CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1991

.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. 16009/90 by Aziz PATEL against the United Kingdom             The European Commission of Human Rights sitting in private on 6 September 1991, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      F. ERMACORA                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                 MM.   L. LOUCAIDES                      A.V. ALMEIDA RIBEIRO                      M.P. PELLONPÄÄ                      B. MARXER                   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 9 November 1989 by Aziz PATEL against the United Kingdom and registered on 18 January 1990 under file No. 16009/90;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a citizen of India, born in 1961 and detained in H.M. Prison Ashwell, Oakham, Leicestershire.   He is represented before the Commission by Peter Ashman, barrister and legal officer of JUSTICE, the British section of the International Commission of Jurists.           The facts of the present case, as submitted by the applicant and which may be deduced from documents submitted with the application, may be summarised as follows:           The applicant was born in India.   His father died there in 1968.   His brother, Ahmed Patel, went to settle in England.   In 1973, the applicant, his mother, Mrs.   Fatima Patel, and his second brother, Sulamen Patel, went to settle in the United Kingdom.   The applicant first arrived in England on 13 July 1973, aged 12 years.   He was granted indefinite leave to enter as the dependent of his brother, Ahmed Patel.   The applicant has been settled and ordinarily resident in the United Kingdom since that date.           On 14 February 1985, the applicant was arrested at Heathrow Airport, London.   On 9 April 1986, he was convicted, on the basis of a jury's majority verdict of 10 - 2, by a Crown Court of "being knowingly concerned in the fraudulent evasion of the prohibition in force (under section 3(1) Misuse of Drugs Act 1971) on the importation of a class A controlled drug (diamorphine)", contrary to section 170(2)(b) of the Customs and Excise Management Act 1979.   The applicant was convicted with three co-defendants (not related to him): Ahmed Moosa Patel, Umarji Vali Patel and Imtiaz Vali.   He was sentenced to 10 years' imprisonment, as were the other defendants. His application for leave to appeal against conviction and sentence was dismissed by the Court of Appeal on 12 May 1987.   The applicant has no previous convictions.           On 27 August 1988, the Home Secretary made a deportation order against the applicant under section 3(5)(b) of the Immigration Act 1971, and gave directions for his removal to India.   Under this section a person who is not a British citizen is liable to deportation from the United Kingdom "if the Secretary of State deems his deportation to be conducive to the public good."   The applicant appealed against this order to the Immigration Appeal Tribunal, which dismissed his appeal on 17 May 1989.           The Tribunal considered the applicant's case in the light of paragraphs 159 and 156 of the Statement of Changes in Immigration Rules HC 169 of 1983, which provide as follows:           "159.   The Secretary of State has the power to deport a person         if he deems it conducive to the public good.   General rules         about the circumstances in which deportation is justified on         these grounds cannot be laid down, and each case will be         considered carefully in the light of the relevant         circumstances known to the Secretary of State including         those listed in paragraph 156.         156.   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 on the person's behalf.           In certain circumstances, particularly in the case of young         or first offenders, supervised departure, with a prohibition         on re-entry, may be arranged as an alternative to the         deportation recommended by the court provided that the         person is willing to leave the country."           The Tribunal held as follows:           "The appellant was born in 1961.   He has settled in this         country since 1973.   He is a member of a closely knit         family.   His mother and two brothers and their families         are also settled here.   His mother, who is blind, regards         the appellant as her favourite child.   Her feelings are         reciprocated by the appellant.           The appellant's fiancée, Abeda, will marry the appellant         as soon as her (present marriage is ended and a) decree         absolute is obtained.   She and her 4 year old child are         deeply attached to the appellant and here again, their         feelings are reciprocated.   It would cause deep distress         on all sides if the appellant were to be deported.           The appellant has a number of skills which include the         cutting of leather and sheepskin, market trading and car         spraying.   We have no doubt that he would easily find         employment in this country and that his fiancée, Ms Patel,         would accommodate him.           The appellant has been convicted of a most serious drugs         offence.   We note that he was not recommended for         deportation by a Court.   Ms Patel assured us that the         appellant would not commit any criminal offence in the         future.   Having observed the appellant in the witness         stand, we wish that we could have made an equally         confident prediction.           We have assumed that the appellant's family in Bombay would         have nothing to do with him because of the stigma of a drugs         conviction.   We accept that in these circumstances, the         appellant would not have an easy task to establish himself         in India, particularly bearing in mind that he would have a         partial language handicap.   Nevertheless, the appellant is         in the prime of his life and we feel sure that he would use         one of his many skills to make his way.           We have read the Probation Officer's report and note its         favourable view of the appellant.           In our judgment, when the public interest is balanced against         the compassionate circumstances of the case, deportation is         the right course on the merits.           The appeal is dismissed."           The Secretary of State was asked to reconsider his decision by the applicant's present lawyer on 21 June 1989, but this was rejected by letter from the Home Office dated 3 October 1989.   Under the order, the applicant will be deported to India at the end of his sentence.           The applicant stresses that he lives within a close family environment and has done so since arriving in the United Kingdom.   His brother, Ahmed Patel, and his fiancée, Ameda Patel, have British nationality.   His mother, second brother and fiancée are settled in the United Kingdom.   His mother, who is blind and in ill-health, lived with the applicant at the time of his arrest.   He enjoyed a stable and established family relationship with Ameda Patel who will marry him when her divorce is finalised, and with her four year old son, whom he treats as his own.   He had known his fiancée since childhood.   She had been forced into an arranged marriage in 1983 which ended in separation after only 6 months.   Thereafter she lived with the applicant.   The three members of his immediate family are greatly attached to the applicant, as was made clear at the hearing before the Immigration Appeal Tribunal.   Since that hearing, the applicant's fiancée has had a nervous breakdown.   It was intended that the applicant would live with his fiancée, her son and his mother at his fiancée's house in Leicester when he finished his sentence.   At present, they live with the applicant's brother's wife.           The applicant has made two applications for British nationality, through the Community Services in 1981 and again from prison in 1987.   In 1981 he did not proceed further only because of the expense involved, which he was told was £250, a sum which he did not then possess.   In his 1987 application he was told that the cost was £60, but his application was rejected.   As the applicant has been settled and ordinarily resident in the United Kingdom since 13 July 1973, he has been eligible to apply for naturalisation under section 6(1) and schedule 1 of the British Nationality Act 1981 since that Act was passed.   However, with a conviction for a serious offence he now fails to fulfil one of the conditions - "being of good character". Had he arrived in the United Kingdom only 8 months earlier, the applicant would be exempt from deportation under section 3(5)(b) by virtue of section 7(1) of the Immigration Act.           The only family of the applicant in India is a sister and her family who live in Bombay.   He last saw her in 1984, and he would not be well received there.   The applicant speaks Gujerati, one of the local languages, but cannot read or write it.   He cannot speak, read or write Murati, the other language used in Bombay.           The applicant's co-defendants were all convicted by unanimous verdicts and received the same 10 year sentence as himself.   Ahmed Moosa Patel has British nationality.   However, Umarji Vali Patel and Imtiaz Vali both have Indian nationality and, so far as the applicant is aware, neither has been made the subject of a deportation order. The applicant's elder brother was sentenced to 11 years' imprisonment for importation of a prohibited drug in late 1988.   He cannot be deported as he holds British nationality.     COMPLAINTS   1.       Article 8           The applicant contends that his established family life with his fiancée, Ameda Patel, her young son and his dependent mother, constitutes "family life" within the meaning of Article 8.   All parties are settled and ordinarily resident in the United Kingdom. There are immense practical obstacles to the relocation of the applicant's family to India, with its consequent uprooting, particularly for a small child and a blind, sick elderly woman.   The applicant contends that his deportation to India constitutes an interference with his right to respect for his private and family life and will have severe implications for the whole family.   Although the interference is in accordance with the law, it does not fall within any of the other exceptions permitted under Article 8 para. 2.   The seriousness of the interference is not proportionate to the aim pursued and consequently there is no objective and reasonable justification for the order.   In particular, it should be noted that the sentencing court did not recommend deportation, as it could have done under section 6 of the Immigration Act 1971.   The applicant points out that he was convicted on a majority verdict, continues to maintain his innocence, has no previous convictions and is presently a category D prisoner, the lowest security rating.   2.       Article 14           The applicant submits that the Home Secretary's decision amounts to an additional and drastic punitive action, only possible because of the applicant's financial inability to afford naturalisation in 1981.   The order to deport amounts to a discriminatory difference in treatment between the applicant and his co-defendants.   It also amounts to a discriminatory difference in treatment between the applicant and his brother, who is imprisoned for a similar offence, but who cannot be deported because he possesses British nationality.   It is submitted that the order to deport the applicant violates Article 14 in conjunction with Article 8 as his private and family life has been interfered with in a manner not possible or undertaken in the cases of his co-defendants or his brother, and that there is no objective and reasonable justification for the order.     THE LAW   1.       The applicant has complained that the decision to deport him violates his rights under Article 8 (Art. 8) of the Convention, the relevant part of which reads 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 ... 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."           The Commission finds that the decision to deport the applicant constitutes an interference with his right to respect for family life, within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention. The key issue in the case is whether that interference is justified for one or more of the reasons recognised in the second paragraph of Article 8 (Art. 8).           The Commission observes that the applicant has been convicted and sentenced for the very serious offence of heroin smuggling.   He was thus involved in an act which would have led to the destruction of the health and perhaps lives of many other people.   He and his family were unable to convince the Immigration Appeal Tribunal that he would not commit such an offence again.   Whilst the Convention organs have on occasions found that the deportation of a non-national delinquent from a country where his close family reside has constituted a breach of Article 8 (Art. 8) of the Convention, deportation for drug offences of the nature and scale of the present case may be justified even where there are strong family considerations (cf.   Eur.   Court H.R., Moustaquim judgment of 18 February 1991, Series A No. 193).   The Commission finds, therefore, that the family circumstances in the present case do not outweigh the State's legitimate interests in preserving public health and order.   It concludes that the interference with the applicant's right to respect for family life is justified as being necessary in a democratic society for the prevention of crime and for the protection of health and the rights and freedoms of others within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   Accordingly this aspect of the case must be rejected as being manifestly ill-founded, pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant has also complained that the deportation decision constitutes discrimination contrary to Article 14 (Art. 14) of the Convention, read in conjunction with Article 8 (Art. 8).           Article 14 (Art. 14) of the Convention provides as follows:           "The enjoyment of the rights and freedoms set forth in         this Convention shall be secured without discrimination         on any ground such as sex, race, colour, language,         religion, political or other opinion, national or social         origin, association with a national minority, property,         birth or other status."           However, the Commission notes that there is no evidence in the case-file to substantiate the applicant's claim that the non-British co-accused in his case do not, or will not, also face deportation in family circumstances comparable to his.   The Commission concludes, therefore, that this aspect of the 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, by a majority,           DECLARES THE APPLICATION INADMISSIBLE.           Secretary to the Commission          President of the Commission                  (H.C. KRÜGER)                       (C.A. NØRGAARD)