me she went back to her job in a shop. I

asked the (applicant) why they did not wish to live

permanently in India after their marriage and (he) told me

that it was because he wanted to live in the United Kingdom.

I asked the applicant whether the main reason for marrying his

wife was to enable him to go to the United Kingdom for

settlement and (he) told me that this was correct."

In early 1984 the wife was interviewed in the United Kingdom

and she denied her trip to India was for the purpose of finding a

husband. She was sure the applicant had not married her purely to

gain entry into the United Kingdom and, although she did not want to

live in India, she stated that she would join her husband if all

appeals failed.

On 8 May 1984 the applicant was reinterviewed by an Entry

Clearance Officer in Bombay and, according to that Officer's

statement, the applicant reiterated that he had married solely to gain

entry to the United Kingdom and that he would otherwise not have

married his wife due to her divorced status. He did not want to live

in India and had earlier sought work in the Persian Gulf. This

interview was also conducted with the aid of an interpreter, in the

Gujarati language.

An entry certificate was refused because the Entry Clearance

Officer found that, although a valid marriage had been contracted

between the two parties and he had no reason to believe that they did

not intend to live together permanently if the applicant were admitted

to the United Kingdom, in his opinion the primary purpose of the

marriage was to gain entry into the United Kingdom, in contravention

of paragraph 54(a) of the Statement of Changes in Immigration Rules HC

169 Paragraph 54 of these Rules provides as follows:

An entry clearance for the foreign husband of a woman

settled in the United Kingdom will be refused unless

the Entry Clearance Officer is satisfied:

"(a) that the marriage was not entered into primarily

to obtain admission to the United Kingdom and

(b) that each of the parties has the intention of

living permanently with the other as his or her

spouse; and

(c) that the parties to the marriage have met."

The applicant appealed to an Adjudicator who dismissed his

appeal on 10 April 1985. The Immigration Appeal Tribunal refused

leave to appeal on 8 June 1985.

The applicant reapplied for entry clearance on 17 August

1985 He was interviewed on 21 February 1986 which interview was

described by the Entry Clearance Officer as follows:

"The (applicant) ... has applied again for an entry

certificate in order to join his wife, the sponsor ...

There has been no material change in the circumstances

of either (of them) since the (applicant's) previous

application ... The (applicant) decided to marry the

sponsor half an hour after meeting her. He told me

that he had agreed to marry the sponsor because of her

looks and her nice nature, and that he had thought his

life would be good with her. He had not considered

any other factors in his decision to marry her and had

not thought about the fact that the sponsor came from

the United Kingdom. The (applicant) told me that he

could not remember what he had told the Entry Clearance

Officer at the time of his previous application, but when I

reminded him of the answers he had given to the Entry

Clearance Officer during his interview at that time he denied

that he had told the Entry Clearance Officer that his marriage

had been arranged so he could go to the United Kingdom for

settlement. He denied that, as he had previously told the

Entry Clearance Officer, the main reason for marrying the

sponsor was so that he could go to the United Kingdom for

settlement, and told me that he did not remember what he had

said. He told me that the statements he had made at that time

were not true, but could not tell me why he had therefore made

them to the Entry Clearance Officer. The (applicant) denied

that the prospect of a better future in the United Kingdom was

a factor which had influenced his decision to marry the

sponsor, and he told me that he would have married the sponsor

had she been resident in India. He made no reply however when

I put it to him that during his previous interview he had told

the Entry Clearance Officer that he would not have married the

sponsor had she been resident in India. The (applicant) told

me that he had not asked the sponsor whether she would be

prepared to live with him in India because the climate in

India did not suit her, but he told me that he did not

remember having told the Entry Clearance Officer previously

that the reason he had not asked the sponsor to live in India

with him was because he did not want to live in India. The

(applicant) could make no reply when I asked him why he could

not now remember any details of his interview in connection

with his previous application, despite the fact that in his

letters he had criticised the accuracy of the interview and

the competence of the interpreter. The (applicant) last saw

his wife, the sponsor, in June 1983 and she had not returned

to India because her daughter was at school. The (applicant)

told me that the sponsor would come to India if his

application was refused a second time. The (applicant)

confirmed that he had understood all the questions but made

no reply when I asked him why his answers in his present

interview differed so fundamentally from his answers during

his previous interview."

The Entry Clearance Officer refused an entry certificate

because he could not overlook the applicant's statements at the

earlier interview in December 1983. He did not accept that the

applicant had forgotten the previous interview or that the prejudicial

remarks had not been made, given the accuracy of the applicant's

memory in other respects and the absence of any dispute about other

important aspects of that interview. He felt that the applicant was

now attempting to redress these remarks with the knowledge of

hindsight in order to satisfy the requirements of the Immigration

Rules. The Officer still found that the applicant's marriage had been

contracted for the primary purpose of entering the United Kingdom.

The applicant's wife, supported by representations from her

Member of Parliament, twice visited India in an attempt to convince

the Entry Clearance Officer to change his mind, but to no avail.

An appeal to an Adjudicator, based on the revised Rule

(paragraph 46(a) of the Statement of Changes in Immigration Rules HC

503 extending the primary purpose rule to both foreign husbands and

wives) was rejected on 28 April 1987. The Adjudicator found that, as

far as the applicant was concerned, his primary purpose in marrying

was to obtain admission to the United Kingdom, with the marriage

relationship being subsidiary to that. The Adjudicator also refused

to order discovery of the Entry Clearance Officer's interview notes of

December 1983 and early 1984, as they were not deemed necessary to

decide the present case and had not been requested at the material

time in the earlier proceedings.

Leave to appeal against the Adjudicator's decisions to the

Immigration Appeal Tribunal was refused on 19 June 1987. An

application for judicial review of the Tribunal's decision was

rejected by the High Court on 21 October 1987 and the Court of Appeal

on 29 April 1988.

COMPLAINTS

The applicant complains that the refusal of entry clearance to

the United Kingdom by British immigration authorities constitutes a

denial of his right to respect for family life ensured by Article 8 of

the Convention and of his right to marry and found a family ensured by

Article 12. The applicant also complains that the decision of the

Immigration Appeal Tribunal on 19 June 1987 was in breach of the rules

of natural justice and Article 6 para. 1 of the Convention because it

failed to order discovery of the notes of the Entry Clearance Officer

made at the applicant's interview on 8 December 1983, given that the

applicant denies having made any prejudicial statements about his

marriage intentions at that interview. He submits that the purpose of

his application to the Commission is to be allowed to join his wife in

the United Kingdom and to have condemned the primary purpose rule

which is allegedly discriminatory against Asians particularly in

respect of arranged marriages.

THE LAW

1 The applicant complains that the refusal of British

immigration authorities to allow him to enter the United Kingdom to

settle with his wife constitutes a breach 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 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 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).

Article 8 (Art. 8) of the Convention "presupposes the existence of a

family" and at least includes "the relationship that arises from a lawful and

genuine marriage ... even if a family life ... has not yet been fully

established" (Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of

25 May 1985, Series A No. 94, p. 32 para. 62). The Commission notes in the

present case that although the applicant and his wife have only lived together

for brief intervals in India the British immigration authorities have never

contested that a valid marriage had been contracted between them and that they

intended to live together permanently if the applicant were allowed to settle

in the United Kingdom. In these circumstances the Commission finds that the

applicant's marriage falls within the scope of the family life provision of

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

However, the question remains whether there has been an

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

In this connection the Commission considers that distinctions must be

drawn between those seeking entry into a country to pursue their newly

established family life, as in the present case, those who had an

established family life before one of the spouses obtained settlement

in another country, and those who seek to remain in a country where

they have already established close family and other ties for a

reasonable period of time. In this context the Commission refers to

the views of the Court in the Abdulaziz, Cabales and Balkandali

judgment (loc. cit. pp. 33-34 paras. 67-68):

"The Court recalls that, although the essential object of

Article 8 is to protect the individual against arbitrary

interference by the public authorities, there may in addition

be positive obligations inherent in an effective 'respect' for

family life. However, especially as far as those positive

obligations are concerned, the notion of 'respect' is not

clear-cut: having regard to the diversity of the practices

followed and the situations obtaining in the Contracting

States, the notion's requirements will vary considerably from

case to case. Accordingly, this is an area in which the

Contracting Parties enjoy a wide margin of appreciation in

determining the steps to be taken to ensure compliance with

the Convention with due regard to the needs and resources of

the community and of individuals ... In particular, in the

area now under consideration, the extent of a State's

obligation to admit to its territory relatives of settled

immigrants will vary according to the particular circumstances

of the persons involved. Moreover, the Court cannot ignore

that the present case is concerned not only with family life

but also with immigration and that, as a matter of

well-established international law and subject to its treaty

obligations, a State has the right to control the entry of

non-nationals into its territory.

The Court observes that the present proceedings do not relate

to immigrants who already had a family which they left behind

in another country until they had achieved settled status in

the United Kingdom. It was only after becoming settled in the

United Kingdom, as single persons, that the applicants

contracted marriage ... The duty imposed by Article 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.

In the present case, the applicants have not shown that there

were obstacles to establishing family life in their own or

their husbands' home countries or that there were special

reasons why that could not be expected of them."

In the present case the Commission notes that despite the

applicant's assertions to the contrary, the immigration authorities

had reasonable grounds to believe that originally the main purpose of

his marriage to a British citizen was to emigrate to the United

Kingdom. The Commission also observes that the applicant has no

strong ties with the United Kingdom, never having visited it and not

having any other relatives there apart from his wife. Moreover there

seem to be no serious obstacles preventing the applicant's wife

returning to India, from where she originates, to live with the

applicant. In the light of these circumstances, the Commission

concludes that there has not been an interference with the applicant's

right to respect for family life ensured by Article 8 para. 1 of the

Convention and that, accordingly, this aspect of the case must be

rejected as being manifestly ill-founded, in accordance with Article

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

2 The applicant has also invoked Article 12 (Art. 12) of the

Convention in respect of the refusal of British immigration authorities

to grant him entry clearance.

Article 12 (Art. 12) of the Convention provides as follows:

"Men and women of marriageable age have the right to marry

and to found a family, according to the national law governing

the exercise of this right."

The Commission notes that the applicant married a British

citizen unhindered. Furthermore, for the same reasons given above in

respect of Article 8 (Art. 8) of the Convention, the Commission finds that

Article 12 (Art. 12) of the Convention also does not impose a general

obligation upon Contracting States to respect a married couple's choice of the

place where they wish to found a family or to accept non-national spouses for

settlement to facilitate that choice. It follows that this aspect of the case

is also manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of theConvention.

3 The applicant has next complained of a violation of Article 6

para. 1 (Art. 6-1) of the Convention in that his request for production

of the Entry Clearance Officer's notes of the interview on 8 December 1983, the

contents of which were disputed by the applicant, was refused by the

Immigration Appeal Tribunal.

The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention

provides as follows:

"In the determination of his civil rights and obligations

... everyone is entitled to a fair and public hearing ..."

The Commission refers to its constant case-law that Article 6

para. 1 (Art. 6-1) of the Convention does not apply to immigration matters, in

particular the analogous question of deportation, no issue of civil

rights and obligations arising:

"A decision as to whether an alien should be allowed to

stay in a country is a discretionary act by a public

authority. Consequently, the decisions to expel ...

were of an administrative order and they were made in

the exercise of the discretionary powers of the immigration

authorities. They did not, therefore, involve as such the

determination of civil rights within the meaning of Article

6 para. 1 (Art. 6-1) of the Convention ..." (No. 8244/78, Singh,

Uppal et al v. the United Kingdom, Dec. 2.5.79, D.R. 17 p. 149;

No. 9285/81, Dec. 6.7.82, D.R. 29 p. 211).

The Commission considers that, similarly, the proceedings by

which the United Kingdom authorities refused the applicant permission

to enter the United Kingdom were of an administrative, discretionary

nature and did not involve the determination of the applicant's civil

rights and obligations. It follows that the provisions of Article 6

para. 1 (Art. 6-1) of the Convention are not applicable to such proceedings

and this aspect of the case must be rejected as being incompatible ratione

materiae with the provisions of the Convention, pursuant to Article 27 para. 2

(Art. 27-2) of the Convention.

4 Finally, the applicant alleges a violation of Article 14 of

the Convention, read in conjunction with Article 8 (Art. 14+8), insofar

as he complains that the "primary purpose" restriction contained in the

Statement of Changes in Immigration Rules is racially discriminatory against

Asians, particularly in respect of arranged marriages.

Article 14 (Art. 14) of the Convention prohibits discrimination in the

securement of Convention rights and freedoms on any ground such as race. The

Commission notes, however, that paragraph 54 of HC 169, replaced by paragraph

46 of HC 503, Statement of Changes in Immigration Rules, prevented entry

clearance being given to foreign spouses on three grounds:

a) if the primary purpose of the marriage was to emigrate

to the United Kingdom,

b) if the parties to the marriage did not have the intention

of living permanently together, and

c) if the parties had never met.

Only the first restriction was applied in the applicant's case

and the Commission finds no evidence that such a restriction was aimed

to discriminate against Asian arranged marriages. The Rule makes no

reference to particular racial groups and applies to all persons

equally who fall within its scope (cf. aforementioned Abdulaziz,

Cabales and Balkandali judgment paras. 84-86). Furthermore the

Commission recalls that the British immigration authorities recognised

the applicant's marriage as valid and at no time based their decision

on the fact that the marriage was arranged. The Commission concludes,

therefore, that 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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)