CEDH · CASELAW;REPORTS;ENG — 13 octobre 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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 16152/90                              Ahmed LAMGUINDAZ                                   against                             the UNITED KINGDOM                          REPORT OF THE COMMISSION                        (adopted on 13 October 1992)                              TABLE OF CONTENTS                                                                    page   I.     INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . 1-2       (paras. 1-18)         A.   The application (paras. 2-4). . . . . . . . . . . . . . . 1         B.   The proceedings (paras. 5-13) . . . . . . . . . . . . . . 1         C.   The present Report (paras. 14-18) . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS. . . . . . . . . . . . . . . . . 3-5       (paras. 19-31)         A.   Particular circumstances of the case. . . . . . . . . . 3-4           (paras. 19-28)         B.   Relevant domestic law and practice. . . . . . . . . . . 4-5           (paras. 29-31)   III.   OPINION OF THE COMMISSION . . . . . . . . . . . . . . . . . 6-9       (paras. 32-53)         A.   Complaints declared admissible. . . . . . . . . . . . . . 6           (para. 32)         B.   Points at issue (para. 33). . . . . . . . . . . . . . . . 6         C.   Article 8 of the Convention . . . . . . . . . . . . . . 6-8           (paras. 34-49)         D.   Article 14 in conjunction with   . . . . . . . . . . . . . 9           Article 8 of the Convention           (paras. 50-51)         E.   Recapitulation (paras. 52-53) . . . . . . . . . . . . . . 9   Partly concurring partly dissenting opinion . . . . . . . . . . 10-11 of Mr. H.G. Schermers   APPENDIX I        History of the proceedings . . . . . . . . . . . .12   APPENDIX II       Decision on the admissibility. . . . . . . . . 13-17                  of the application   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is Ahmed Lamguindaz, a Moroccan citizen born in 1967 and resident in Morocco.   He is represented by Mr. Richard Poynter, a solicitor of Messrs. Sinclair, Taylor and Martin, London.   3.     The application is directed against the United Kingdom.   The respondent Government are represented by their Agent, Mrs. Audrey Glover of the Foreign and Commonwealth Office.   4.     The case concerns the applicant's complaint that he was deported from the United Kingdom.   It raises issues under Articles 8 and 14 of the Convention.   B.     The proceedings   5.     The application was introduced on 6 February 1990 and registered on 12 February 1990.   6.     On 15 February 1990, the Commission decided to give notice of the application to the respondent Government and invite them to submit observations on the admissibility and merits.   7.     The Government submitted their written observations on 30 May 1990.   The applicant submitted his written observations in reply on 15 September 1990.   8.     On 7 September 1990, the Commission granted legal aid to the applicant.   9.     On 5 September 1991, the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.   10.    At the hearing, which was held on 17 February 1992, the applicant was represented by Mr. Richard Drabble, Counsel, and by Mr. Richard Poynter, Solicitor. The Government were represented by Mrs. Audrey Glover as Agent, Mr. David Pannick, Counsel, and Ms. S. Weston and Mrs. G. Griffith, Advisers.   11.    On 17 February 1992, the Commission declared the application admissible.   12.    The parties were then invited to submit any additional observations on the merits of the application.   13.    After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   14.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C.A. NORGAAARD, President of the Commission                  S. TRECHSEL                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            Sir    Basil HALL            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            Mr.    M.P. PELLONPÄÄ   15.    The text of the Report was adopted by the Commission on 13 October 1992 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   16.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   17.    A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decision on the admissibility of the application as APPENDIX II.   18.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   19.    The applicant was born in Morocco in 1967. He arrived in the United Kingdom in or about 1974 to join his father who had settled there.   His mother and three brothers and sisters also moved to the United Kingdom. Two further children were born to the family. 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.   20.    The applicant spent a period of up to six months in Morocco in 1981 on holiday with his family.   21.    The applicant has a lengthy criminal record, reaching back to 1981 and comprising largely minor offences of dishonesty, but also certain offences involving violence. The offences for which he was convicted were:         -1981: burglary of property valued at £ 70 (2 year supervision       order), handling £ 100 of stolen money (2 year supervision order)       and theft of a pedal cycle (£ 20 fine);       -1982: theft of a pedal cycle (conditional discharge), burglary       (3 months at a detention centre), burglary (a further 3 months       at a detention centre) and grievous bodily harm and actual bodily       harm (conditional discharge);       -1983: going equipped for burglary (care order), occasioning       actual bodily harm (borstal training), assault on the police       (conditional discharge and a fine) and burglary (conditional       discharge and £ 200 compensation order);       -1984: evading a rail fare (£ 10 fine) and carrying an offensive       weapon (community service order);       -1985: theft, actual bodily harm and offering to supply heroin       ( 2 year probation order) and burglary (further 2 year probation       order).   22.    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".   23.    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.   24.    A deportation order was signed on 22 October 1986.   25.    The applicant's application for leave to apply for judicial review of the Immigration Appeal Tribunal's decision was dismissed.   26.    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.   27.    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.   28.    He has since remained in Morocco and has received financial support from his mother.   B.     Relevant domestic law and practice   29.    By section 3(5)(b) of the Immigration Act 1971:         "A person who is not a British citizen shall be liable to       deportation from the United Kingdom if the Secretary of State       deems his deportation to be conducive to the public good."   30.    Paragraphs 156 and 159 of the Immigration Rules which were applicable in 1986 explain the considerations the Secretary of State will have in mind when deciding whether to deport a person who is liable to deportation.   They provide as follows:         "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."       "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."   31.    By virtue of section 15 (1)(a) of the 1971 Act, a person may appeal to an adjudicator (and from him or her to the Immigration Appeal Tribunal) against a decision of the Secretary of State to make a deportation order against him by virtue of section 3(5).   A decision by virtue of section 3 (5)(b) is subject to a full, substantive right of appeal.   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   32.    The Commission declared admissible the applicant's complaint that his deportation to Morocco from the United Kingdom was in breach of Articles 8 and 14 (Art. 8, 14) of the Convention.   B.     Points at issue   33.    The following are the points at issue in the present case:   - whether the applicant's deportation from the United Kingdom to   Morocco constitutes a violation of his right to respect for his   private and family life within the meaning of Article 8 (Art. 8) of   the Convention, and   - whether the applicant has been discriminated against on the ground   of nationality contrary to Article 14 of the Convention in   conjunction with Article 8 (Art. 14+8) of the Convention.   C.     As regards Article 8 (Art. 8) of the Convention   34.    Article 8 (Art. 8) of the Convention provides as follows:         "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."   35.    The applicant complains that his deportation from the United Kingdom to Morocco contravened the above provision.   36.    The Commission recalls in the first place that, while it is clear that no right of an alien to enter or to reside in a particular country, nor a right not to be expelled from a particular country is as such guaranteed by the Convention (see for example, Application No. 9203/80, Dec. 5.5.81, D.R. 24 p. 239), it has also repeatedly stated that, in view of the protection of the right to respect for family life afforded by Article 8 (Art. 8), the expulsion of a person from a country in which his immediate family is resident may give rise to issues under this provision of the Convention (Application No. 9478/81, Dec. 8.12.81, D.R. 27 p. 243).   37.    The Commission has given consideration first to whether there were real and effective family ties between the applicant and his family which attract the protection of the above provision. The Government have contended that prior to the deportation the applicant had intended to move out of the family home and that he had lived in Morocco for a period in 1981 and from February 1988 to September 1989. In these circumstances, the Government submit that the deportation did not interfere with the applicant's private or family life.   38.    The Commission notes, however, that the applicant had lived in the United Kingdom with his family from about 1974 and that he had no family or friends in Morocco. Though it appears that the applicant's relationship with his father was problematic, viz. his father abandoned him in Morocco in February 1988, his continued close relationship with his family is evidenced by the fact that his sister went to Morocco to find and bring him back and also by the financial assistance given to him by his mother since his deportation order.   The Commission therefore finds that the deportation order constituted an interference with the applicant's right to respect for his family life.   It is unnecessary to examine whether at the same time it constituted an interference with his private life.   39.    According to constant case-law, an interference with the right to respect for family life entails a violation of Article 8 (Art. 8) of the Convention unless it was "in accordance with the law", had an aim or aims that is or are legitimate under Article 8 para. 2 (Art. 8-2) and was "necessary in a democratic society" for the aforesaid aim or aims (see, inter alia, Eur. Court H.R., W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, p. 27, para. 60 (a)).   40.    As regards "in accordance with the law", the Commission notes that the deportation order was made by the Secretary of State pursuant to the provisions of the Immigration Act 1971.   The applicant has not alleged that the measure was in any way unlawful.   As to the aims pursued by the deportation order, the Government submit that the decision was a legitimate measure of immigration control taken for the prevention of disorder and crime.   The applicant has not put this matter in issue and the Commission sees no reason to doubt that this was the purpose of the measure.   41.    The Commission accordingly considers that the deportation order was "in accordance with the law" and pursued the legitimate aim of the prevention of disorder and crime.   42.    It remains to be examined whether the deportation order was "necessary in a democratic society" for the above aim.   The case-law of the Commission and the Court establishes that the notion of necessity implies that the interference corresponds to a pressing social need and in particular that it is proportionate to the legitimate aim pursued (Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A no. 138, pp. 15-16, para. 28).   43.    Further, in determining whether an interference is necessary, the Commission and the Court will take into account that a margin of appreciation is left to the Contracting States, which are in principle in a better position to make an initial assessment of a given interference. In this context, the Court has stated that it does not "in any way underestimate the Contracting States' concern to maintain public order, in particular in exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry, residence and expulsion of aliens" (see Eur. Court H.R., Moustaquim judgment of 18 February 1991, Series A no. 193 p. 19, para. 43).   44.    The Commission and Court have already examined issues comparable to those in the present application in the above case of Moustaquim (loc. cit.) and in the Beldjoudi case (Eur. Court H.R., judgment of 26 March 1992, Series A no. 234-A) and have found that the deportation of the applicants was not justified under the above principles.   In each case, regard was had to the circumstances and background of the applicant - in particular, the ties of the applicant with the deporting country - in assessing whether the authorities had achieved a just balance between the seriousness of the interference with the applicant's right to respect for his family life and the public interest in the prevention of disorder.   45.    As regards the seriousness of the interference in this case, the Government have submitted that the applicant had spent a not inconsiderable time in Morocco by the date of his deportation and that he thereby had links with that country. The Commission recalls however that the applicant had lived in the United Kingdom from an early age, that his close relatives all live in the United Kingdom and that he had received his education there.   Until he was abandoned there in 1988 the applicant had no real links with Morocco or acquaintance with its culture or language. Although he is legally an alien, his family and social ties are therefore in the United Kingdom and his nationality status does not reflect his actual position in human terms.   46.    In these circumstances, the Commission finds that the deportation constitutes such hardship that only in exceptional circumstances could it be justified as proportionate to the aim pursued under Article 8 para. 2 (Art. 8-2).   47.    In this connection, the Government have pointed to the applicant's long history of criminal offences and his failure to heed a warning to change his ways.   The Commission notes, however, that while the applicant has a history of committing minor offences, his criminal record is in fact less serious than that of the applicant in the Beldjoudi case, who had been sentenced to a term of 8 years imprisonment for aggravated theft and shorter than that of the applicant in the Moustaquim case who had a criminal record of a very large number of offences (loc. cit.).   Further, though prior to his deportation the applicant was convicted of a drugs offence he received a comparatively light sentence, suspended, which seems to indicate that the Court did not consider the crime to merit the imposition of an immediate custodial sentence.   48.    In light of the above, the Commission considers that the applicant's deportation was not proportionate to the legitimate aim pursued and is thus in violation of Article 8 (Art. 8) of the Convention.   Conclusion   49.    The Commission concludes, by 13 votes to 1, that there has been a violation of Article 8 (Art. 8) of the Convention.   D.     As regards Article 14 in conjunction with       Article 8 (Art. 14+8) of the Convention   50.    In view of the finding in para. 48 above, however, the Commission does not consider it necessary also to examine the complaint that the applicant, as a result of his deportation, suffered discrimination contrary to Article 14 (Art. 14) in the enjoyment of his right to respect for his family life (Eur. Court H.R., Beldjoudi judgment, loc. cit).   Conclusion   51.    The Commission concludes, by 13 votes to 1, that it is unnecessary to decide whether there has been a violation of Article 14 (Art. 14) of the Convention.   E.     Recapitulation   52.    The Commission concludes by 13 votes to 1, that there has been a violation of Article 8 (Art. 8) of the Convention (para. 49 above).   53.    The Commission concludes by 13 votes to 1, that it is unnecessary to decide whether there has been a violation of Article 14 (Art. 14) of the Convention (para. 51 above).   Secretary to the Commission             President to the Commission         (H.C. KRÜGER)                          (C.A. NØRGAARD)      Partly concurring partly dissenting opinion of Mr. H.G. Schermers   As regards Article 8 of the Convention         I agree with the majority of the Commission that the expulsion of the applicant constitutes a violation of Article 8 of the Convention.   As I explained in my concurring opinion in the case of Beldjoudi (No. 12083/86, Comm. Rep. 6.9.90) I would prefer to decide this kind of case on the basis of private life rather than of family life.   In the present case, however, the elements of family life are of such a decisive nature that it is fully justified to base the reasoning on this aspect, even though the applicant has reached the age of 25.         With respect to the reasoning, I venture one remark.   The majority of the Commission refer (see para. 43) to the following comment by the Court:         "The Court does not in any way underestimate the Contracting       States' concern to maintain public order in particular in       exercising their right as a matter of well-established       international law and subject to their treaty obligations, to       control the entry, residence and expulsion of aliens". (Eur.       Court H.R., Moustaquim judgment of 18.2.91, Series A No. 193 -       para. 43)         I fully agree with the Court that there is well-established international law granting States full control over entry of aliens. I am not so sure, however, whether international law concerning the expulsion of aliens is not changing fundamentally as a result of growing concern for human rights and of a perceived need for solidarity among States in the face of increasing interstate relations.   By admitting aliens to their territory States inevitably accept at least some measure of responsibility.   This responsibility weighs even more heavily in the case of children educated in their territory.   For any society, individuals like the present applicant are a burden.   Even independent of human rights considerations, I doubt whether modern international law permits a State which has educated children of admitted aliens to expel these children when they become a burden. Shifting this burden to the State of origin of the parent is no longer so clearly acceptable under modern international law.   It is at least subject to doubt whether a host country has the right to return those immigrants who prove to be unsatisfactory.   As regards Article 14 in conjunction with Article 8 of the Convention         With respect to Article 14 of the Convention, the case-law of the Court in previous cases is not entirely clear.   In the Moustaquim case it was held that there was no breach of Article 14 of the Convention as the applicant could not be compared to Belgian juvenile delinquents (A 193, p. 20); in the Beldjoudi case the Court found it unnecessary to examine the complaint under Article 14 of the Convention in view of the fact that the deportation of Mr. Beldjoudi would violate Article 8 (A 234 A, para. 81).   In the present case the Commission followed Beldjoudi as the more recent case of the Court.   I nonetheless have some difficulty in accepting this solution.   Discrimination is a separate infringement and should be independently evaluated.   Even though the present applicant has no United Kingdom nationality, he may well be compared to United Kingdom nationals in the context of punishment for a specific crime.         I agree with the respondent Government that States are fully entitled to limit the number of non-nationals entering their territory. However, by admitting non-nationals governments undertake to grant them as much as possible the same treatment as nationals.   This follows from a number of obligations prohibiting discrimination on the ground of national origin.         Over the years, the Commission has received a large number of complaints from aliens who have been convicted of criminal acts, punished and subsequently expelled.   In their applications, they claimed that they were punished more heavily for the same acts than nationals, the latter not receiving the additional punishment of expulsion once their prison sentences had been served.         The Commission has   consistently held that expulsion is an administrative act and therefore cannot be considered additional punishment.         In my opinion this approach is too formalistic.   In reality expulsion is often a more heavy punishment than a prison sentence.   In many cases it totally upsets the life of the person concerned.   In my opinion therefore, expulsion following a prison sentence, should be seen as an additional punishment.   If this addition is not compensated, for example, by a lower prison sentence, the alien is more heavily punished than the national and this, in my view, constitutes a violation of Article 14 in conjunction with Article 8 of the Convention.                                 Appendix I                         HISTORY OF THE PROCEEDINGS   Date                              Item ________________________________________________________________   06.02.90          Introduction of the application   12.02.90          Registration of the application   Examination of admissibility   15.02.90          Commission's decision to invite the Government to                  submit observations in writing.   30.05.90          Government's observations   07.09.90          Commission's grant of legal aid   15.09.90          Applicant's reply   05.09.91          Commission's decision to invite the parties to a                  hearing   17.01.92          Hearing on the admissibility and merits.   Examination of the merits   17.02.92          Commission's deliberations on the merits   04.07.92          Consideration of the state of proceedings   13.10.92          Commission's deliberations on the merits, final votes                  and adoption of the Report