CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1998

.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. 38294/97                       by Mohammed SALEEM                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 4 March 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              Mrs    M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 18 December 1996 by Mohammed SALEEM against the United Kingdom and registered on 22 October 1997 under file No. 38294/97;        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 Pakistani national, born in 1945 and currently resident in Rawalpindi, Pakistan. He is represented by Rahman and Co., solicitors of Tottenham, London.        The facts of the case, as submitted by the applicant, can be summarised as follows   A.     Particular circumstances of the case        The applicant was born in Rawalpindi, Pakistan and went to the United Kingdom in 1975. He was given indefinite leave to stay prior to 1990 and applied for British citizenship in 1995.        In January 1977, the applicant was employed in a civilian capacity by the High Commission of Pakistan as a clerical assistant. Initially, he worked for the investment centre until January 1978 when he commenced work for the military accounts section.        The applicant's employment carried no diplomatic status and involved no activities outside the work of the High Commission itself.        By a letter dated 9 February 1996, the Secretary of State for the Home Department decided to make an deportation order against the applicant for reasons of national security, namely, activities associated with nuclear weapons. A Home Office statement accompanying the letter outlined the Home Office's views as to the applicant's activities. It stated that the applicant had acted as a covert representative for Khan Research Laboratories (KRL) which was involved in the research, development and covert procurement of nuclear weapons. The applicant's activities had included seeking to procure equipment and scientific literature for KRL, administration of KRL sponsored students in the United Kingdom, arranging letters of credit for KRL and acting as their agent at the patent office.        The applicant was informed that pursuant to s. 15(3) of the Immigration Act 1971 he would not be able to appeal the Secretary of State's decision to deport him. However, he would be able to make representations before an independent advisory panel where he could not be legally represented.        On 9 February 1996, the Foreign Office ceased to recognise the applicant as a member of the Pakistan High Commission, having given notice to the High Commission that he was not acceptable as provided by the terms of the Vienna Convention on Diplomatic Relations 1961. Consequently, the applicant's employers dismissed him.        In his correspondence with the Home Office, the applicant denied being a covert representative of KRL or carrying out activities associated with KRL. He emphasised the relatively lowly nature of his employment at the High Commission.        The applicant requested that he be given more detailed information concerning the case against him, including the Government's sources, and, further, that he be allowed legal representation before the advisory panel and be given the reasons for the panel's decision. These requests were refused by the Government.        The applicant presented his case to the advisory panel on 4 April 1996. The panel then gave advice, which was not disclosed to the applicant, to the Home Secretary. As a result of the advice, the Home Secretary decided on 27 April 1996 that the applicant should be deported. The decision was served on the applicant on 20 May 1996.        The applicant applied to the High Court on 23 July 1996 for judicial review of the decision to deport him. The applicant argued first, that the reasons given for his deportation did not fall within the ambit of national security and secondly, that the procedure before the advisory panel was unfair since the applicant was unrepresented and was not informed precisely of the case against him. The judge rejected both arguments. He noted that there were public policy reasons as to why informants should not be identified. He also held that it was a matter for Parliament to amend the manner in which the advisory panel operated.        The applicant was then advised by counsel that, although an appeal could theoretically lie to the Court of Appeal, it would be a pointless exercise. The applicant, consequently, did not appeal.        The applicant was deported from the United Kingdom in 1996. He currently lives in Pakistan.   B.    Relevant domestic law and practice        Indefinite leave        Under immigration law in the United Kingdom, a person with indefinite leave to remain has a right to seek and take employment, to purchase or lease property in which he has a right to reside indefinitely, and to send his children to school in the United Kingdom. He is also entitled to state benefits.        Deportation        Section 3(5) of the Immigration Act 1971 provides, insofar as is relevant:        "A person who is not a British citizen shall be liable to      deportation from the United Kingdom -        (b) if the Secretary of State deems his deportation to be      conducive to the public good        Section 15 of the Immigration Act 1971 provides, insofar as is relevant:        "(3) A person shall not be entitled to appeal against a      decision to make a deportation order against him if the      ground of the decision was that his deportation is      conducive to the public good as being in the interests of      national security or of the relations between the United      Kingdom and any other country or for other reasons of a      political nature"   COMPLAINTS        The applicant invokes Article 6 para. 1 of the Convention. He contends that the procedure adopted by the advisory panel, the Secretary of State's decision to deport him and the Foreign Office's decision to cease to recognise the applicant as a member of the Pakistan High Commission all determined his civil rights and obligations and must therefore be considered within the ambit of Article 6 para. 1.        The applicant alleges that the procedure before the advisory panel was in breach of Article 6 para. 1 since he was not permitted legal representation and was not informed of the details of the allegations against him nor given the names of the Home Secretary's informants. He also complains that the decision made by the Home Secretary violated Article 6 para. 1 as he was not informed that the decision was being made, could not make representations, was not provided with the details of the allegations against him and was not entitled to appeal the decision. As regards the Foreign Office decision, the applicant contends again that he was not informed of the details of the allegations against him and could neither make representations nor appeal the decision.   THE LAW        The applicant has complained that he was denied a fair hearing in terms of the manner in which the decision to deport him was taken by the Home Secretary, the Foreign Office's decision to cease recognising him as a member of the Pakistani High Commission and his ability to present his case before the advisory panel.        Article 6 para. 1 (Art. 6-1) of the Convention provides in its first sentence:        "In the determination of his civil rights and obligations      or of any criminal charge against him, everyone is entitled      to a fair and public hearing within a reasonable time by an      independent and impartial tribunal..."        The Commission notes that its case-law has held that the right of an alien to reside in a particular country is a matter governed by public law and that proceedings relating to deportation, expulsion or asylum fall outside the scope of Article 6 para. 1 (Art. 6-1), as not concerning any determination of civil rights or obligations. Accordingly it has been previously held that in such cases the State is not required to grant a hearing conforming to the requirements of Article 6 para. 1 (Art. 6-1) (see No. 7729/76, Dec. 17.12.76, D.R. 7, p. 164; No. 8118/78, Dec. 19.3.81, D.R. 25, p. 105 and No. 9990/92, Dec. 15.5.94, D.R. 39, p. 119).        The applicant has argued however that since he had been given indefinite leave to remain in the United Kingdom the Secretary of State was precluded from imposing any condition restricting employment. In addition, he argues that the deportation order resulted in loss of employment with its concomitant financial implications. Further because the allegations made against him by the Home Secretary were all linked to his employment at the High Commission, the deportation decision can be seen to be directly decisive of his private law rights of contract of employment.        The Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention has been held to apply where the subject matter of proceedings is "pecuniary" in nature and is founded on an alleged infringement of rights which are likewise pecuniary, or where the outcome of the proceedings is directly decisive for private rights and obligations (see eg. Eur. Court HR, Balmer-Schafroth and others v. Switzerland judgment of 26 August 1997, Reports 1997-IV, No. 43). While the deportation decision had an obvious effect upon his employment since it resulted in his dismissal, the Commission notes that deportation orders will frequently have an impact upon a deportee's pecuniary interests. It considers that the applicant's loss of employment was a secondary and indirect result of the deportation order.        The Commission therefore finds that the applicant's complaints do not fall within the ambit of Article 6 para. 1 (Art. 6-1) and that therefore this application must be rejected as incompatible ratione materiae pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.        M.F. BUQUICCHIO                             M.P. PELLONPÄÄ         Secretary                                  President    to the First Chamber                       of the First Chamber