THE FACTS

The facts presented by the parties and apparently not in dispute
between them may be summarised as follows:

The applicant is a Greek national, born in Athens in 1938 and at
present resident in London. He is married and has one daughter, who was
born in April 1965. His wife, who is English, lives with the daughter
in Sunderland in the north of England.

The applicant and his wife were married in Sierra Leone in 1964. They
came to the United Kingdom in October 1966, when the applicant was
admitted for an initial period of twelve months. In August 1967 they
left England to go and live in Greece.

The applicant was apparently tricked into allowing his wife to bring
their daughter into the United Kingdom from Greece in August 1969 and
since then the daughter has been living in England against his will.
In order to support his child financially and morally the applicant has
been forced to go and live in the United Kingdom as well. In September
1969 he was admitted for three months as a visitor. He returned again
to the United Kingdom in February 1970 and was once more admitted for
a period of three months, during which time he applied to the Home
Office for an extension of his permitted stay. After obtaining
employment approved by the Department of Employment his leave to stay
was extended for twelve months until .. May 1971. In July 1971 this
permission was extended for a further year, i.e. till .. May 1972.

From the time that the applicant followed his wife and daughter to
England in September 1969 he had been living separate from them though
contributing regularly to their maintenance. On .. October 1969 the
child was made a ward of court, care and control being given to the
mother. On .. January 1972, the High Court confirmed that the child
should remain a ward of court and under her mother's care and control;
at the same time her father was granted access to her for one weekend
per month. An appeal lodged by the applicant against this order was
dismissed.

In May 1972 the applicant applied for permanent residence in the United
Kingdom. No decision had been taken on this application when, in July
1972, he temporarily left the country. He returned on .. August 1972
and was then admitted for one month only. He subsequently left the
United Kingdom again for a short period, returning on .. August 1972,
when he was given leave to stay for three months.

On .. January 1973 the Home Office informed the applicant that as he
was not living with his family he could not claim to remain in the
United Kingdom as a "foreign husband", i.e. merely on the ground
that he was married to a British wife, and his application for
permanent residence was refused. He was merely given an extension of
stay until .. May 1973. On .. January 1973 the applicant was informed
of his right of appeal to an adjudicator against this decision of the
Home Office. No such appeal was lodged by the applicant, apparently
because he did not consider that the appeal was relevant to his case.

Complaint

The applicant complains of the difficulties he has had in obtaining
permission to stay in the United Kingdom. It appears from a letter
dated 4 September 1972 to the Commission that he is concerned that he
might lose the right to live in England and thereby be permanently
deprived of access to his child.

PROCEEDINGS BEFORE THE COMMISSION

By two partial decisions, of 14 (1) and 20 December 1972 (2), the
Commission declared other parts of the present application
inadmissible, but decided, in accordance with Rule 45, 3 b) of the
Commission's Rules of Procedure, to give notice of the application to
the Government of the United Kingdom and to invite it to submit its
observations in writing on the question of admissibility of the
application so far as it concerns the above complaint, which the
Commission considered might give rise to a question under Article 8 of
the Convention.
--------------------------
(1)  see page 66.
(2)  see footnote page 70.
--------------------------
On 27 February 1973 the Government submitted its observations on
admissibility. The applicant's reply was submitted on 18 March 1973 and
he has subsequently written three further letters to the Commission,
dated 1 June, 14 June and 16 July 1973.


SUBMISSIONS OF THE PARTIES ON ADMISSIBILITY

1.   United Kingdom law and practice

The respondent Government first makes submissions on relevant aspects
of the United Kingdom's law and practice concerning immigration. It
states that an alien who has married a British wife does not as such
acquire a right to live in the United Kingdom. However, in 1966 when
the applicant came to the United Kingdom it was the practice that an
alien married to a British woman could be admitted to join her in the
United Kingdom if she had substantial residential and family
connections there and provided that he was not personally undesirable.
If an alien satisfied the immigration officer that he complied with
this test he would be admitted for an initial period of twelve months
without restrictions on his employment. At the end of the twelve months
the time limit would normally be cancelled providing the marriage
subsisted and he was living with and supporting his wife and family.
If these conditions were satisfied, the alien fell within the category
known as the "foreign husband" category in the policy controlling
immigration.

The Government continues that under another head of United Kingdom
immigration policy, when an alien has remained in the United Kingdom
for four years in approved employment, and had not spent substantial
periods outside the United Kingdom, consideration may be given to
removing both the restrictions on his stay and on his employment,
subject to the consideration of all the relevant facts such as whether
in the light of his character, conduct or associations it is
undesirable to permit him to stay. This category is recognised under
the present, as well as previous, immigration rules, and extracts from
the 1970 Rules and the 1973 Rules are attached as an annex to the
submissions.

The Government also points out that a person who has a limited leave
to enter or remain in the United Kingdom has a legal right of appeal
to an adjudicator against any variation of the leave or against any
refusal to vary it. An adjudicator may allow the appeal if the decision
or action is not in accordance with the law or applicable immigration
rules, or if, where a decision involves the discretion of the Secretary
of State or one of his officers, the adjudicator considers that
discretion should have been exercised differently.

2.   Relevant facts

Commenting on the facts of the case relevant to admissibility, the
respondent Government states that after the applicant's entry into the
United Kingdom in February 1970, and following his application to the
Home Office for an extension of his permitted stay, he was told that
his marriage gave him no claim to remain as a "foreign husband",
because he was living apart from his wife. In March 1971 he was
informed that if he remained in the United Kingdom for four years and
did not spend substantial periods of time outside the country,
consideration would be given to cancelling the conditions under which
he was allowed to stay, in accordance with the policy set out above.
The applicant was reminded of this policy in the letter from the Home
Office mentioned above of .. January 1973.

Referring to the time in May 1972 when the applicant applied for
permanent residence in the United Kingdom, the respondent Government
states that enquiries were then made about the subsistence of the
marriage. These revealed that he and his wife were living apart and
there was little hope of a reconciliation. In the meantime the
applicant left the United Kingdom in July 1972. When he returned on ..
August 1972, the applicant, in answer to a question from an immigration
officer about his proposed length of stay, informed the officer that
depended on his marital relations and that he was considering a
divorce. He was then admitted for one month and advised to contact the
Home Office immediately regarding an extension of his stay.

In reply, the applicant refers first to the Government's statement
above that in 1970 he was told he had no claim to remain in the United
Kingdom as a "foreign husband" and makes the following observation:
"However at that time the Home Office did not have any evidence that
I was not living constantly with my wife. I was never informed that I
might have fallen into another category, on the contrary many a time
I tried for a personal interview with a senior Home Office official but
was never granted access to one."

The applicant denies having said to an immigration officer on .. August
1971 that he was considering a divorce. Under no circumstances would
he consider a divorce before his daughter's security is ensured or
before she reaches the age of 16. The applicant continues that far from
being advised by the immigration officers to contact the Home Office
he had the greatest difficulty in entering the United Kingdom. He was
able to do so only after satisfying them that in a few hours time he
was due to attend a court hearing concerning his daughter.

3.   Questions of admissibility

The respondent Government contends that the applicant is not the victim
of a violation of the Convention and that he has not exhausted the
domestic remedies which are available to him.

The respondent Government refers to the constant jurisprudence of the
Commission (and in particular Applications Nos 172/56 I Y.B. page 211
and 1855/63, VIII Y.B. page 200) according to which the right of a
person to enter and take up residence in a country of which he is not
a national is not as such guaranteed by the Convention, although in
certain circumstances the refusal to give persons access to, or allow
them to take up residence in a particular country, might result in the
separation of such persons from the close members of their family which
could raise serious problems under Article 8 of the Convention.

In this case, however, it is submitted, it is clear that at no time up
to the present has the applicant been refused entry into the United
Kingdom. Moreover he has now been given an extension to stay in the
country till .. May 1973 and this may be varied to allow a further
extension. The Government also refers to the provision in the
immigration rules whereby, subject to residence requirements and
general considerations concerning a person's behaviour, an alien who
has been in employment in the United Kingdom for four years may apply
for consideration to be given to cancelling the conditions under which
he is allowed to remain in the country.

The respondent Government therefore submits that the applicant has at
no stage been prevented from exercising his right of access to his
daughter by reason of any action of the Government, since at no time
has he been refused entry. It is the submission of the Government that
as the applicant has at no time suffered an interference with his
rights under Article 8 as a result of its actions the applicant cannot
claim to be a victim of a violation within the meaning of Article 25
(1). Accordingly, the applicant's complaint is incompatible with the
provisions of the Convention or, in the alternative, is manifestly
ill-founded.

Without prejudice to the foregoing submission, the Government submits
that the right of appeal to an adjudicator referred to above, against
a refusal to vary the terms of entry into the United Kingdom,
constitutes a domestic remedy within the meaning of Article 26 of the
Convention which is required to be exhausted. Reference is made again
to Application No. 172/56 I Y.B. page 200 and in particular to pages
217 and 218. It is accordingly submitted that the application should
be rejected under Article 27 (3) of the Convention.

The applicant, in reply, refers to the Government's statement that he
has at no stage been prevented from exercising his right of access to
his daughter by reason of any action of the Government. He comments as
follows:  "(From) February 1970 to the present time I feel that not
only myself but also my daughter, from the financial point of view,
have been victims of indirect threats by way of 'limited time of stay',
'conditions of stay', 'restrictions of employment' which have resulted
in restricted means of supporting ourselves, and for me an
impossibility to see my daughter every month as many a time I cannot
afford the weekend trip from London to Sunderland, which for the said
period and whilst I was working represented the 30 per cent of my
monthly gross pay."

The applicant considers that all domestic remedies have been exhausted.
He makes no further observations on why he did not appeal against the
Home Office decision communicated to him by the letter dated .. January
1973.

In the conclusion, the applicant states that it is not by choice that
he remains in the United Kingdom, but because of the decisions forced
upon him by the British authorities. He will only accept that his
daughter and consequently he himself remain there provided that from
the very beginning they enjoy all the rights afforded to the rest of
the United Kingdom population with no restrictions whatsoever.

4.   Supplementary submissions of the applicant

After filing his submissions on admissibility the applicant wrote
further letters to the Commission, dated 1 June, 14 June and 16 July
1973. He also submitted copies of recent correspondence between himself
and the Home Office.

From these letters and documents it appears that the applicant wrote
to the Home Office on .. May 1973 with regard to his residence in the
United Kingdom. He was then apparently given leave to remain in the
country until .. July 1973. After the applicant had written again to
the Home Office, requesting an unconditional and unlimited stay in the
United Kingdom, the Home Office replied on .. June 1973 informing him
that he was still not entitled to foreign husband conditions nor was
he eligible for the removal of the time limit attached to his leave to
enter. He was told that, if he wished his permitted stay in the United
Kingdom to be extended for a further period, he should re-submit his
application with supporting documents including either a letter from
his employer confirming that the employer wished to retain his services
or documentary evidence of his ability to maintain himself without
working. He was warned that otherwise he would be expected to leave the
United Kingdom by .. July 1973. Finally, he was told that if he wished
to exercise his right of appeal against this decision he should notify
the Home Office and the appropriate appeal forms would be sent to him.

The applicant states that he does not accept the conditions contained
in the Home Office letter of .. June and he asks the Commission to
intervene.

THE LAW

The applicant has complained of the difficulties he has had in
obtaining permission to remain in the United Kingdom. It appears that
he is concerned that he may be permanently deprived of access to his
child. The Commission recalls that in its partial decision on
admissibility of 20 December 1972 it considered that this complaint
might give rise to an issue under Article 8 (Art. 8) of the Convention;
this Article secures to everyone the right to respect for his private
and family life.

The Commission notes from the applicant's supplementary submissions
(see page 7 above) that the most recent decision taken by the United
Kingdom authorities affecting his permission to stay in the United
Kingdom is that communicated to by the letter from the Home Office of
.. June 1973. The effect of this decision was that the applicant was
refused permission to stay in the United Kingdom after .. July 1973
unless he satisfied certain conditions. The applicant states that he
does not accept these conditions and asks the Commission to intervene.
The complaint which he has made to the Commission can therefore now be
considered as being directed against the decision of the Home Office.

The respondent Government submitted in its observations of 27 February
1973 that the applicant had at that time never been prevented from
exercising his right of access to his daughter by reason of any action
of the Government, since he had at no time been refused entry into the
United Kingdom. It was therefore submitted that the applicant could not
claim to be a victim of a violation of the Convention within the
meaning of Article 25 (1) (Art. 25-1) with the result that his
complaint was incompatible with the provisions of the Convention or,
in the alternative, manifestly ill-founded. The Government further
submitted that in any event the application should be rejected under
Article 27 (3) (Art. 27-3) of the Convention since the applicant had
failed to appeal to an adjudicator against the Home Office decision of
which he was complaining and had therefore not exhausted the domestic
remedies open to him.

The applicant, on the other hand, has submitted that all domestic
remedies have been exhausted. It appears that he considers that an
appeal to an adjudicator was not relevant to his case.

The Commission observes that there have been developments in this case
since the date on which the respondent Government submitted its
observations on admissibility. At that time the most recent decision
affecting the applicant's stay in the United Kingdom was that of ..
January 1973, by which the applicant was refused permanent residence
but was given permission to remain in the country until .. May 1973.
On the other hand, the decision which the Commission is now concerned
with is, as stated above, that of .. June 1973, refusing the applicant
permission to remain in the United Kingdom after 31 July 1973 unless
he satisfied certain conditions. The Commission does not, however, find
it necessary to request the respondent Government to make further
submissions in the light of these new circumstances, or even to comment
on the recent factual situation as it has been presented by the
applicant, since it is satisfied, for the reasons set out below, that
the application is inadmissible.

The Commission recalls that under Article 26 (Art. 26) of the
Convention it may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law. In the present case the applicant failed to appeal
to an adjudicator against the decision communicated to him in the Home
Office letter of .. June 1973 and has therefore not exhausted the
remedies available to him under English law. The Commission observes
that in any event the refusal of the applicant to satisfy the
conditions laid down by the Home Office, which he has not shown to be
unreasonable, could in itself be considered as a failure to exhaust the
remedies open to him. Moreover, an examination of the case as it has
been submitted does not disclose the existence of any special
circumstances which might have absolved the applicant, according to the
generally recognised rules of international law, from exhausting the
domestic remedies at his disposal.

It follows that the applicant has not complied with the condition as
to the exhaustion of domestic remedies and his application must be
rejected under Article 27 (3) (Art. 27-3) of the Convention.

For these reasons, the Commission DECLARES THIS APPLICATION
INADMISSIBLE.