GOVERNMENT OF THE NETHERLANDS v. THE GOVERNMENT OF GREECE - 3325/67 [1968] ECHR 17 (2

[align=left]THE FACTS

Whereas the facts presented by the Applicants' solicitors Messrs
Bernard Sheridan and Company, of London, may be summarised as follows:

The first Applicant is X., a shoemaker by trade, born on .. April 1936,
at Port Louis, Mauritius. On .. June 1961, he was married at Port Louis
to Y., the second Applicant. There are 3 children of the marriage, Z.,
born .. July 1962, and V., born .. April 1965 - both born in Mauritius,
and a son born in London on .. September 1967 - the third, fourth and
fifth Applicants.

As a citizen of the United Kingdom and Colonies, X. was issued on ..
July 1966, by the Governor of Mauritius with a British Passport No.
..., and was admitted to the United Kingdom on .. July 1966, for a
period of 6 months. He obtained employment as a packer, and on ..
December 1966, he was joined in the United Kingdom by his wife who was
given an Entry Certificate entitling her to enter Britain "to join
husband". X. requested his employer to make application to the Ministry
of Labour to allow him to work on a permanent basis. However, it was
explained to the firm who had applied on his behalf that he could not
be allowed to remain indefinitely in employment, without an employment
voucher which it was not proposed to issue. Consequently, on the
completion of the 6 months period he left the United Kingdom on ..
January 1967 for Mauritius, his wife and 2 children remaining in London
with relatives.

As his wife was very shortly expecting a further child, he returned to
the United Kingdom by chartered flight on .. July 1967, in order to see
his wife, children and other relatives, and in order to be present
during the birth of the third child. At the same time he proposed to
explore the possibility of obtaining permission once again from the
Ministry of Labour for employment in the United Kingdom, failing which
he proposed to return to Mauritius. For these purposes he had in his
possession the sum of £ 150 by bank draft, and should it be necessary
to return again to Mauritius after the birth of the child, a return air
ticket to Mauritius valid for a charter flight on .. August 1967.

On his arrival at Gatwick Airport he was questioned by 2 Immigration
Officers about the purpose of his visit. He had no opportunity for
legal advice during this questioning, and fearful that steps might be
taken to deport his pregnant wife, and children, he did not disclose
their continuing presence in the United Kingdom, and stated that his
intention was merely to visit relatives in London for one month.

The Immigration Authorities refused him permission to enter the United
Kingdom and he was detained pending return to Mauritius. He then
instructed B. and Company to take all possible steps to secure his
release and entry into the United Kingdom. The Chief Immigration
Officer at Gatwick Airport handed the first Applicant a document
refusing him leave to land in the United Kingdom and ordered that he
be returned on the next available flight to Mauritius. The Applicant
appealed to the immigration officials to defer repatriation until he
had been able to demonstrate his right to enter the United Kingdom but
the immigration officials nevertheless by serving on him notice
refusing him admission to the United Kingdom, implemented their
decision without affording either him or his wife a reasonable
opportunity to establish such right of entry.

He submits that he had and has no right which may be enforced under
English law in respect of the decision to exclude him from the United
Kingdom under Section 2 of the Commonwealth Immigrants Act 1962. But
he did apply for a Writ of Habeas Corpus ad subjiciendum challenging
the right of the immigration officials to deny him entry into the
United Kingdom, on the ground that the Commonwealth Immigrants Act 1962
did not cover citizens of the United Kingdom and Colonies resident in
a colonial territory and possessing a valid British passport. This
application was refused on .. August 1967, by the Queen's Bench
Divisional Court of the High Court of Justice in London, and on ..
August 1967, the Applicant's appeal against that decision was dismissed
by the Court of Appeal. The Applicants submit that they have exhausted
any domestic remedies they might have had.

These legal proceedings having failed, and it being still intended to
return the first Applicant to Mauritius he then, for the first time,
disclosed to his solicitors the residence in London of his wife and
children. The solicitors made representations to the Home Office,
arising out of which permission was given to the first Applicant on
compassionate grounds to remain in the United Kingdom for a period of
one month as a "visitor" to cover the period during which the birth of
his third child was expected. On .. August 1967, solely because of the
imminent confinement of his wife the Applicant was admitted to the
United Kingdom on condition that he does not remain longer than one
month and does not engage in any employment and on the basis that he
must make arrangements for his return and that of his family to
Mauritius within the period for which he has been admitted.
Subsequently, however, the United Kingdom Government allowed Mr X. the
right of unrestricted entry into the country.

The Applicants submit that, in accordance with the Commonwealth
Immigrants Act 1962, and the instructions to Immigration Officers,
since the wife, as a citizen of the United Kingdom and Colonies,
lawfully entered the United Kingdom, and since at that time no
conditions were imposed by the Immigration Authorities, and she has not
committed an offence in respect of which she could be deported, she has
acquired lawful residence in the United Kingdom, and cannot be
deported. They further submit that their third child born in the United
Kingdom would not in any circumstances be liable to the provisions of
the Commonwealth Immigrants Act, since the child will be a citizen of
the United Kingdom and Colonies by birth and thus exempt from the
provision of the Act.

The Applicants allege the following violations of the Convention:

a. Violation of Applicants' right under Article 8 to respect for family
life;

b. Violation of Applicants' rights under Article 6 in the determination
of the first Applicant's civil rights to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law, in that:

i. the entire proceedings were held in private;

ii. the first Applicant was not permitted to be legally represented
during the interrogation;

iii. the first Applicant was not given sufficient time or facilities
to enable him to obtain evidence to satisfy the immigration officials
of his right to enter;

iv. the first Applicant had no right to resort to an independent and
impartial tribunal whether by way of appeal or otherwise;

c. Violations of the Applicants' rights under Article 13 to an
effective remedy before a National Authority for Violation;

d. Violations of the Applicants' rights under Article 13 to enjoyment
of the Applicants' rights and freedoms without discrimination on the
ground of the Applicants' social origin or birth, namely the
Applicants' birth in Mauritius.

When lodging their Application the Applicants claimed the right of
entry into the United Kingdom for the first Applicant; in the
alternative a fair and impartial hearing of the matters in issue by an
independent tribunal; and damages.

After the first Applicant has been allowed the right of unrestricted
entry, they have maintained their complaint with regard to damages for
the time when he was excluded from the United Kingdom, the time which
he spent in prison and for the time during which he was not allowed to
engage in employment.

THE LAW

Whereas the Applicants complain that the immigration authorities
initially refused to allow the first Applicant to enter the United
Kingdom without restriction; whereas in this respect it is first to be
observed that the Convention, under the terms of Article 1 (Art. 1),
guarantees only the rights and freedoms set forth in Section I of the
Convention; and whereas, under Article 25, paragraph (1) (Art. 25-1),
only the alleged violation of one of those rights and freedoms by a
Contracting Party can be the subject of an application presented by a
person, non-governmental organisation or group of individuals;

Whereas otherwise its examination is outside the competence of the
Commission ratione materiae;

Whereas the Commission has already held in several decisions that a
general right to enter, to reside in, and not to be expelled from, a
particular country or a certain part of it, is not as such a right
guaranteed by any provision of the Convention, not even for the
citizens of that country (see Applications Nos 214/56, De Becker
against Belgium, Yearbook II, page 224, and 996/61, C. against Belgium,
unpublished decision of 16 December 1961); whereas it follows that
under this aspect, the Application is incompatible with the provisions
of the Convention within the meaning of Article 27, paragraph (2)
(Art. 27-2);

Whereas the Applicants complain in particular that the initial refusal
by the immigration authorities to allow the first Applicant to enter
the United Kingdom without restrictions constituted a violation of the
Applicants' right to respect for their family life as is guaranteed
under Article 8 (Art. 8) of the Convention; whereas it is true that the
exclusion of a person from a country where close members of his family
are living, can amount to an infringement of this right; whereas, in
this respect, the Commission refers to its decision of 15 July 1967,
on the admissibility of Applications Nos 2991/66 (Alam and Khan against
the United Kingdom) and 2992/66 (Singh against the United Kingdom),
Collection of Decisions, Volume 24, page 116; concerning 2 similar
cases; whereas in that decision the Commission observed that the
refusal by the immigration authorities to allow an immigrant to enter
the United Kingdom in order to join a close member of his family,
raises issues of law and fact whose determination should depend upon
an examination of the merits of the case and whereas the Commission
consequently declared that Application to be admissible;

Whereas, however, in the present case the Commission has had regard to
the particular circumstances which lead to a different conclusion;

Whereas, indeed, it is to be observed that the refusal by the
authorities of entry or continued residence of the husband did not
prevent the wife and children from joining him abroad, no reason
appearing, given the short period of their residence in the United
Kingdom, why they could not do so; and whereas the refusal, therefore,
would not have constituted a separation of the family by the
authorities, if the wife and children were entitled to, and chose, to
remain in the United Kingdom;

Whereas consequently an examination of the case as it has been
submitted, including an examination made ex officio does not disclose
any appearance of a violation of the right for respect for family life
set forth in Article 8 (Art. 8) of the Convention; whereas it follows
that this part of the Application is manifestly ill-founded within the
meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;

Whereas the Applicants have also submitted that their rights under
Article 6, paragraph (1) (Art. 6-1), in the determination of the first
Applicant's civil rights to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established
by law were violated in that neither the proceedings before the
immigration authorities did meet the requirements of Article 6,
paragraph (1) (Art. 6-1), nor did the Applicants have any right under
the law of the United Kingdom to resort to an independent and impartial
tribunal whether by way of appeal or otherwise;

Whereas the right to enter and reside in a country is determined by
public law, through acts of public administration, from which it
follows that the term "civil rights", in Article 6, paragraph (1)
(Art. 6-1), does not include any such right and that therefore neither
the decision to grant or refuse entry, nor the proceedings through
which that decision is reached, are governed by the provisions of
Article 6, paragraph (1) (Art. 6-1);

Whereas, insofar as the rights of the Applicants to live together as
a family may be among the "civil rights" covered by Article 6,
paragraph (1) (Art. 6-1), the Commission has found that the initial
refusal of entry to, or continued residence in, the United Kingdom of
the first Applicant did not, in all the circumstances of the case,
constitute a separation of the family or an interference with those
rights, by the acts of the authorities; whereas consequently, the
decision of refusal did not purport to be, and was not, a determination
of any "civil rights" within the meaning of Article 6, paragraph (1)
(Art. 6-1) (see decision on admissibility of Application No 2992/66,
loc cit, page 131);

Whereas it follows that this part of the Application is incompatible
with the provisions of the Convention within the meaning of Article 27,
paragraph (2) (Art. 27-2);

Whereas the Applicants further allege a discrimination, within the
meaning of Article 14 (Art. 14) of the Convention, between them and
certain other citizens of the United Kingdom and Colonies, in respect
of entry to, and residence in, the United Kingdom; whereas, in this
respect, it is to be observed that Article 14 (Art. 14) only prohibits
discrimination with regard to the enjoyment of the rights and freedoms
set forth in the Convention and the Protocol (P1) (see decisions on the
admissibility of Applications Nos 472/59, Yearbook, Volume III, page
212 and Nos 1821 and 1822/63, Collection of Decisions, Volume 19, page
70);

Whereas the Commission has already found that a right to be admitted
to a particular country or a certain part of it is not as such
guaranteed by any of the provisions of the Convention; whereas it
follows that the exclusion or restriction upon entry or residence of
some individuals and not others cannot constitute discrimination in
respect of a right or freedom guaranteed by the Convention; whereas it
follows that, also under this aspect, the Application is incompatible
with the provisions of the Convention within the meaning of Article 27,
paragraph (2) (Art. 27-2);

Whereas the Applicants' allegation concerning discrimination within the
meaning of Article 14 (Art. 14) is further to be considered in
conjunction with the complaint made under Article 8 (Art. 8); whereas
the Commission has already found that, in the particular circumstances
of this case, the refusal of the immigration authorities to allow the
first Applicant to enter the United Kingdom without restrictions cannot
constitute a violation of the right to respect for family life; whereas
it is true that, according to the Commission's jurisprudence (see
Application No 2299/64, Grandrath against Federal Republic of Germany,
Commission's Report of 12 December 1966, page 33, Resolution of the
Committee of Ministers (67) DH 1 of 29 June 1967; Belgian Linguistics
Case, Commission's Report of 24 June 1965, page 374), Article 14
(Art. 14) may be violated in a field dealt with by another Article
although there is otherwise no violation of that Article.

Whereas, however, with regard to the question whether there has been
any discrimination as to the Applicants' right to respect for their
family life, it is to be observed that, under the Commonwealth
Immigrants Act 1962, throughout the period of his stay in the United
Kingdom, the first Applicant, as all citizens of the United Kingdom,
was allowed to be joined by his family and to live together with them;
whereas, therefore, regardless of the question whether there was a
discrimination with regard to their admission to the country, an
examination of the case does not disclose any appearance of
discrimination with regard to the Applicants' right to respect for
their family life;

Whereas it follows that this part of the Application is manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention;

Whereas the Applicants finally complain that the United Kingdom
Government was responsible for a breach of Article 13 (Art. 13) of the
Convention in that it failed to provide any effective remedy before a
national authority for the alleged violations of the provisions of the
Convention;

Whereas, however, this provision relates exclusively to a remedy in
respect of a violation of one of the rights and freedoms set forth in
the other Articles of the Convention (see the Commission's decisions
on the admissibility of Applications Nos 472/59, Yearbook, Volume III,
page 212, and No 655/59, Yearbook, Volume III, page 286);

Whereas, the Applicants not having established even the appearance of
a violation of one of the other rights invoked by them, there is in the
present case no basis for the application of Article 13 (Art. 13) of
the Convention;

Whereas it follows that this part of the Application is incompatible
with the provisions of the Convention within the meaning of Article 27,
paragraph (2) (Art. 27-2) of the Convention (see also decision on the
admissibility of Application No 2992/66, Collection of Decisions,
Volume 24, page 131);

Now therefore the Commission declares this Application INADMISSIBLE.[/align]