Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 36336/97

by Lai Man KWONG

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 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. MARXER

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 17 June 1996 by

Lai Man KWONG against the United Kingdom and registered on 5 June 1997

under file No. 36336/97;

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 Chinese (Hong Kong) citizen, born in 1973. At

present he lives in Hong Kong. He is represented before the Commission

by Mr. D. Hodson, solicitor, of Oxford.

The applicant entered the United Kingdom in 1987 as a visitor and

was subsequently granted extensions of stay. He failed however to renew

his application and had been staying illegally since 28 September 1992.

On 1 July 1993 he was interviewed by immigration officers, having been

arrested by the police the previous day for criminal matters (see

below). On the same date he was served with a notice of intention to

deport him as an overstayer by virtue of Immigration Acts 1971 and

1988. The applicant appealed against this decision to an independent

adjudicator. The appeal was dismissed on 7 March 1994, with leave to

appeal to the Immigration Appeals Tribunal being refused on

12 May 1994. A deportation order was made against him on 5 July 1994.

This order was served upon the applicant on 31 December 1994.

By that time investigations had been commenced in the criminal

case suggesting that the applicant had been recruited into a Chinese

gang operating in Yorkshire. On 31 May 1995 the Leeds Crown Court

convicted the applicant of conspiracy to blackmail. He was sentenced

to 8 years' imprisonment. Upon his appeal against the sentence, on

4 March 1996 the Court of Appeal reduced the sentence to 6 years'

imprisonment.

On 5 July 1995 he made a new application to be granted leave to

remain, after completing his sentence, in the United Kingdom on the

basis of his marriage of 26 June 1995. The above application was

reviewed by immigration authorities. In response to their enquiries the

applicant advised that the couple had first met while his future wife,

a citizen of the United Kingdom, had visited him in prison on

24 December 1993.

The application was nonetheless dismissed. On 24 November 1995

the applicant was informed that the Secretary of State had found no

circumstances justifying his stay. It was found that the deportation

proceedings against the applicant had commenced some five months prior

to the date on which he had first met his wife and thus, under domestic

immigration policy guidelines, he could enjoy no concessions with a

view to the deportation being revoked.

The applicant, through the MP for his constituency, requested the

Secretary of State that his case would be again referred to the

Immigration Appeals Tribunal. By a letter of 2 April 1996 the Secretary

of State refusal the request, noting that the applicant's case had been

"fully and fairly considered". In concluding the Secretary of State

held inter alia that he was not persuaded that the deportation order

against the applicant should be revoked given the applicant's "recent

conviction ... relating to Triad activities".

After being released from prison on 16 September 1996, the

applicant was removed from the United Kingdom.

COMPLAINTS

The applicant complains under Article 8 of the Convention that

in deporting him to Hong Kong the United Kingdom acted contrary to

domestic immigration provisions and failed to respect his family life

in violation of the above provision of the Convention. He asserts that

British immigration authorities had no sufficient regard to the effect

of the deportation on his wife who does not speak the Chinese language,

nor she has any family or other connections with Hong Kong. He alleges

that his wife's life in Hong Kong might have a detrimental effect on

her possible pregnancy and her health condition in general. The

applicant further contends that his single criminal conviction did not

entitle the U.K., in deporting him, to rely on the interests of

national security, public safety, or the aim of the prevention of

disorder or crime within the meaning of Article 8 para. 2 of the

Convention.

THE LAW

The applicant complains that the United Kingdom, in deporting him

to Hong Kong, failed to respect his family life in breach of Article 8

(Art. 8) of the Convention.

Article 8 (Art. 8) of the Convention, insofar as relevant,

provides as follows:

"1. Everyone has the right to respect for his private and

family life ...

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."

The Commission firstly recalls that the deportation of a married

person does not necessarily interfere with his family life when the

spouse has the possibility to follow him (mutatis mutandis,

No. 11278/84, Dec. 1.7.85, D.R. 43, p. 216; No. 12461/86,

Dec. 10.12.86, D.R. 51, p. 258).

The Commission notes that the applicant himself has strong

connections with Hong Kong, having only arrived in the United Kingdom

in 1987 as a visitor at the age of 14. The applicant, however, submits

that his wife, who does not speak the Chinese language and has no

family or other connections with Hong Kong, could not be expected to

follow him and that to do so might have a detrimental effect on her

health.

The Commission does not find it necessary to determine whether

in the particular circumstances of this case the deportation of the

applicant would interfere with his family life, since even if it did

amount to such an interference the applicant's complaint should in any

event be rejected for the following reasons.

The Commission considers that any interference with the

applicant's right to respect for family life was in accordance with the

law (Immigration Acts 1971 and 1988), and served the legitimate aims

of "the prevention of disorder or crime" under the second paragraph of

Article 8 (Art. 8) of the Convention.

The question remains whether the deportation in question was

justified as being "necessary in a democratic society" for the purpose

of achieving those aims and, in particular, whether the deportation of

the applicant was a proportionate response in the particular

circumstances of the case.

In this regard, the Commission notes in the first place that, as

pointed out in the decision of the Secretary of State dismissing the

renewed application to remain, the applicant met his future wife at a

time when he was in the United Kingdom illegally and when deportation

proceedings had already been commenced against him. Hence, when he

later contracted the marriage, he must have been aware of the resulting

insecurity. Thus the fact of the applicant's marriage cannot be

regarded as having a decisive weight (see e.g., Eur. Court HR,

Dalia v. France judgment of 19 February 1998, para. 54, to be published

in Reports of Judgments and Decisions).

The Commission further notes that the applicant was convicted of

a gang-related offence of conspiracy to blackmail and received an

immediate custodial sentence of 8 years' imprisonment. Even though the

sentence of imprisonment was subsequently reduced to 6 years, the fact

of the applicant's conviction of such a serious offence, as well as the

severity of the sentence imposed therefor, must be regarded as weighing

heavily in the balance (see e.g., mutatis mutandis, Eur. Court HR,

Boughanemi v. France judgment of 24 April 1996, Reports of Judgments

and Decisions 1996-II, pp. 609-610, paras. 39-45; Eur. Court HR, Dalia

judgment of 19 February 1998, para. 54, to be published in Reports of

Judgments and Decisions).

In these circumstances the Commission finds that the deportation

of the applicant to Hong Kong did not upset the fair balance to be

struck by the United Kingdom authorities between the interest of the

applicant's "right to respect for his family life" and the interest of

"the prevention of disorder or crime" for the purpose of Article 8

para. 2 (Art. 8-2) of the Convention.

Accordingly, even assuming that there was an interference with

the applicant's right to respect for family life within the meaning of

Article 8 para. 1 (Art. 8-1) of the Convention, the Commission

considers that the applicant's deportation cannot be regarded as

disproportionate to the legitimate aims pursued.

It follows that the above complaint is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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KWONG v. THE UNITED KINGDOM

KWONG v. THE UNITED KINGDOM

LEXI