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Publication:A 094
Title:Abdulaziz, Cabales and Balkandali v. The United Kingdom
Application No:9214/80, 9473/81, 9474/81
Respondent:The United Kingdom
Referred by:Commission
Date of reference by Commission:14-10-1983
Date of reference by State:
Date of Judgment:28-05-1985
Articles:8
14
3
13
50
Conclusion:Violation of article 8 jo. 14
No violation of article 3
Violation of article 13
Compensation awarded for costs and expenses
Keywords:RESPECT FOR FAMILY LIFE / DISCRIMINATION / DEGRADING TREATMENT OR PUNISHMENT / EFFECTIVE REMEDY

Summary:
Applicants lawfully and permanently settled in the United Kingdom - Mr. Abdulaziz, Mr. Cabales and Mr. Balkandali not permitted to remain with or join them as their husbands (Immigration Act 1971 and 1980 Immigration Rules).

Article 8
Applicability:
1. Although some aspects of the right to enter a country are governed by Protocol No. 4 (not ratified by United Kingdom), measures in the field of immigration may affect right to respect for family life under Article 8 of the Convention - applicants complained not of being refused leave to enter or remain in United Kingdom but of being deprived or threatened with deprivation of the society of their spouses there.
2. Whilst Article 8 "presupposes the existence of a family", not all intended family life falls entirely outside its ambit - "family" must include the relationship arising from a lawful and genuine marriage, such as that of Mrs. Abdulaziz and of Mrs. Balkandali.
3. Plea that, having regard to question as to validity of her marriage, Mrs. Cabales' application inadmissible ratione materiae dealt with as going to the merits - in the circumstances, committed relationship established between her and Mr. Cabales was sufficient to attract application of Article 8.
Conclusion: Article 8 applicable.

Compliance:
1. In addition to negative undertaking that there should be no arbitrary interference by the public authorities, there may be positive obligations inherent in an elective respect for family life - in this area, Contracting States enjoy wide margin of appreciation in determining steps to be taken.
2. Duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a Contracting State to respect married couples' choice of country of residence and to accept the non-national spouses for settlement - since not established on the facts that this principle should not apply here, no "lack of respect" for applicants' family life.
Conclusion: no violation.

Article 14, taken together with Article 8
Since facts at issue fell within ambit of Article 8, Article 14 applicable.

Alleged discrimination on ground of sex:
1. Under 1980 Immigration Rules, easier for man settled in United Kingdom than for woman so settled to obtain permission for non-national spouse to enter or remain in the country.
2. Rules had legitimate aim of protecting domestic labour market at time of high unemployment - however, advancement of the equality of the sexes being a major goal in the Council of Europe member States, difference of treatment on ground of sex can be regarded as compatible with Convention only if very weighty reasons advanced.
3. In the light of the statistics, Court not convinced that difference that may exist between respective impact of men and of women on labour market sufficiently important to justify the difference of treatment.
4. Court not persuaded that Rules' additional aim of advancing public tranquillity served by distinction drawn therein between men and women.
5. Discrimination within meaning of article 14 includes in general cases where person or group treated, without proper justification, less favourably than another, even though the more favourable treatment not required by Convention.
Conclusion: violation.

Alleged discrimination on ground of race:
1.1980 Rules made no distinction on ground of race - this, conclusion not altered by special features of the Rules on which applicants relied.
2. Fact that at relevant time fewer white people than others affected by the Rules derived not from their content but from preponderance, amongst would-be immigrants, of some ethnic groups.
Conclusion: no violation.

Alleged discrimination on ground of birth:
1. As between women citizens of the United Kingdom and Colonies settled in United Kingdom, only those born or having a parent born there could, under the 1980 Rules, have their non-national husband accepted for settlement.
2. This difference of treatment on ground of birth - complained of by Mrs. Balkandali had a legitimate aim and its results not shown to transgress the principle of proportionality.
Conclusion: no violation.

Article 3
Difference of treatment complained of not "degrading": did not denote contempt or lack of respect for applicants' personality and was not designed to, and did not, humiliate or debase.
Conclusion: no violation.

Article 13
Discrimination on ground of sex was result of norms that in this respect were incompatible with Convention - since latter not incorporated into United Kingdom domestic law, there could be no "effective remedy".
Conclusion: violation,

Article 50
Damage: Claim for monetary compensation for non-pecuniary damage not accepted - in the circumstances, sufficient just satisfaction provided by findings of violation. Costs and expenses: Applicants' claims accepted.
Conclusion: United Kingdom to pay specified sums for costs and expenses.

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Last Modified: 13-01-2014 16:18:19 (Documentation SIM)