Lexploria

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

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LAMGUINDAZ v. THE UNITED KINGDOM

LAMGUINDAZ v. THE UNITED KINGDOM

LEXI