THE FACTS

Whereas the facts presented by the applicant may be summarised as

follows:

The applicant is a citizen of Pakistan, born in 1932 and resident in

Rawalpindi, West Pakistan.

On 6 November 1968 he lodged with the European Commission of Human

Rights an application under Article 25 of the Convention complaining

of his arrest in the United Kingdom in 1958, his conviction and

sentence on 16 May 1968 by the H. Borough Court on a charge of indecent

assault and the loss of certain property as a result of his

deportation.

The applicant also made certain further complaints in relation to the

effect of deportation on his family life, the alleged refusal by the

authorities to allow him to see his son and Mrs. C. who is the mother

of his child, and the alleged refusal by the authorities to allow him

to marry Mrs. C. in prison. In this connection he explained that he had

a son by Mrs. C., an English woman living in L.. He stated that up to

April 1968 he was paying Mrs. C. a weekly sum as maintenance and that

while he was in prison in L. she applied to the Prison Governor to

marry him and he sent his consent to the Home Office. However,

permission was refused and the applicant's allegations in this respect

were supported by two letters from Mrs. C. who said that their son was

pining for his father. The applicant further stated that he was not

allowed to see his son or Mrs. C. before leaving England.

Proceedings before the Commission

The Commission examined the applicant's complaints on 2 February 1970

and, by partial decision, declared inadmissible certain parts of the

application. The Commission found that, in regard to his complaints

relating to his arrest and to certain irregularities in the course

thereof, as well as in regard to his conviction and sentence and the

court proceedings concerned, the applicant had failed to exhaust

domestic remedies (Articles 26 and 27 (3), of the Convention). In

regard to his complaints relating to his deportation from the United

Kingdom the Commission found that they were incompatible with the

provisions of the Convention ( Article 27 (2)) insofar as these

complaints concerned deportation as such, and manifestly ill-founded

(Article 27 (2)) insofar as they might be considered in relation

Article 3 of the Convention. Furthermore, the Commission rejected as

being manifestly ill-founded the applicant's complaints regarding the

loss of his property.

However, in regard to his complaints in relation to the effect of

deportation on his family life, the alleged refusal by the authorities

to allow him to see his son and Mrs. C. before deportation, and the

alleged refusal to allow him to marry Mrs. C. in prison, the Commission

decided, in accordance with Rule 45 (3) of its Rules of Procedure to

give notice of these complaints to the United Kingdom Government and

to invite the Parties to submit their observations in writing on the

question of admissibility.

The United Kingdom Government submitted its observations on 25 March

1970 and the applicant sent his observations in reply on 23 May 1970.

Submissions of the Parties

1. (a) The respondent Government first refers to Part II of the

Commonwealth Immigrants Act 1962 which governs the deportation from the

United Kingdom of such persons who are Commonwealth citizens within the

meaning of Section 6 of that Act. Under Section 7 (1) of the Act, where

such Commonwealth citizen who has attained the age of seventeen years

is convicted of an offence punishable with imprisonment, the court by

which he is convicted may recommend that a deportation order be made

in respect of him. Section 7 (2) provides that no recommendation for

deportation may be made where the Commonwealth citizen satisfies

certain residence requirements (five years prior to conviction) and

under Section 9 (1), where such recommendation has been made, the

Secretary of State may make an order requiring the Commonwealth citizen

concerned to leave the United Kingdom and prohibiting him from

returning there so long as the order is in force.

(b) The respondent Government next sets out the relevant facts.

According to the Government's submissions the applicant, who is a

Commonwealth citizen on 16 May, 1968 pleaded guilty at H. B.

Magistrates' Court to two offenses of indecently assaulting a girl aged

fourteen years and to one offence of indecently assaulting a girl aged

eleven years. He was sentenced to two months' imprisonment in respect

of each offence to run consecutively and the Court made a

recommendation under Section 7 (1) of the above Act that he be

deported. Section 7 (2) of the Act did not apply to the applicant who

had come to the United Kingdom in July 1963.

Following his conviction the applicant was detained at L. prison.

During his detention he made ten applications for visiting orders for

Mrs. C. all of which were granted and the latest of which resulted in

a visit by Mrs. C. on 7 September 1968. The applicant made no

subsequent application for visiting orders whilst at L. prison nor has

any complaint been received from him concerning the alleged refusal of

the prison authorities and the police to allow him to see Mrs. C. and

his son before he was deported.

Furthermore, in various interviews conducted by the prison and

immigration authorities the applicant stated that he was married with

four children, his wife living in Pakistan, that he had been giving her

financial support and that he intended to arrange for his wife and

children to join him in the United Kingdom in the middle of 1968. He

had previously informed the police officers investigating his case of

his wife and four children in Pakistan and, on 11 September 1968,

petitioned the Home Secretary not to make a deportation order against

him submitting, inter alia, that he was supporting his wife, his

parents, his widowed sister and his four children in Pakistan from the

wages he earned in the United Kingdom.

In his said petition the applicant further stated that he was also

supporting this son by Mrs. C. by giving her £1.25 weekly towards his

maintenance and that he did not wish the child to be without a father.

Mrs. C. herself in September 1968 had written a letter to the Home

Secretary asking that the applicant should not be deported as she

wished to marry him and he was the father of her two youngest children.

At about the same time she had addressed a letter to the Governor of

L. prison asking for permission to marry the applicant but in view of

the information available to the Governor that the applicant was

already married and his wife was alive in Pakistan it had not been

possible to accede to her request.

Mrs. C. was subsequently interviewed by the police and it was

ascertained that she was a widow, that she had known the applicant for

almost five years, and that she had five children, four by her husband

and the youngest, a two-year-old boy, by the applicant.

Giving full and careful consideration to the matters set out in the

applicant's petition and in Mrs. C.'s letter to the Home Secretary, the

latter made on 18 September 1968 an order under Section 9 (1) of the

Act for the deportation of the applicant which was carried out on 9

October 1968.

(c) The United Kingdom Government submits that, in the light of these

facts, the remainder of the applicant's application is either

incompatible with the provisions of the Convention or, in the

alternative, manifestly ill-founded.

The Government considered under Article 8 of the Convention the

applicant's complaint relating to the effect of deportation on his

family life and submits in the first place that there was no

interference with his family life by the authorities and thus no

violation of paragraph (1) of that provision. The Government points out

that deportation of the applicant resulted in his return to Pakistan

where his wife and their children reside, that it remains open for the

applicant to arrange for Mrs. C. and her son to join him there, and

that, finally, by committing offenses resulting in his conviction he

placed himself, by his own actions, in jeopardy of deportation and thus

an ensuing disruption of his family life for which he was alone

responsible could not be regarded as an interference with such family

life within the meaning of Article 8 (1).

The Government next submits that, even assuming that the deportation

of the applicant could be considered as constituting an interference

with his right to respect for his family life, such interference was,

in the circumstances, allowed under paragraph (2) of Article 8 of the

Convention as being in accordance with the law and necessary in a

democratic society for the prevention of disorder or crime or for the

protection of health and morals.

The Government then considered under Article 8 of the Convention the

applicant's complaint relating to the alleged refusal of permission to

see his son and Mrs. C. before his deportation from the United Kingdom.

The Government submits that this allegation is without substance in

view of the numerous visits which the applicant had from Mrs. C. and

his son and of the fact that, subsequent to 7 September 1968 no

application for such a visit had been made by him.

The respondent Government finally considered under Article 12 of the

Convention the applicant's complaint that he was not allowed to marry

Mrs. C. in prison. In this connection the Government submits that under

that provision the right to marry is secured only according to the

national laws governing the exercise of that right, and English law

precludes a marriage in England between persons one of whom is a party

to a persisting marriage. Consequently, since the applicant at the time

was already married, he had no right under Article 12 of the Convention

to contract a further marriage in England with Mrs. C. and leave to

marry in prison was legitimately refused by the Home Secretary being

the authority responsible for his imprisonment.

2. The applicant's observations in reply have been submitted on 23 May

1970. Insofar as it is possible, from the incoherent terms of the

applicant's submissions, to ascertain the substance of his reply, it

appears that he considers the United Kingdom Government's observations

on admissibility as not showing the true facts of his case.

He first submits again that he was wrongly convicted and sentenced and

that his deportation was not according to law. In this respect he

refers to submissions previously made to the Commission and, in

particular, to his letter to the Home Office, dated 4 June 1969 in

which he had appealed against the deportation order.

He further submits that, "before one month of this case" , he had

obtained a divorce by telephone from his wife in Pakistan in accordance

with Muslim law. He contends that the prison authorities must have

misunderstood his statement that he was obliged to pay maintenance to

his wife and children in Pakistan in that they inferred from this that

he was still married. In fact, however, he had been divorced but was

nevertheless under an obligation to support his wife and children.

Furthermore, it was true that the prison authorities had allowed

certain visits to which, in his opinion, he was entitled. However, they

had not allowed "the special and last visit" of Mrs. C. and his

children in England before deporting him although he had asked the

Governor's and Welfare Officer's permission for that visit. Moreover,

the authorities had consistently refused his requests to see the

representative of Pakistan at L..

The applicant finally submits that as a result of his deportation he

is presently suffering considerable hardship in Pakistan. He states

that he has not yet received his clothes, papers and other personal

goods which he was obliged to leave behind in England. Without these

papers and certificates he is allegedly unable to find employment in

Pakistan and is obliged to borrow money in order to survive. He also

states that, in the meanwhile, his property in England had partly been

stolen or destroyed or sold and that he had not received any value in

return for the loss suffered. In this connection, he encloses a

complete list of the objects concerned.

The applicant refers specifically to the terms of his letter of 4 June

1969 to the Home Office copy of which he had previously submitted in

support of his application and now includes again in his observations

on admissibility. He alleges generally that the injustices which he has

suffered are the consequences of racial discrimination.

He requests compensation in the amount of £2,000 or permission to

return to England.

THE LAW

Whereas, with regard to the applicant's complaint relating to the

effect of deportation on his family life, the Commission had regard to

Article 8 (Art. 8) of the Convention which guarantees generally the

right to family life; whereas, however, paragraph (2) of Article 8

(Art. 8-2) of the Convention provides that "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";

Whereas the Commission has stated in a number of previous decisions

(for instance, Application No. 3170/67, X. v. Belgium and the United

Kingdom) that the terms of paragraph (2) (Art. 8-2) left a considerable

measure of discretion to the domestic authorities in taking into

account factors in the case which might appear to them to be critical

for the prevention of disorder or crime; whereas, nevertheless, the

Commission has ultimately the duty to judge whether or not the

interference complained of exceeded the margin of appreciation left to

the authorities in such cases and was thus not justified under the

provisions of paragraph (2) (Art. 8-2);

Whereas, in the present case, the Commission observes that the

applicant has been convicted of three offenses of indecently assaulting

a girl under age after having pleaded guilty to these offenses;

Whereas the court by which he was convicted made a recommendation under

Section 7 (1) of the Commonwealth Immigrants Act 1962, that a

deportation order be made in respect of him; and whereas it is clear

that the court and the authorities were concerned, when deciding the

question of his deportation, with the necessity of preventing disorder

or crime in the United Kingdom;

Whereas the Commission finds that the decisions taken in this respect

were reasonable having regard to the seriousness of the offenses

concerned and in no way exceeded the "margin of appreciation" as

regards the measures necessary in the circumstances for the prevention

of disorder or crime within the meaning of Article 8 (2) (Art. 8-2) of

the Convention;

Whereas the Commission concludes that, even assuming that any family

life within the meaning of Article 8 (Art. 8) of the Convention existed

in the present case, this part of the application is manifestly

ill-founded and must be rejected in accordance with Article 27,

paragraph (2) (Art. 27-2), of the Convention;

Whereas, with regard to the applicant's complaint relating to the

alleged refusal of permission to obtain the visit of his son and Mrs.

C. before the deportation from the United Kingdom, the Commission had

again regard to the provisions of Article 8 (Art. 8) of the Convention;

Whereas it is not contested that on several occasions the applicant had

the visit of Mrs C. and his son in prison but he alleges that the

authorities refused him the "last and special visit" prior to his

deportation; whereas, however, the applicant failed to show that he

made a formal request for that visit or that any visit requested by him

had been refused by the authorities;

Whereas, consequently, the Commission finds that, again assuming the

existence of a family life within the meaning of Article 8 (Art. 8) of

the Convention, an examination of the application does not disclose any

appearance of violation of the rights and freedoms set forth in the

Convention and, in particular, in Article 8 (Art. 8);

Whereas it follows that this part of the application is equally

manifestly ill-founded and must be rejected in accordance with Article

27, paragraph (2) (Art. 27-2), of the Convention;

Whereas finally, in regard to the applicant's complaint that he was not

allowed to marry Mrs. C. in prison, the Commission had regard to

Article 12 (Art. 12) of the Convention which provides that "men and

women of marriageable age have the right to marry and to found a

family, according to the national laws governing the exercise of this

right;

Whereas the Commission observes that, according to the information

available at the time at which the authorities refused the applicant's

petition to marry Mrs. C. in prison he was married in Pakistan and that

English law precludes a marriage in England between persons one of whom

is a party to a subsisting marriage; whereas his statement that he was

divorced from his wife in Pakistan prior to his deportation has

apparently only been made during the proceedings before the Commission,

i.e. after his deportation; whereas these submissions have not been

substantiated by any evidence nor has the applicant shown that he made

it clear to the United Kingdom authorities, prior to his deportation,

that he was no longer married in Pakistan;

Whereas, consequently, an examination of this complaint as it has been

submitted also does not disclose any appearance of a violation of the

rights and freedoms set forth in the Convention and, in particular, in

Article 12 (Art. 12); whereas it follows that this part of the

application is manifestly ill-founded within the meaning of Article 27,

paragraph (2) (Art. 27-2), of the Convention.

Now therefore the Commission DECLARES THE REMAINDER OF THIS APPLICATION

INADMISSIBLE