CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 juillet 1970

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts presented by the applicant may be summarised as follows:   The applicant is a citizen of Pakistan, born in 1932 and resident in Rawalpindi, West Pakistan.   On 6 November 1968 he lodged with the European Commission of Human Rights an application under Article 25 of the Convention complaining of his arrest in the United Kingdom in 1958, his conviction and sentence on 16 May 1968 by the H. Borough Court on a charge of indecent assault and the loss of certain property as a result of his deportation.   The applicant also made certain further complaints in relation to the effect of deportation on his family life, the alleged refusal by the authorities to allow him to see his son and Mrs. C. who is the mother of his child, and the alleged refusal by the authorities to allow him to marry Mrs. C. in prison. In this connection he explained that he had a son by Mrs. C., an English woman living in L.. He stated that up to April 1968 he was paying Mrs. C. a weekly sum as maintenance and that while he was in prison in L. she applied to the Prison Governor to marry him and he sent his consent to the Home Office. However, permission was refused and the applicant's allegations in this respect were supported by two letters from Mrs. C. who said that their son was pining for his father. The applicant further stated that he was not allowed to see his son or Mrs. C. before leaving England.   Proceedings before the Commission   The Commission examined the applicant's complaints on 2 February 1970 and, by partial decision, declared inadmissible certain parts of the application. The Commission found that, in regard to his complaints relating to his arrest and to certain irregularities in the course thereof, as well as in regard to his conviction and sentence and the court proceedings concerned, the applicant had failed to exhaust domestic remedies (Articles 26 and 27 (3), of the Convention). In regard to his complaints relating to his deportation from the United Kingdom the Commission found that they were incompatible with the provisions of the Convention ( Article 27 (2)) insofar as these complaints concerned deportation as such, and manifestly ill-founded (Article 27 (2)) insofar as they might be considered in relation Article 3 of the Convention. Furthermore, the Commission rejected as being manifestly ill-founded the applicant's complaints regarding the loss of his property.   However, in regard to his complaints in relation to the effect of deportation on his family life, the alleged refusal by the authorities to allow him to see his son and Mrs. C. before deportation, and the alleged refusal to allow him to marry Mrs. C. in prison, the Commission decided, in accordance with Rule 45 (3) of its Rules of Procedure to give notice of these complaints to the United Kingdom Government and to invite the Parties to submit their observations in writing on the question of admissibility.   The United Kingdom Government submitted its observations on 25 March 1970 and the applicant sent his observations in reply on 23 May 1970.   Submissions of the Parties   1. (a) The respondent Government first refers to Part II of the Commonwealth Immigrants Act 1962 which governs the deportation from the United Kingdom of such persons who are Commonwealth citizens within the meaning of Section 6 of that Act. Under Section 7 (1) of the Act, where such Commonwealth citizen who has attained the age of seventeen years is convicted of an offence punishable with imprisonment, the court by which he is convicted may recommend that a deportation order be made in respect of him. Section 7 (2) provides that no recommendation for deportation may be made where the Commonwealth citizen satisfies certain residence requirements (five years prior to conviction) and under Section 9 (1), where such recommendation has been made, the Secretary of State may make an order requiring the Commonwealth citizen concerned to leave the United Kingdom and prohibiting him from returning there so long as the order is in force.   (b) The respondent Government next sets out the relevant facts. According to the Government's submissions the applicant, who is a Commonwealth citizen on 16 May, 1968 pleaded guilty at H. B. Magistrates' Court to two offenses of indecently assaulting a girl aged fourteen years and to one offence of indecently assaulting a girl aged eleven years. He was sentenced to two months' imprisonment in respect of each offence to run consecutively and the Court made a recommendation under Section 7 (1) of the above Act that he be deported. Section 7 (2) of the Act did not apply to the applicant who had come to the United Kingdom in July 1963.   Following his conviction the applicant was detained at L. prison. During his detention he made ten applications for visiting orders for Mrs. C. all of which were granted and the latest of which resulted in a visit by Mrs. C. on 7 September 1968. The applicant made no subsequent application for visiting orders whilst at L. prison nor has any complaint been received from him concerning the alleged refusal of the prison authorities and the police to allow him to see Mrs. C. and his son before he was deported.   Furthermore, in various interviews conducted by the prison and immigration authorities the applicant stated that he was married with four children, his wife living in Pakistan, that he had been giving her financial support and that he intended to arrange for his wife and children to join him in the United Kingdom in the middle of 1968. He had previously informed the police officers investigating his case of his wife and four children in Pakistan and, on 11 September 1968, petitioned the Home Secretary not to make a deportation order against him submitting, inter alia, that he was supporting his wife, his parents, his widowed sister and his four children in Pakistan from the wages he earned in the United Kingdom.   In his said petition the applicant further stated that he was also supporting this son by Mrs. C. by giving her £1.25 weekly towards his maintenance and that he did not wish the child to be without a father. Mrs. C. herself in September 1968 had written a letter to the Home Secretary asking that the applicant should not be deported as she wished to marry him and he was the father of her two youngest children. At about the same time she had addressed a letter to the Governor of L. prison asking for permission to marry the applicant but in view of the information available to the Governor that the applicant was already married and his wife was alive in Pakistan it had not been possible to accede to her request.   Mrs. C. was subsequently interviewed by the police and it was ascertained that she was a widow, that she had known the applicant for almost five years, and that she had five children, four by her husband and the youngest, a two-year-old boy, by the applicant.   Giving full and careful consideration to the matters set out in the applicant's petition and in Mrs. C.'s letter to the Home Secretary, the latter made on 18 September 1968 an order under Section 9 (1) of the Act for the deportation of the applicant which was carried out on 9 October 1968.   (c) The United Kingdom Government submits that, in the light of these facts, the remainder of the applicant's application is either incompatible with the provisions of the Convention or, in the alternative, manifestly ill-founded.   The Government considered under Article 8 of the Convention the applicant's complaint relating to the effect of deportation on his family life and submits in the first place that there was no interference with his family life by the authorities and thus no violation of paragraph (1) of that provision. The Government points out that deportation of the applicant resulted in his return to Pakistan where his wife and their children reside, that it remains open for the applicant to arrange for Mrs. C. and her son to join him there, and that, finally, by committing offenses resulting in his conviction he placed himself, by his own actions, in jeopardy of deportation and thus an ensuing disruption of his family life for which he was alone responsible could not be regarded as an interference with such family life within the meaning of Article 8 (1).   The Government next submits that, even assuming that the deportation of the applicant could be considered as constituting an interference with his right to respect for his family life, such interference was, in the circumstances, allowed under paragraph (2) of Article 8 of the Convention as being in accordance with the law and necessary in a democratic society for the prevention of disorder or crime or for the protection of health and morals.   The Government then considered under Article 8 of the Convention the applicant's complaint relating to the alleged refusal of permission to see his son and Mrs. C. before his deportation from the United Kingdom. The Government submits that this allegation is without substance in view of the numerous visits which the applicant had from Mrs. C. and his son and of the fact that, subsequent to 7 September 1968 no application for such a visit had been made by him.   The respondent Government finally considered under Article 12 of the Convention the applicant's complaint that he was not allowed to marry Mrs. C. in prison. In this connection the Government submits that under that provision the right to marry is secured only according to the national laws governing the exercise of that right, and English law precludes a marriage in England between persons one of whom is a party to a persisting marriage. Consequently, since the applicant at the time was already married, he had no right under Article 12 of the Convention to contract a further marriage in England with Mrs. C. and leave to marry in prison was legitimately refused by the Home Secretary being the authority responsible for his imprisonment.   2. The applicant's observations in reply have been submitted on 23 May 1970. Insofar as it is possible, from the incoherent terms of the applicant's submissions, to ascertain the substance of his reply, it appears that he considers the United Kingdom Government's observations on admissibility as not showing the true facts of his case.   He first submits again that he was wrongly convicted and sentenced and that his deportation was not according to law. In this respect he refers to submissions previously made to the Commission and, in particular, to his letter to the Home Office, dated 4 June 1969 in which he had appealed against the deportation order.   He further submits that, "before one month of this case" , he had obtained a divorce by telephone from his wife in Pakistan in accordance with Muslim law. He contends that the prison authorities must have misunderstood his statement that he was obliged to pay maintenance to his wife and children in Pakistan in that they inferred from this that he was still married. In fact, however, he had been divorced but was nevertheless under an obligation to support his wife and children.   Furthermore, it was true that the prison authorities had allowed certain visits to which, in his opinion, he was entitled. However, they had not allowed "the special and last visit" of Mrs. C. and his children in England before deporting him although he had asked the Governor's and Welfare Officer's permission for that visit. Moreover, the authorities had consistently refused his requests to see the representative of Pakistan at L..   The applicant finally submits that as a result of his deportation he is presently suffering considerable hardship in Pakistan. He states that he has not yet received his clothes, papers and other personal goods which he was obliged to leave behind in England. Without these papers and certificates he is allegedly unable to find employment in Pakistan and is obliged to borrow money in order to survive. He also states that, in the meanwhile, his property in England had partly been stolen or destroyed or sold and that he had not received any value in return for the loss suffered. In this connection, he encloses a complete list of the objects concerned.   The applicant refers specifically to the terms of his letter of 4 June 1969 to the Home Office copy of which he had previously submitted in support of his application and now includes again in his observations on admissibility. He alleges generally that the injustices which he has suffered are the consequences of racial discrimination.   He requests compensation in the amount of £2,000 or permission to return to England.   THE LAW   Whereas, with regard to the applicant's complaint relating to the effect of deportation on his family life, the Commission had regard to Article 8 (Art. 8) of the Convention which guarantees generally the right to family life; whereas, however, paragraph (2) of Article 8 (Art. 8-2) of the Convention provides that "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";   Whereas the Commission has stated in a number of previous decisions (for instance, Application No. 3170/67, X. v. Belgium and the United Kingdom) that the terms of paragraph (2) (Art. 8-2) left a considerable measure of discretion to the domestic authorities in taking into account factors in the case which might appear to them to be critical for the prevention of disorder or crime; whereas, nevertheless, the Commission has ultimately the duty to judge whether or not the interference complained of exceeded the margin of appreciation left to the authorities in such cases and was thus not justified under the provisions of paragraph (2) (Art. 8-2);   Whereas, in the present case, the Commission observes that the applicant has been convicted of three offenses of indecently assaulting a girl under age after having pleaded guilty to these offenses;   Whereas the court by which he was convicted made a recommendation under Section 7 (1) of the Commonwealth Immigrants Act 1962, that a deportation order be made in respect of him; and whereas it is clear that the court and the authorities were concerned, when deciding the question of his deportation, with the necessity of preventing disorder or crime in the United Kingdom;   Whereas the Commission finds that the decisions taken in this respect were reasonable having regard to the seriousness of the offenses concerned and in no way exceeded the "margin of appreciation" as regards the measures necessary in the circumstances for the prevention of disorder or crime within the meaning of Article 8 (2) (Art. 8-2) of the Convention;   Whereas the Commission concludes that, even assuming that any family life within the meaning of Article 8 (Art. 8) of the Convention existed in the present case, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 27, paragraph (2) (Art. 27-2), of the Convention;   Whereas, with regard to the applicant's complaint relating to the alleged refusal of permission to obtain the visit of his son and Mrs. C. before the deportation from the United Kingdom, the Commission had again regard to the provisions of Article 8 (Art. 8) of the Convention;   Whereas it is not contested that on several occasions the applicant had the visit of Mrs C. and his son in prison but he alleges that the authorities refused him the "last and special visit" prior to his deportation; whereas, however, the applicant failed to show that he made a formal request for that visit or that any visit requested by him had been refused by the authorities;   Whereas, consequently, the Commission finds that, again assuming the existence of a family life within the meaning of Article 8 (Art. 8) of the Convention, an examination of the application does not disclose any appearance of violation of the rights and freedoms set forth in the Convention and, in particular, in Article 8 (Art. 8);   Whereas it follows that this part of the application is equally manifestly ill-founded and must be rejected in accordance with Article 27, paragraph (2) (Art. 27-2), of the Convention;   Whereas finally, in regard to the applicant's complaint that he was not allowed to marry Mrs. C. in prison, the Commission had regard to Article 12 (Art. 12) of the Convention which provides that "men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right;   Whereas the Commission observes that, according to the information available at the time at which the authorities refused the applicant's petition to marry Mrs. C. in prison he was married in Pakistan and that English law precludes a marriage in England between persons one of whom is a party to a subsisting marriage; whereas his statement that he was divorced from his wife in Pakistan prior to his deportation has apparently only been made during the proceedings before the Commission, i.e. after his deportation; whereas these submissions have not been substantiated by any evidence nor has the applicant shown that he made it clear to the United Kingdom authorities, prior to his deportation, that he was no longer married in Pakistan;   Whereas, consequently, an examination of this complaint as it has been submitted also does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention and, in particular, in Article 12 (Art. 12); 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.   Now therefore the Commission DECLARES THE REMAINDER OF THIS APPLICATION INADMISSIBLE