European Court of Human Rights

The European Commission of Human Rights sitting in private on
13 October 1986, the following members being present:

                    MM. C.A. NØRGAARD, President
                        J.A. FROWEIN
                        F. ERMACORA
                        E. BUSUTTIL
                        G. JÖRUNDSSON
                        G. TENEKIDES
                        S. TRECHSEL
                        B. KIERNAN
                        A.S. GÖZÜBÜYÜK
                        A. WEITZEL
                        J.C. SOYER
                        H.G. SCHERMERS
                        H. DANELIUS
                        G. BATLINER
                        J. CAMPINOS
                    Mrs G.H. THUNE
                    Sir Basil HALL
                    Mr. F. MARTINEZ

                    Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Art. 25 (art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 June 1986 by
P. and G.P. against the United Kingdom and registered on 10 June 1986
under file No. 12216/86;

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 first applicant is a British Overseas citizen born in 1944 and
resident in Secunderabad, India.  The second applicant, the brother of
the first applicant, is a British citizen born in 1951 and resident in
London.  They are represented before the Commission by
Ms. Susan Hulton, Legal Director, Interrights.  The facts as submitted
by the applicant may be summarised as follows.

The applicants' family originally lived in East Africa. Following the
"Africanisation" policy introduced in Tanzania however, the family
moved to India.  The second applicant moved to the United Kingdom in
1973 where the whole family, save the first applicant, were settled by
1976.  The first applicant remained in India because she had married
an Indian national in 1971 and chose to remain in India with her
husband.

On 13 November 1982, the first applicant's husband died, leaving her
to raise three children without any family support within the country.
Her father had died in India eight years earlier and her mother had
obtained entry to the United Kingdom to join the second applicant
shortly after.  Her two other brothers and sisters had also settled in
the United Kingdom.  Her father-in-law had died and her mother-in-law
lives 1.500 km away.  The two sisters of her husband live in Zambia
and United Kingdom respectively.  The only other relative she had was
a paternal uncle also in the United Kingdom.  Her husband left no
pension and since his death, the first applicant has been entirely
dependent on the second applicant for monthly remittances.  The first
applicant and her children live in a one room apartment in which there
is one bed, one cupboard and one mattress for the children; there is a
separate kitchen.

Since her husband's death, the first applicant has been unwell.  A
doctor's certificate dated 29 March 1984 described her condition as
"severe endogenous depression" and gives the view that "she has not
been able to come out of her depression because of lack of usual
family support to herself and her children".

The second applicant had applied on 7 December 1982 for a quota
voucher for the first applicant to enter the United Kingdom in her own
right as a British Overseas citizen.  He was informed that the waiting
period in the queue from India is an average of between six and eight
years.  The first applicant therefore also applied for entry on
7 December 1982 for herself and her children as dependants of the second
applicant under paragraph 52 of the Statement of Changes in
Immigration Rules HC 169:

"52.  Widowed mothers, fathers who are widowers aged 65 or over and
parents travelling together of whom at least one is aged 65 or over
should be admitted for settlement only where the requirements of
paragraphs 46 and 47 and the following conditions are met.  They must
be wholly or mainly dependent upon sons or daughters settled in the
United Kingdom who have the means to maintain their parents and any
other relatives who would be admissible as dependants of the parents
and adequate accommodation for them.  They must also be without other
class relatives in their own country to turn to.

This provision should not be extended to people below 65 (other than
widowed mothers) except where they are living alone in the most
exceptional compassionate circumstances, including having a standard
of living substantially below that of their own country, but may in
such circumstances be extended to sons, daughters, sisters, brothers,
uncles, aunts of whatever age who are mainly dependent upon relatives
settled in the United Kingdom.  The requirements of paragraphs 46 and
47 must be met in any such cases."

(Paragraph 47 imposes the requirement of obtaining an entry
certificate and paragraph 46 imposes the obligation that the sponsor
"must be able and willing to maintain and accommodate his dependants
without recourse to public funds in accommodation of his own or which
he occupies himself".)

The application was refused on 13 September 1983 by the Entry
Clearance Officer in Bombay, but the appeal was allowed by the
Adjudicator, who accepted that the first applicant was living in the
most exceptional compassionate circumstances and that she would have a
standard of living substantially below that of her own country if her
brother's remittances ceased.  The Entry Clearance Officer appealed to
the Immigration Appeal Tribunal.  In its decision of 19 June 1985, the
Tribunal found for the Entry Clearance Officer.  It accepted the first
applicant was living alone and that she had no income of her own,
being entirely dependent on aid from her brother.  However, in
assessing whether the first applicant's situation constituted "most
exceptional compassionate circumstances", the Tribunal held that the
ability of the Sponsor to assist financially should be taken into
account and that since the second applicant was able to support the
family through his aid, there was no evidence of extreme hardship.
They also found that although there was some evidence of ill-health,
the medical evidence was not entirely clear.  They therefore concluded
that while there were compassionate circumstances in the case "these
were not of the most exceptional kind".

The first applicant did not seek judicial review of the decision since
this would have been ineffective in the circumstances of the case.

On 13 September 1985, counsel from the United Kingdom Immigrant's
Advisory Service ("UKIAS") wrote to the Under Secretary of State of
the Home Office on the first applicant's behalf requesting that she be
allowed to join her brother in the United Kingdom as an exceptional
matter outside the Immigration Rules.  On 23 September 1985,

Mr. Leighton M.P. petitioned the Home Secretary on behalf of the
second applicant.  Mr. Spearing, the second applicant's constituency
M.P., wrote a follow-up letter on 28 January 1986.  On 10 March 1986
the Minister replied enclosing a copy of a letter dated
10 December 1985 to Mr. Leighton advising that he had reviewed the
Tribunal's decision and was unable to reach a different conclusion.
Counsel from UKIAS did not receive a written response to the letter to
the Under-Secretary, but the second applicant was advised by telephone
in December that her request had been turned down and a reply to that
effect had been sent to Mr. Leighton.

COMPLAINTS

Article 8 (art. 8)

The applicants contend that the refusal of the authorities to allow
the first applicant and her children to enter the United Kingdom to
reside with the second applicant constitutes an unjustified
interference with their right to respect for family life.  They submit
that there is a strong material and emotional bond between the
applicants and it is clearly accepted by the authorities that the
first applicant is wholly dependent financially on the second
applicant.  The first applicant is equally dependent emotionally on
the second applicant, her mental condition requiring emotional support
since her husband's death.  The applicants contend that it is neither
possible nor reasonable to expect the second applicant and his family
joining his sister in India.  His family (also comprising two
brothers, two sisters and elderly mother) are well-settled in United
Kingdom where they have lived for more than ten years.  They also have
no ties with India.  The economic consequences of moving to India
would be disastrous and the second applicant would probably be unable
to continue to support the first applicant.

The applicants contend that the separation of the applicants cannot be
held to be justified under Article 8 para. 2 (art. 8-2) as being
necessary in a democratic society to achieve one of the legitimate
aims specified in that paragraph.  Even if the refusal could be said
to be for a legitimate aim, the means used to achieve that purpose is
disproportionate.

Article 13 (art. 13)

The applicants contend that the following remedies do not satisfy the
criterion of effective remedies either individually or in the
aggregate.

a) Right of appeal to the Immigration Appeal Tribunal

This body does not provide an effective remedy since it has no power
to depart from the Immigration Rules to deal with a complaint of
violation of the Convention.

b) Representations to the Secretary of State

It cannot be an effective remedy to apply to the same person who
promulgated the Rules and took the original decision complained of.

c) Judicial review

i.  Of the decision of the Immigration Appeal Tribunal

The applicants submit the Divisional Court also could not question the
lawful application of the Rules.  It could only quash the decision if
the Tribunal had erred in law or acted arbitrarily or perversely
reached a conclusion on the facts which no reasonable Tribunal could
have reached.

ii.  Of the decision of the Secretary of State

If the Secretary of State's decision is within the Rules and he
refuses to depart from them, such decision does not constitute an
exercise of discretion from which an appeal lies under section 19
para. 2 of the Immigration Act 1971.

The applicants therefore submit that there was no opportunity in these
or any other legal proceedings in the United Kingdom in which they
could challenge the conformity of the authorities' refusal of entry
with Article 8 (art. 8) of the Convention and accordingly that there
has been a breach of Article 13 (art. 13) of the Convention.

THE LAW

1.      The applicants complain of the refusal by the British
Immigration authorities to allow the first applicant and her children
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 (art. 8)
of the Convention.

Article 8 (art. 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."

However, the Commission is not required to decide whether or not the
facts alleged by the applicant disclose any appearance of a violation
of this provision, as Article 26 (art. 26) of the Convention provides
that the Commission "may only deal with the matter ... within a period
of six months from the date on which the final decision was taken".
According to the Commission's constant case-law the "final decision"
within the meaning of Article 26 (art. 26) refers solely to the final
decision involved in the exhaustion of all domestic remedies according
to the generally recognised rules of international law.  In particular
only a remedy which is "effective and sufficient" can be considered
for this purpose (see e.g. decisions on admissibility of applications
No. 918/60, Collection of Decisions 7 pp. 108, 110 and No. 654/59,
Yearbook 4 pp. 277, 283).

The Commission finds that, in the present case, the applicants'
application to the Secretary of State to exercise his discretion to
allow entry as an exceptional matter outside the Immigration Rules was
not an effective remedy under the generally recognised rules of
international law, since the Secretary of State is not only the
authority responsible for the promulgation of the Immigration Rules
but the authority responsible for the initial decision to refuse
entry.  Consequently, the final decision regarding the applicants'
complaint is the decision of the Immigration Appeal Tribunal which was
given on 19 June 1985.  The present application however was submitted
to the Commission on 6 June 1986, that is, more than 6 months after
the date of this decision.  Furthermore, an examination of the case
does not disclose the existence of any special circumstances which
might have interrupted or suspended the running of that period.

It follows that this part of the application has been introduced out
of time and must be rejected under Article 27 para. 3 (art. 27-3)
of the Convention.

2.      The applicants also complain that they do not have any
effective remedy for their complaints under Article 13 (art. 13)
of the Convention.

Article 13 (art. 13) of the Convention provides that:

"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 however that it has already considered this
issue in relation to immigration appeal procedures (see Application
No. 8244/78, Dec. 2.5.79, D.R. 17 p. 149) and concluded that the
possible appeals to the Adjudicator and Immigration Appeal Tribunal
who are empowered to review and reverse the decisions by the Home
Secretary ordering deportation, constitute effective remedies. The
Commission finds that these procedures also constitute effective
remedies in relation to complaints concerning a refusal of entry by
the immigration authorities.  The Commission recalls that the
Adjudicator indeed found in favour of the applicants.  The fact that
they were unsuccessful before the Immigration Appeal Tribunal cannot
amount to a breach of Article 13 (art. 13) of the Convention.

It follows that this part of the application is manifestly ill-founded
in accordance with Article 27 para. 2 (art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

        Deputy Secretary                         President
       to the Commission                     of the Commission

          (J. RAYMOND)                        (C.A. NØRGAARD)