CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 janvier 1989

.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. 14476/88 by Shaukat ALI against the United Kingdom             The European Commission of Human Rights sitting in private on 20 January 1989, the following members being present:                   MM.   C.A. NØRGAARD, President                      G. SPERDUTI                      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 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 30 November 1988 by Shaukat ALI against the United Kingdom and registered on 1 December 1988 under file No. 14476/88;           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 Pakistan, born in 1961 and detained in H.M. Prison Winson Green, Birmingham.   He is represented before the Commission by Mr.   S. Akhtar of the Handsworth Law Centre, Birmingham.           The facts of the case, as submitted by the applicant, and which may be deduced from official documents included in the application, may be summarised as follows:           On 10 July 1982 the applicant was admitted to the United Kingdom to marry his fiancée, settled in that country.   They married on 7 September 1982 and the applicant's wife applied for him to be granted indefinite leave to remain.   This was refused as he had not completed the normal probationary 12 months period allowed to foreign husbands, but his stay was extended until 29 November 1983.   According to Home Office records, during 1983 the Home Office received several reports from the applicant's wife of the applicant's alleged ill-treatment of her and his intermittent abandonment of the matrimonial home to live with his father.   A son was born to the couple on 26 July 1983 and, on 9 April 1984, the wife wrote, through the local police, that although the marital problems continued she would request a further extension of the applicant's stay in order to attempt reconciliation.   When the couple were interviewed on 3 July 1984, the Home Office found that the couple did not cohabit and that the applicant was apparently physically abusing his wife.   (This is denied by the applicant.)   The wife's application was, therefore, refused.   However, the couple subsequently reconciled and, after another Home Office interview in June 1985, the applicant was given a further 12 months leave to remain until 23 August 1986.   A daughter had been born to the couple on 9 March 1985.           The applicant states that due to an oversight he failed to apply for extension of his stay during that period of leave.   On 4 September 1986 he made an application for leave to remain out of time. This was refused on 24 September 1987 without a right of appeal, and on the same day he was convicted of an offence of criminal damage.   He was fined £100 and ordered to pay £119 in compensation and costs.           In October 1987 further criminal proceedings were instituted against the applicant for overstaying his leave, contrary to section 24 of the Immigration Act 1971.   He was convicted by a Magistrates Court of this offence on 26 November 1987, fined £50 and recommended for deportation.   The applicant states that unfortunately he did not appeal against this recommendation to the Birmingham Crown Court who would probably have quashed this part of the sentence.           On the basis of the court's recommendation, the Home Secretary issued a deportation order against the applicant on 7 October 1988, when he was arrested and detained with a view to removal from the United Kingdom.   The Home Secretary was satisfied, after his officers had interviewed the applicant and his wife in April 1988, that the applicant had remained in the United Kingdom since August 1986 without leave and that his marriage had irretrievably broken down.           The applicant acknowledges that he and his wife have had matrimonial difficulties and have separated intermittently.   However he has kept in constant touch with his children.   Prior to his imprisonment he visited them regularly without his wife's disapproval. Because reconciliation was possible with his wife he did not apply for the children's custody.   He wants to continue seeing the children. His entire family is settled in the United Kingdom except for one brother who will shortly emigrate there.   He has had a successful food business since April 1988.   The applicant wishes to continue life in the United Kingdom and to be reconciled with his wife.   His wife, although judicially separated from him, is not seeking a divorce.           An application for judicial review was refused on 11 October 1988, the High Court deeming the deportation order to be reasonable in the circumstances.     COMPLAINTS   1.       The applicant complains that the refusal of British immigration authorities to allow him to remain in the United Kingdom and the deportation order against him are in breach of his right to respect for family life ensured by Article 8 of the Convention.   If he is deported he will not be able to keep in regular contact with his children and there will be no possibility of a reconciliation with his wife (cf.   Eur.   Court H.R., Berrehab judgment of 21 June 1988). Furthermore he will be separated from his parents and siblings who have settled in the United Kingdom.           The applicant also complains that his detention pending deportation is unjustified and offends Article 3 of the Convention. He has been refused bail.           The applicant submits that the recommendation of the Magistrates Court that he be deported was a disproportionate sentence to his overstaying and left him without a right of appeal against the Secretary of State's deportation order, contrary to Article 6 of the Convention.     THE LAW   1.       The applicant has complained that the refusal of the British immigration authorities to allow him to remain in the United Kingdom and the deportation order against him are in breach of his right to respect for family life ensured by Article 8 (Art. 8) of the Convention.   He also complains that his ensuing detention constitutes inhuman and degrading treatment, contrary to Article 3 (Art. 3) of the Convention, and that the absence of a right of appeal against the deportation order precludes any possibility of a fair hearing in the determination of his civil rights, contrary to Article 6 para. 1 (Art. 6-1) of the Convention.   2.       However, as regards the applicant's complaint under Article 8 (Art. 8) of the Convention, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, 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 the Crown Court against the Magistrates Court's recommendation to deport him, a remedy which he himself considers would have had good prospects of success.   As a result of this omission the Secretary of State acted on the court's recommendation, leaving the applicant with no further independent remedies.   The applicant did not, therefore, exhaust the remedies available to him under English law.   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 pursuing this course.   It follows that this aspect of the case must be rejected pursuant to Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.   3.       Insofar as the applicant has complained that the decision to detain him pending deportation amounts to inhuman and degrading treatment, contrary to Article 3 (Art. 3) of the Convention, the Commission finds that there is no evidence in the case file to suggest that this decision amounts to the serious ill-treatment proscribed by Article 3 (Art. 3) of the Convention.   It follows that this aspect of the case must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       Finally, insofar as the applicant contends that he has been denied a fair hearing in the determination of his civil rights, the Commission recalls its constant case-law that the guarantees of Article 6 para. 1 (Art. 6-1) of the Convention do not apply to such immigration matters, in particular questions concerning an alien's deportation or leave to remain (cf.   No. 8244/78, Singh, Uppal et al. v. the United Kingdom, Dec. 2.5.79, D.R. 17 p. 149; No. 9285/81, Dec. 6.7.82, D.R. 29 p. 211).   It follows that this aspect of the case must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to 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)