CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 février 1992

.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. 16152/90 by Ahmed LAMGUINDAZ against the United Kingdom     The European Commission of Human Rights sitting in private on 17 February 1992, the following members being present:   MM.C. A. NØRGAARD, President S. TRECHSEL F. ERMACORA E. BUSUTTIL G. JÖRUNDSSON A. S. GÖZÜBÜYÜK A. WEITZEL J. C. SOYER H. G. SCHERMERS H. DANELIUS Mrs.G. H. THUNE SirBasil HALL Mr.F. MARTINEZ Mrs.J. LIDDY MM.A.V. ALMEIDA RIBEIRO M.P. PELLONPÄÄ         Mr. J. RAYMOND, Deputy 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 6 February 1990 by Ahmed LAMGUINDAZ against the United Kingdom and registered on 12 February 1990 under file No. 16152/90;   Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;   Having regard to the written observations submitted by the Government on 30 May 1990 and the observations in reply submitted by the applicant on 15 September 1990;   Having regard to the observations of the parties at the oral hearing on 17 February 1992;   Having deliberated;   Decides as follows: THE FACTS   The applicant is a Moroccan citizen born in 1967.   He is represented before the Commission by Mr. R. Poynter, solicitor of Messrs. Sinclair, Taylor, and Martin, London.   The facts of the case may be summarised as follows.   The applicant probably arrived in the United Kingdom in or about 1974 to join his father. His mother and three brothers and sisters also moved to the United Kingdom. Two further children were born. The applicant's parents were granted indefinite leave to remain in the United Kingdom in 1974. The applicant was not brought up speaking Arabic at home, had difficulties understanding that language and could not read or write it.   The applicant spent a period of up to six months in Morocco in 1981 on holiday with his family.   The applicant has a lengthy criminal record, reaching back to 1981 and comprising largely minor offences of dishonesty, but also certain offences involving violence.   On 17 May 1985 the applicant was convicted of wounding.   On 19 February 1986, referring to the conviction for wounding, the Secretary of State decided to make a deportation order against the applicant on the ground that such an order was "conducive to the public good".   The applicant appealed against the decision to make a deportation order to the Immigration Appeal Tribunal, on the ground that all his family lived in the United Kingdom, and that he had no relatives in Morocco. Moreover, he spoke no Arabic, would not be able to live in Morocco and could not find any employment.   In its decision of 9 June 1986 (notified on 28 July 1986) the Tribunal accepted that the applicant had difficulty in making himself understood in Arabic, and realised that he would not have an easy task in making his way in Morocco.   It also noted that the applicant had expressed regret at his part in the offence, and that he was prepared to change his life style. However, the Tribunal recalled that the applicant had failed to take any notice of a Home Office warning in 1983 that he could be deported if he continued his criminal activities, and doubted whether he would, in fact, refrain from his criminal course.   It found, when balancing the public interest against the compassionate circumstances of the case, that deportation was the right course on the merits.   The appeal was dismissed.   A deportation order was signed on 22 October 1986.   The applicant's application for leave to apply for judicial review of the Immigration Appeal Tribunal's decision was dismissed.   In July 1987, prior to notification of the deportation order, the applicant was arrested in connection with the supply of drugs.   While on bail in this connection, the applicant was taken by his father to Morocco in February 1988.   The applicant's father took the applicant's passport and abandoned him there in an attempt to keep the applicant out of trouble with the police.   The applicant's sister eventually found him living in Morocco in squalid circumstances and she took him back to England in September 1989.   The applicant was arrested in November 1989 following his voluntary surrender to the police and held in custody until 7 February 1990, when he was convicted of the charge of supplying cannabis in respect of which he had been arrested in July 1987.   He was sentenced to three months' imprisonment suspended for 2 years.   He was immediately re-arrested at the Court and detained at Chelsea Police Station pending the arrival of the immigration officers to execute the deportation order.   The deportation order was served on 8 February 1990 and the applicant was deported on 12 May 1990 to Tangier.   He has since remained in Morocco and has received financial support from his mother.     COMPLAINTS   The applicant alleges violations of Articles 8 and 14 of the Convention.   The applicant submits that his removal severs a close family life, and contests that this severance can be justified as a proportionate response necessary in the interests of the prevention of crime.   He submits that the penalty of removal would not be available in the case of a petty or small time criminal who was a British subject, and it cannot therefore be said to be necessary. He underlines that there is no question of an undesirable alien being removed from a host country, that the case involves an immigrant who has been brought up and educated entirely in the United Kingdom, who is now to be removed from his home country to a place where he has no family and away from the only place where he does have family.   The applicant submits that, in other words, the penalty imposed is banishment.   The applicant considers that, as his whole family is now based in the United Kingdom and he himself was brought up there, the fact that he is Moroccan presents an arbitrary and fortuitous chance to remove him which cannot be objectively justified, and which amounts to discrimination on the ground of nationality.     PROCEEDINGS BEFORE THE COMMISSION   The application was introduced on 6 February 1990 and registered on 12 February 1990.   On 15 February 1990 the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the application.   The Government's observations were submitted on 30 May 1990 and the applicant's observations in reply were submitted on 15 September 1990 after one extension in the time-limit.   On 7 September 1990 the Commission decided to grant legal aid to the applicant.   On 5 September 1991 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.   The hearing was held on 17 February 1992, when the parties were represented as follows:   -    for the applicant:   Mr. Richard DRABBLE, Counsel Mr. Richard POYNTER, Solicitor   The applicant, Mr. Ahmed LAMGUINDAZ, attended the hearing, with Mrs. K. Lamguindaz and Mr. Rachid Lamguindaz   -    for the respondent Government:   Mrs. Audrey GLOVER, Agent Mr. David PANNICK, Counsel Ms. S. WESTON, Adviser, Home Office Mrs. G. GRIFFITH, Adviser, Home Office.     THE LAW   The applicant complains that the deportation constitutes an interference with his right to respect for his family and private life contrary to Article 8 (Art. 8) of the Convention and that it also discloses discrimination on the ground of nationality contrary to Article 14 (Art. 14) of the Convention.   Article 8 (Art. 8) of the Convention provides:   "1.Everyone has the right to respect for his private and family life, his home and his correspondence.   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."   Article 14 (Art. 14) of the Convention provides:   "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."   The applicant submits that the deportation order is a penalty which is a disproportionately harsh response to his criminal record, in respect of which he points out that his family is entirely based in the United Kingdom where he was brought up and that he had difficulties in understanding and communicating in Arabic. He submits that the measure was not justified by a "pressing social need", and that the penalties of the criminal courts were available in the event of his re- offending.     The Government argue that the deportation did not substantially interfere with the applicant's private or family life, in particular, in view of the applicant's previous lengthy stay in Morocco from 1988 to 1989. They submit that the deportation pursued the legitimate aim of the prevention of crime and was not disproportionate, having regard to the State's margin of appreciation, the applicant being a habitual offender and the offences concerning wounding and drugs being particularly serious.   Having regard to the observations of the parties and to the Court's decision in Moustaquim (Eur. Court H.R., Moustaquim judgment of 18 February 1991, Series A no. 193) the Commission considers that the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. The application cannot therefore be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and no other grounds for declaring the application inadmissible have been established.   For these reasons, the Commission, by a majority,   DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits.     Deputy Secretary to the Commission       President of the Commission                  (J. RAYMOND)                        (C.A. NØRGAARD)