APPLICATION No. 10375/83
S. and S. v/the UNITED KINGDOM
DECISION of 10 December 1984 on the admissibility of the application
Article 8 of the Convention: For "family life " to exist between a mother and her adult son, there must be inter alia elements of dependency going beyond the normal, emotional ties.
THE FACTS (Extract)
(franšais. voir p. 199)
The first applicant is a citizen of India, where she was born in 1923 and where she lives. The second applicant is her only son, born in 1951 in India, and apparently settled in the United Kingdom since August 1974. Previously they had cohabited. They are represented before the Commission by Messrs Singh and Rupparell, Solicitors, London.
The facts of the case, as submitted by the parties, may be summarised as follows:
The first applicant was widowed in 1972 and was granted United Kingdom settlement to join her son in December 1975. In November 1976 the two applicants returned to India for the son's marriage. The second applicant did not return to the United Kingdom until December 1979 where he has stayed ever since with his wife and family. The first applicant had sold the family house and invested the proceeds, partly in smaller premises, these investments being apparently held in the joint names of the first and second applicants, although the latter claims to be the real, sole proprietor. As a result of this investment she was refused permission to rejoin her son in the United Kingdom in November 1979, as the Entry Clearance Officer was not satisfied that she was wholly or mainly dependent upon him. When she had originally been allowed to enter the United Kingdom it had been noted that she received regular financial aid from her son, but since then her financial circumstances were considered to have dramatically changed and that she was now comfortably off in India. This decision was upheld by an Adjudicator on 3 December 1981 with some reluctance, in view of the past history of the case, and the fact that the present refusal was not due to a change in the rules, but merely to the applicants' judicious management of their finances. The Adjudicator stated that he had no doubt that there was "a strong emotional dependence" in the case and that "in the interest of seeing that justice in its broadest term is done" he "strongly" recommended that the first applicant "be given leave to enter the United Kingdom to settle by discretionary action outside the Immigration Rules". He doubted, however, the second applicant's claim over the property in India, which he deemed common family property.
It was decided, upon legal advice, not to appeal to an Immigration Appeal Tribunal as there was no point of law involved in the case, the decisions having been taken in accordance with the relevant legislation and rules. Representations to the Home Secretary were rejected on 23 November 1982. The Home Secretary did not consider it justified to follow the Adjudicator's recommendation.
The first applicant claimed that she has no close family in India, her other child, a daughter, also being settled in the United Kingdom. However, the Government pointed out that when she applied for entry clearance in 1979 she had stated that she had her mother, four brothers and a sister living in India.
Since the refusal of entry clearance she has apparently been unwell. A medical certificate has been submitted which states that she is suffering from "exogenous depression with anxiety neurosis" and that her mental health is deteriorating as she is away from her son. The certifying doctor recommends that she join her son as she is not responding to drugs. The Government has stated that the first applicant is able to make a fresh application for entry clearance and, if her medical condition were confirmed by an independent medical referee, this matter would be given close consideration, even if she did not actually qualify for entry clearance under current Immigration Rules.
THE LAW (Extract)
1. The applicants complained of the refusal by the British Immigration authorities to allow the first applicant to enter and remain in the United Kingdom. Their principal grievance is that the refusal constitutes an unjustified interference with their right to respect for family life ensured by Article 8 of the Convention.
Article 8 provides as follows:
" 1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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 Government contended that this aspect of the case was inadmissible for non-exhaustion of domestic remedies, or for being incompatible with the provisions of the Convention, or manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.
The Commission considers that it is not necessary to decide the uncertain question of exhaustion of domestic remedies in the present case, for it finds the complaint anyway to be manifestly ill-founded for the reasons elaborated below.
The Commission refers to its constant case-law that there is no right to enter, remain or reside in a particular country guaranteed, as such, by the Convention. However, where a person is excluded from a country where his close family resides an issue may arise under Article 8 of the Convention (cf. No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219 and No. 9285/81, Dec. 6.7.82, 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 of the Convention (cf. No. 9492/81, 14.7.82, D.R. 30, p. 232). Generally, the protection of family life under Article 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 mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal, emotional ties.
Thus, as regards the facts of the present case, the Commission notes that the first applicant has substantial links with India where she has lived most of her life, ties both in respect of her other relatives and her property, and that she did not take full advantage of her United Kingdom settlement grant in 1976. It has not been shown that she is financially, or otherwise materially, dependent on the second applicant. As regards the claim that the first applicant's health is deteriorating, the Government have affirmed that this would be an important consideration to be taken into account, if established, in respect of any new application for entry clearance which she might make.
In these circumstances the Commission finds that it has not been shown that there exists a sufficiently close link between the applicants, which could be deemed to require the protection afforded by Article 8 to family life. It concludes therefore that there is no appearance of a breach of the right to respect for family life within the meaning of Article 8 of the Convention. The application in this respect is to be rejected as manifestly ill-founded within the meaning of Article 27 para, 2 of the Convention.