CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 juillet 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 OF   Application No. 13718/88 by C. against the United Kingdom             The European Commission of Human Rights sitting in private on 15 July 1988, the following members being present:                   MM.   C.A. NØRGAARD, President                      S. TRECHSEL                      E. BUSUTTIL                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      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 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 25 February 1988 by C. against the United Kingdom and registered on 22 March 1988 under file No. 13718/88;           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 Tanzania, born in 1957 and resident in B., England.   He is a grocer / off-licence proprietor by profession.   He is represented before the Commission by Messrs.   Thakrar & Co., Solicitors, Southall.           The facts of the case as submitted by the applicant, and which may be deduced from the documents submitted in support of the application, may be summarised as follows:           The applicant arrived in the United Kingdom on 23 October 1976 to settle there with his parents.   His father is a British Protected Person and his mother an Indian national.   The family left Tanzania allegedly under some persecution as East African Asians, the father being unable, as a British Protected Person, to obtain an extension of his trading permit from the Tanzanian authorities.   The applicant and his family were given indefinite leave of entry.           The applicant lives with and partially supports his parents. His mother works away from home during the week and his father lives with his son all the time as he is in poor health.   He provides limited assistance to the applicant in his work.   The applicant is the joint-owner of a grocery / off-licence business with his mother and has paid the mortgage on his house.   He has some savings with which the family hope to move to another town after selling the business.           On 1 September 1979 the applicant married an Indian citizen who had been allowed to enter the United Kingdom as his fiancée.   On 14 August 1980 a daughter was born to the couple.   The daughter has British nationality by virtue of her birth on United Kingdom territory.   The applicant's wife was granted indefinite leave of entry on 29 July 1982.   The couple became estranged and apparently separated in February 1983.           On returning from a visit to India on 20 November 1982 the applicant, accompanied by another woman, was arrested by HM customs at London Heathrow Airport for being in possession of approximately 10 kilos of cannabis resin which had an estimated value of £20,000.   They were both prosecuted.           On 21 March 1984 the applicant was convicted for illegal importation of cannabis and sentenced to 30 months' imprisonment.   He submits that his role in the offence was only that of courier, that the drug was not a dangerous one like heroin, that there is no danger of him re-offending, that he himself is not a drug user and that he has no other criminal convictions.           During his imprisonment the applicant was well-behaved and became reconciled with his wife.   The whole family now live together and a second child, a son, was born on 30 November 1986.           On 6 February 1985 the Home Secretary made a deportation order against the applicant under Section 3(5)(b) of the Immigration Act 1971, the applicant's deportation back to Tanzania being deemed "conducive to the public good".           The Home Office explanatory statement (dated 9 May 1985) to the Immigration Appeal Tribunal stated as follows:           "The Secretary of State carefully considered the appellant's         position in the United Kingdom.   The appellant had been         convicted of being involved in the illegal importation of a         large quantity of cannabis, with a street value of £20,000,         and had been sentenced to 30 months' imprisonment.   The         appellant was 27 years old and was of an age where he could         be expected to make a life for himself in Tanzania.   He had         spent the formative years of his life in Tanzania, coming         to the United Kingdom in 1976 when he was nineteen years old.         The appellant had been in employment prior to his conviction;         and his parents were settled in the United Kingdom.   The         appellant's marriage had not subsisted prior to his conviction         and although the appellant claimed to have been reconciled         with (his wife) he had also maintained contact with (his         co-accused).   The appellant's wife was an Indian national         who had spent the formative years of her life in India         (where her parents still resided) and had only come to the         United Kingdom in August 1979 at the age of 18; moreover her         daughter was only four years old and was of an age where she         could be expected to adapt to life in her father's country         should the parents intend to live together in the future.         There were no known compassionate factors in his favour other         than these family ties to outweigh the gravity of his offence.         Having regard to all the relevant factors, including those         set out in paragraph 156 of HC 169 (Immigration Rules), the         Secretary of State decided that in view of the appellant's         conviction and the nature and amount of the drugs involved         it would be conducive to the public good to deport the         appellant."           The relevant part of paragraph 156 of the Statement in Changes in Immigration Rules HC 169 provides as follows:           "In considering whether to give effect to a recommendation         for deportation made by a court on conviction the Secretary         of State will take into account every relevant factor known         to him, including: age, length of residence in the United         Kingdom; strength of connections with the United Kingdom,         personal history, including character, conduct and employment         record; domestic circumstances; the nature of the offence of         which the person was convicted; previous criminal record;         compassionate circumstances; any representations received..."           Paragraph 159 of HC 169 deals generally with the Secretary of State's powers to deport for reasons conducive to the public good, even where, as in this case, there has been no court recommendation to deport.   It provides that the Secretary of State must take into account all the relevant circumstances of the case including those listed in the aforementioned paragraph 156.           On 21 June 1985 the Immigration Appeal Tribunal dismissed the applicant's appeal against the deportation order for the following reasons:           "We have carefully considered the evidence and the manner in         which (the Home Secretary's) discretion should be exercised,         having particular regard to the matters set out in paragraph         156 (Immigration Rules).   In our view there are undoubtedly         compassionate circumstances in this case, in that the         appellant has strong family connections here by reason of his         parents, his daughter and his wife with whom he is now said         to be reconciled.   We also recognise that a return to Tanzania         must be a highly unpleasant prospect for him to face, and         that life will not be easy there.   Nevertheless the offence         of which he was convicted involved a large amount of cannabis         resin and was in our view of an extremely serious nature.   In         our opinion the compassionate circumstances do not outweigh         the consideration of public interest in this case, and this         appeal is dismissed."           No reference is made in the Tribunal decision to the applicant's submissions under Article 8 (Art. 8) of the Convention which had been put before the Tribunal.           The applicant sought judicial review of the Tribunal's decision on the grounds, inter alia, that there had been a failure to take into account Article 8 (Art. 8) of the Convention.   The application for leave to move for judicial review was refused by a single judge of the High Court on 4 October 1985.   On 29 January 1986 the Court of Appeal overturned that decision and granted leave.   Back before the High Court on 28 January 1987 Mr.   Justice Taylor held, after reviewing the relevant Convention case-law, including the case of Mmes Abdulaziz, Cabales and Balkandali v. the United Kingdom (Eur.   Court H.R., judgment of 28 May 1985, Series A No. 94), and the relevant domestic case-law on the effects of the Convention, that "the extent to which the Convention is relevant or may be used is to assist in interpreting our statute law if there is ambiguity or doubt.   What it certainly cannot do is override or replace or provide a test under our legislation where our legislation is perfectly clear".   He found no allegation in the applicant's case that Section 3 of the Immigration Act 1971 was ambiguous.   Moreover, he also found no evidence that the Immigration Appeal Tribunal, despite their silence on the point, did not anyway take into account the applicant's submissions under Article 8 (Art. 8) of the Convention as "representations received on the person's behalf" pursuant to paragraph 156 of the Statement in Changes in Immigration Rules HC 169.           Mr.   Justice Taylor concluded his judgment as follows:           "Finally, I would say that on the factual background to this         case, if one looks at the decision of the tribunal and its         review of the evidence, there are certainly grounds upon         which it would be perfectly reasonable to uphold the         decision of the Secretary of State.   This was a case not of         some minor drug offence, being in possession of a small         amount of drugs or even being in possession of it with intent         to supply.   This was a serious case of the importation of a         large quantity of cannabis.   Clearly the object must have been         commercial.   There is an interest of the highest importance in         demonstrating not merely to the person concerned but more         importantly to others who might be minded to act as couriers         that an offence of that character may carry a very severe         penalty indeed.   In this case it carried a penalty of 30         months' imprisonment, but it was considered by the Secretary         of State that it was also one which justified deportation.         Even if one looks at the criteria of the Article (Article 8 of         the Convention) (Art. 8) itself, one can well see that the facts here         could justify applying the exception that this was a         deportation necessary for the prevention of crime and for         the protection of health.   Certainly I would not be         prepared to hold that a decision to that effect was one         which no reasonable Secretary of State, or as the decision         which is challenged here makes more relevant, one which no         reasonable tribunal could have reached.           For all those reasons this application must be dismissed."           An appeal against this latter decision to the Court of Appeal was dismissed on 30 October 1987 for broadly similar reasons, adding that the applicant could derive no legitimate expectation that in his kind of case the Secretary of State or the Immigration Appeal Tribunal would have regard to Article 8 (Art. 8) of the Convention.   One of the three Court of Appeal Judges, Glidewell LJ, also expressed the view that "it cannot be implied from Section 5 of the Immigration Act 1971 or the relevant paragraphs of the Immigration Rules that the Convention is intended to be or is in any way a relevant consideration for the Secretary of State or the Immigration Appeal Tribunal in the circumstances of the applicant's case.   As the relevant law displayed no ambiguities the Immigration Appeal Tribunal was justified, and indeed obliged, not to refer to the wording of the Convention.           On 11 February 1988 further leave to appeal to the House of Lords was refused by the House of Lords Appeal Committee.     COMPLAINTS           The applicant complains that his proposed deportation from the United Kingdom to Tanzania is in breach of Articles 8 and 13 (Art. 8, Art. 13) of the Convention.           The applicant contends that if he is deported he "will be permanently separated from his mother and father.   The only country to which he could realistically go would be Tanzania, but out of his immediate family circle only he is a Tanzanian national.   There is no legal obligation on Tanzania to admit either his father (a British Protected Person) or his mother (an Indian national).   Further the family left in circumstances of some persecution and it is not realistic to expect a return by the mother and the father.   The father is in poor health and dependent upon the applicant as a bread-winner; if the applicant is removed both parents face old age without a major part of the family support they have had to date in the United Kingdom.   The applicant's wife would be placed in an intolerable position.   She has no contact at all with Tanzania.   The applicant does not know whether she will be admitted to Tanzania.   The applicant's daughter is a British citizen and is now aged 7.   The life of the present, close, extended family will be destroyed if the applicant is to be removed."           As regards Article 8 (Art.8) of the Convention the applicant contends that his family life will be severed as his family cannot follow him to Tanzania.   His deportation is disproportionate in the circumstances.   He has led a sober and industrious life with the exception of the drug offence.   He supports his whole family. Tanzania is a strange culture to him and a place where he has no friends or relatives.   His removal would constitute a further punishment of banishment and is not necessary for the prevention of crime in the sense of preventing further offences as there is no evidence that he will ever offend again or that his removal will have a deterrent effect on potential offenders.   He points out that the criminal court did not recommend his deportation and that the offence involved cannabis, not a life threatening drug like heroin.           The applicant also claims that Article 13 (Art. 13), both read alone and together with Article 8 (Art. 8), is breached in his case because the English legal system fails to provide an adequate remedy for the alleged breach of Article 8 (Art. 8) of the Convention.   The applicant submits that the domestic court decisions in this case, in particular the opinion of Glidewell LJ in the Court of Appeal (p. 5 above), reveal that the immigration authorities are not entitled to take the Convention into account.   They cannot, therefore, provide an adequate remedy.           The applicant draws the following conclusions from the domestic court judgments in his case:           (i)     the Home Secretary is not entitled to consider whether removal of an immigrant can be said to be necessary in a democratic society for the prevention of crime.   The Convention case-law elucidating the concept is simply irrelevant to his considerations;           (ii)     it follows that the Home Secretary will never form his own view as to those measures which can properly be said to be a proportionate response to a pressing social need;           (iii)    the Convention cannot have any role at all in changing the mind of an administrator, because he is not allowed to look at it;           (iv)     there is no mechanism for giving effect to a decision of the Strasbourg Court without primary legislation; if the Secretary of State cannot have regard to the Convention, he equally cannot have regard to a judgment of the Court, which has no force other than that conferred by the Convention itself.           The applicant contends that inherent in the concept of an adequate remedy under Article 13 (Art. 13) is the ability to draw to the attention of the relevant domestic authority the possibility that a given administrative action might create a breach of the Convention and should be avoided or reversed for that reason.   The ability to do so was denied the applicant and in the present state of English law cannot be granted to anyone complaining of the manner of exercise of a statutory discretion, whether in immigration or any other field.           It is further submitted that the operation of United Kingdom domestic law, as it must take place following the Court of Appeal decision herein, is inimical to the proper functioning of the Convention.   The essence of the concept of a "margin of appreciation" is that domestic authorities themselves consider the matters in the light of Convention obligations, and provide, if necessary, material by which the Commission and the Court can judge whether or not the relevant exercise of administrative discretion falls within the margin of appreciation.   If the domestic authorities cannot look at the Convention, this exercise cannot be undertaken.   THE LAW   1.       The applicant has complained that his proposed deportation from the United Kingdom to Tanzania is in 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 parents, wife and children have indefinite leave to reside in the United Kingdom (his eldest child is a British citizen).   However, the applicant has been convicted of a serious drugs' offence which, according to the British Immigration authorities, render his deportation "conducive to the public good", within the meaning of Section 3(5)(b) of the Immigration Act 1971.   These authorities have carefully considered the applicant's family circumstances and the fact that the applicant and his wife do not have particularly strong ties with the United Kingdom.   The Commission also notes that the applicant has not shown that his wife and children would not be entitled to join him in Tanzania or that his parents could   not manage financially without him in the United Kingdom if they decided not to follow him back to Tanzania.   The applicant's mother is employed and has an income.   She also owns half of the family business.   The Commission does not find that the deportation decision necessarily involves the break up of the whole family or that the establishment of a new home would pose insuperable difficulties for the young couple.           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, in particular the serious drug offence. 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, (and) for the protection of health", within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.           It follows that this aspect of the applicant's case is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant has also complained that he had no effective domestic remedy at his disposal for his Article 8 (Art. 8) complaint.   He claims thereby to be a victim of a breach of Article 13 (Art. 13) of the Convention which provides as follows:           "Everyone whose rights and freedoms as set forth in         this Convention are violated shall have an effective         remedy before a national authority notwithstanding that         the violation has been committed by persons acting in an         official capacity."           The Commission refers to the constant case-law of the Convention organs that "neither Article 13 (Art. 13) nor the Convention in general lays down for the Contracting States any given manner for ensuring within their internal law the effective implementation of any of the provisions of the Convention" (Eur.   Court H.R., Swedish Engine Drivers' Union judgment of 6 February 1976, Series A No. 20 para. 50). Thus the Contracting Parties do not have to incorporate the Convention into the domestic law, but, if they do not, they must give effect to its substance and provide domestic remedies to enforce effectively the equivalent rights and freedoms in domestic law (Eur.   Court H.R., Lithgow and Others judgment of 8 July 1986, Series A No. 102 para. 205).           The Commission notes that the Convention is not part of British domestic law.   However, it does not accept the applicant's contention that he had no effective domestic remedies before the British immigration authorities and courts just because they were not obliged by domestic law to take the provisions of Article 8 (Art. 8) of the Convention directly into account when examining his case.   The Commission finds that, in the present case, the examination by the domestic authorities of whether the applicant's criminal conviction rendered his deportation "conducive to the public good", pursuant to Section 3(5)(b) of the Immigration Act 1971, account being taken of all relevant circumstances, including the compassionate circumstances arising from his family situation, in substance was a similar exercise to the examination of whether his deportation was "necessary in a democratic society ... for the prevention of disorder or crime, (and) for the protection of health", within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   In the light of these considerations, the Commission concludes that the applicant had an effective remedy for the purposes of Article 13 (Art. 13) of the Convention in his appeal against deportation before the independent Immigration Appeal Tribunal, and in the judicial review of the Tribunal's decision by the High Court and the Court of Appeal.           It follows that this aspect of the applicant's case is also manifestly ill-founded within the meaning of 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)