CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 mars 1988

.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 }  AS TO THE ADMISSIBILITY     Application No. 12894/87 by Semmy KASSIM against the United Kingdom             The European Commission of Human Rights sitting in private on 8 March 1988, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      J. CAMPINOS                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                   Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 5 June 1986 by Semmy KASSIM against the United Kingdom and registered on 2 May 1987 under file No. 12894/87;           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 applicant is a citizen of Nigeria, born in 1947 and now detained in HM. Prison High Point, Stradishall.           The facts of the case, as apparently agreed by the parties, may be summarised as follows:           The applicant entered the United Kingdom in 1980 as a student and married a citizen of the United Kingdom in 1982.   He acquired various business qualifications and his wife was assured in August 1983 by the Home Office that at that time, after his arrest on suspicion of criminal offences, there was no question of deporting him in the immediate future, and that if a recommendation to deport were to be made by a court following a conviction any compassionate circumstances would be taken into account before a final decision would be reached.   The couple had a child, a son, in October 1983.           In March 1985 the Southwark Crown Court convicted the applicant on 11 counts of obtaining property by deception and sentenced him on 10 April 1986 to 18 months' imprisonment concurrent on each count, six months of which was to be suspended, and he was recommended for deportation.           On 24 February 1986 the Court of Appeal dismissed the applicant's appeals against conviction and sentence on the basis, inter alia, that there was clear evidence against the applicant. Although the Court of Appeal found the behaviour of defence counsel throughout the trial "deplorable", this did not justify the quashing of the conviction.   As regards deportation, the Lord Chief Justice held as follows:   "We take the view that the presence of the applicant in the United Kingdom is to this country's detriment in the light of the matters which have been divulged to this Court and which we have touched upon in refusing leave to appeal against conviction.   If there are any matters which should be taken into account by way of mitigation, then we leave that to the Home Secretary.   As far as this Court is concerned, we think the recommendation for deportation was correctly made and we endorse it."           The Secretary of State for the Home Department issued a deportation order against the applicant on 27 October 1986, pursuant to Sections 3(6), 5(1) and 6(1) of the Immigration Act 1971.           On 9 September 1987 the Government informed the Commission that on 26 November 1986 the Southwark Crown Court had convicted the applicant of 11 further offences of obtaining property by deception and 10 offences of procuring the execution of a valuable security by deception.   He was sentenced to four years' imprisonment.   His appeals against this conviction and sentence were still pending at that time. It is the Government's intention to deport the applicant to Nigeria on completion of his latest prison sentence.   COMPLAINTS           The applicant complains that his proposed deportation is in breach of his family rights, ensured by Articles 8 and 12 of the Convention, constitutes torture, inhuman and degrading treatment, contrary to Article 3 of the Convention, and racial discrimination contrary to Article 14 of the Convention, for which breaches he has no remedy in domestic law, contrary to Article 13 of the Convention.   The applicant also invokes Article 2 of Protocol No. 4 to the Convention and Articles 3 and 9 of an EEC directive, 64/221/EEC.           The applicant submits that his family cannot be expected to follow him to Nigeria where they have never lived, where there is no social security system, where he no longer has family and relatives and where he and his family would face undue hardship.   He contends that the Court of Appeal was wrong, and discriminatory, in leaving the question of mitigating circumstances to the Home Secretary.   He also claims that the authorities have ignored EEC immigration and nationality guidelines, and that by virtue of his long and close ties with the United Kingdom, together with the compassionate circumstances of his case, he qualifies for a right of abode there.   He does not consider that a conviction alone would, in all fairness, justify deportation, particularly as there is no evidence to suggest that he will be a threat to anyone or that he will not be completely rehabilitated on release from prison.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 5 June 1986 and registered on 2 May 1987.   On 29 July 1987, pursuant to Rule 40 para. 1 of the Commission's Rules of Procedure, the Rapporteur requested information from the respondent Government concerning the applicant's deportation. This information was provided by the Government on 9 September 1987 and the applicant submitted his comments thereon on 8 October 1987.     THE LAW   1.       The applicant has first complained that the proposal to deport him from the United Kingdom on completion of his prison sentence constitutes a breach of his right to respect for family life.           The relevant part of Article 8 (Art. 8) of the Convention provides as follows:   "1.       Everyone has the right to respect for his private and family life, ...   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."           Whilst the Convention does not guarantee a right, as such, to enter or remain in a particular country, the Commission has constantly held that the exclusion of a person from a country where his close relatives reside may raise an issue under Article 8 (Art. 8) of the Convention (e.g.   No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219, No. 9088/80, Dec. 6.3.82, D.R. 28 p. 160 and No. 9285/81, Dec. 6.7.82, D.R. 29 p. 205).           In the present case, the Commission notes that the applicant's wife and child, by virtue of their British nationality, have a right to remain in the United Kingdom.   However, the applicant has been convicted of many serious fraud offences which, according to the Court of Appeal, make his presence in the United Kingdom detrimental to that country.           It may be true that the family would face certain economic difficulties in Nigeria, despite the fact that the applicant has had higher education in the United Kingdom, whereby he has acquired various business qualifications.   Nevertheless, the Commission does not find that such difficulties in themselves constitute a serious obstacle to the whole family moving to Nigeria.           Thus, while the Commission considers that the proposed deportation of the applicant constitutes an interference with the applicant's family life under Article 8 para. 1 (Art. 8-1) of the Convention, the Commission must, in considering whether that interference was justified under Article 8 para. 2 (Art. 8-2), attach significant weight to the aforementioned factual circumstances.   The Commission concludes, therefore, that the said interference, which was in accordance with British immigration law, was justified as being necessary in a democratic society "for the prevention of disorder and crime", within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   2.       In respect of his deportation complaint the applicant has also invoked Articles 3, 12, 13 and 14 (Art. 3, 12, 13, 14) of the Convention, Article 2 of Protocol No. 4 (P4-2) to the Convention and an EEC directive.           As regards Protocol No. 4 (P4) the Commission has no competence ratione personae to examine the applicant's complaint thereunder because the United Kingdom have not ratified that Protocol.   As regards the EEC Directive, 64/221/EEC, the Commission has no competence ratione materiae to apply EEC directives as such; it only has competence to apply the Convention.           As regards Articles 3, 12, 13 and 14 (Art. 3, 12, 13, 14) of the Convention, the Commission finds no evidence to substantiate the applicant's claims thereunder: the hardship which the applicant might face in Nigeria has not been shown to be of such a serious nature as to amount to torture, or inhuman and degrading treatment, contrary to Article 3 (Art. 3) of the Convention.   The applicant has not been prevented from marrying and founding a family, rights guaranteed by Article 12 (Art. 12) of the Convention. The applicant had an effective domestic remedy before the Court of Appeal by way of an appeal against sentence, which included the recommendation to deport.   Article 13 (Art. 13) is thereby satisfied for it guarantees the opportunity to claim, at least in substance, a breach of the Convention, but it does not guarantee the successful outcome of that claim.   Finally, there is no evidence that the courts or immigration authorities were motivated by racial discrimination or otherwise discriminated against the applicant in respect of matters which affected his Convention rights, contrary to Article 14 (Art. 14) of the Convention.   3.       In these circumstances the Commission concludes that the application as a whole is manifestly ill-founded and must accordingly be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.          Secretary to the Commission          President of the Commission                 (H.C. KRÜGER)                       (C.A. NØRGAARD)