AS TO THE ADMISSIBILITY OF

                      Application No. 28021/95

                      by Rehmet KHAN

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 27 November 1996, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 L. LOUCAIDES

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           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 7 July 1995 by

Rehmet KHAN against the United Kingdom and registered on 25 July 1995

under file No. 28021/95;

     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 the Khaiyan

District of Pakistan in about 1945.   At the time of the application

he was incarcerated in Strangeways Prison, Manchester awaiting

deportation, but has now been deported.  The applicant is represented

before the Commission by Malik Adams Solicitors.  The facts as

submitted by the applicant can be summarised as follows.

     The applicant entered the United Kingdom some time in 1990 with

a six month visitor's visa.  In December 1990 he applied for political

asylum on the basis that members of his family were actively engaged

in the Pakistan People's Party ("PPP") and that he feared further

persecution as a result of their activities.  He contended that he had

been subjected to physical and psychological torture and had been

imprisoned on numerous occasions by the Pakistani authorities.  He

stated that his wife and uncle were tortured and murdered in political

circumstances and that he feared for his life should he return to

Pakistan.  His application was acknowledged by the Immigration and

Nationality Department by letter dated 7 January 1991 giving him

reference number K424842.  On 10 January 1991, the Immigration and

Nationality Department wrote to Rochdale Pakistani Welfare Association,

which was dealing with the applicant's case, asking for further details

so that his application for asylum could be processed.

     In March/April 1994 the applicant wrote to the Home Office

requesting permission to take up employment and was informed that there

was no legal prohibition preventing him from doing so.  On 12 May 1994

he was allocated a national insurance number and began part time

employment.

     On 27 October 1994 the applicant was detained and interviewed by

the immigration authorities.  He was issued with a notice from the

Immigration Officer in the following terms:

     "I have considered all the information available to me and

     I am satisfied that you are an illegal entrant as defined

     in Section 33(1) of the Immigration Act 1971.

     A.    You are therefore a person who is liable to be

     detained pending the completion of arrangements for dealing

     with you under the Act* I propose to give directions for

     your removal from the United Kingdom in due course and

     details will be given to you separately.

     B.    I hereby authorise your detention in police

     cells/Group 4.

     * paragraph 16 of Schedule 2 to the Act"

     The applicant commenced habeas corpus proceedings on 1 November

1994. On 11 November 1994 leave was granted for a full hearing of the

writ and a hearing date was fixed for 24 November 1994.  That date was

vacated by agreement between the parties and the hearing eventually

took place on 19 December 1994.  On 16 January 1995 judgment was given

in favour of the applicant, the Judge ordering his release.  The

Secretary of State and the Immigration Officer appealed that decision

and the matter was heard before the Court of Appeal on 20 January 1995.

On 3 February 1995 the Court of Appeal allowed the appeal and

overturned the decision of the Court below.  On 4 July 1995 the House

of Lords refused leave to appeal.

     By a letter dated simply "November 1994", the Secretary of State

refused the applicant's application for asylum.  The applicant appealed

against the refusal of the Secretary of State to grant him asylum on

12 October 1995.  On 17 April 1996, the day before the hearing before

the adjudicator, the applicant's representative applied for an

adjournment of the hearing.  It was refused on the basis that

conflicting reasons had been given for it and it was not therefore

considered a genuine application. The hearing before the adjudicator

therefore took place on 18 April 1996 in the absence of both the

applicant and his representative. On 26 April 1996 the adjudicator

dismissed the applicant's appeal against that decision.  The

adjudicator concluded the following:

     "Overall, this case appears to relate to a series of civil issues

     between the appellant and members of the village community where

     he was living in Pakistan.  It does not in my view reach the

     status of that of a person seeking Political Asylum......I have

     considered carefully the points set out in the grounds of appeal

     submitted on behalf of the appellant but I do not feel that these

     change in any way the decision which I reach concurring with that

     of the Secretary of State."

     On 10 May 1996 the Immigration Appeal Tribunal refused leave to

appeal from the decision of the adjudicator.  The Tribunal held that

the adjudicator had been entitled to proceed in the circumstances, that

he had considered all the evidence, that he had properly directed

himself as to the proper standard of proof, that he had come to clear

findings of fact giving to each element of the evidence the weight he

considered appropriate and that his conclusions were fully supported

by the evidence. On 13 May 1996 the applicant was notified of that

decision.

     The applicant's representative stated that the applicant was

liable to be deported on the expiry of 28 days after 21 May 1996.  The

applicant was deported on 25 July 1996.

COMPLAINTS

1.   The applicant complained that his deportation to Pakistan would

expose him to a risk of inhuman and degrading treatment within the

meaning of Article 3 of the Convention.

2.   The applicant submits that his detention in the United Kingdom

pending the determination of his application for asylum, and following

his experiences of torture and imprisonment whilst in Pakistan,

constituted inhuman and degrading treatment within the meaning of

Article 3 of the Convention.

3.   The applicant complains that he was deprived of his right to

liberty as guaranteed by Article 5 of the Convention, his detention not

falling within any of exceptions set out in Article 5 paragraph 1(a)-

(f).  As regards Article 5 para. 1(f), the applicant submits that he

was a refugee seeking political asylum and that his application was

still under consideration when he was detained.  As such, he submits

that no action in relation to deportation or extradition was pending

against him and his detention could not therefore fall within Article 5

para. 1(f).

4.   The applicant contends that if his arrest and detention is found

to fall within the scope of Article 5 para. 1(c), which he denies, he

was deprived of his rights under Article 5 para. 3.  He submits that

he was arrested and detained by reason of an administrative decision

and that no tribunal held jurisdiction to determine the matter on which

he had allegedly been arrested.  He contends that the authorities did

not intend to bring him before a Judge or judicial officer authorised

by law to exercise judicial power.

5.   The applicant also complains that he was detained from

27 October 1994 to 15 January 1995 and that the lawfulness of his

detention was not therefore determined speedily within the meaning of

Article 5 para. 4 of the Convention.

6.   The applicant further complains that he has been deprived of his

right to compensation under Article 5 para. 5 in respect of the alleged

violations of Article 5 paras. 1-4 referred to above

7.   The applicant invokes Article 6, submitting that because he was

not charged with any criminal offence, but detained as a result of an

administrative act, he was deprived of all the rights guaranteed in

Article 6.  Further, he submits that by virtue of the arbitrary nature

of the decision he must have been presumed guilty, contrary to

Article 6 para. 2 of the Convention.

THE LAW

1.   The applicant complained that his deportation to Pakistan would

expose him to inhuman and degrading treatment within the meaning of

Article 3 (Art. 3), which provides as follows.

     "No one shall be subjected to torture or to inhuman or degrading

     treatment or punishment."

     The Commission recalls that according to the case law of the

Convention organs, the Convention does not guarantee an alien the right

to reside in a particular country .  However, the expulsion of an

asylum seeker by a Contracting State may give rise to an issue under

Article 3 (Art. 3) where substantial grounds have been shown for

believing that the person concerned faces a real risk of being

subjected to torture or to inhuman or degrading treatment or punishment

in the country to which he is to be deported (see. Eur. Court HR, Cruz

Varas v. Sweden judgment of 7 July 1990, Series A no. 201, p. 28,

paras. 69-70, Vilvarajah and others v. United Kingdom judgment of

30 October 1991, Series A no. 215, p. 34, paras. 102-103).

     The Commission observes that the applicant claimed that he was

at risk of being subjected to torture or inhuman and degrading

treatment because members of his family were active in the Pakistan

People's Party ("the PPP").  The Commission observes that since the

applicant entered the United Kingdom in 1990, the PPP has been returned

to power in Pakistan.  In view of this fact and the fact that the

applicant has provided no further grounds for believing that he was or

is under a continued threat of suffering harm on his return to

Pakistan, the Commission considers that the applicant has not shown

substantial grounds for believing that he was exposed to a real risk

of being subjected to inhuman or degrading treatment within the meaning

of Article 3 (Art. 3) of the Convention on his return to Pakistan in

July 1996.

     It follows that this part of the application must be dismissed

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.   The applicant further complains under Article 3 (Art. 3) that his

detention pending deportation to Pakistan constituted inhuman and

degrading treatment.

     The case-law of the Convention organs establishes that ill-

treatment must attain a minimum level of severity if it is to fall

within the scope of Article 3 (Art. 3).  The assessment of that minimum

is relative and depends on all the circumstances of the case, such as

the duration of the treatment and its physical or mental effects (see

e.g. Eur. Court H.R., Ireland v. The United Kingdom judgment of

18 January 1978, Series A no. 25, p. 65, para. 162).

     The Commission notes that the applicant was refused asylum some

time in November 1994, that is within a month of his detention.  It is

unable from the information supplied to know exactly how long the

applicant was detained before his application for asylum was refused.

However, the Commission notes that the applicant has not alleged or

shown that he suffered inhuman or degrading treatment in the course of

detention, but claims only that detention pending the outcome of his

application for asylum was in itself inhuman and degrading.  The

Commission considers that without more, such treatment cannot be

regarded as reaching the threshold required to establish inhuman and

degrading treatment under Article 3 (Art. 3) of the Convention.

     It follows that this part of the complaint must be dismissed as

manifestly ill-founded in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

3.   The applicant complains that he was deprived of his liberty

contrary to Article 5 (Art. 5) of the Convention.  Article 5 (Art. 5)

provides so far as relevant.

     "1.   Everyone has the right to liberty and security of person.

     No one shall be deprived of his liberty save in the following

     cases and in accordance with a procedure prescribed by law:

           c.    the lawful arrest or detention of a person effected

     for the purpose of bringing him before the competent legal

     authority on reasonable suspicion of having committed an offence

     or when it is reasonably considered necessary to prevent his

     committing an offence or fleeing after having done so;

           f.    the lawful arrest or detention of a person to prevent

     his effecting an unauthorised entry into the country or of a

     person against whom action is being taken with a view to

     deportation or extradition.

     2. ...

     3.    Everyone arrested or detained in accordance with the

     provisions of paragraph 1 (c) of this Article shall be brought

     promptly before a judge or other officer authorised by law to

     exercise judicial power and shall be entitled to trial within a

     reasonable time or to release pending trial.  Release may be

     conditioned by guarantees to appear for trial.

     4.    Everyone who is deprived of his liberty by arrest or

     detention shall be entitled to take proceedings by which the

     lawfulness of his detention shall be decided speedily by a court

     and his release ordered if the detention is not lawful.

     5.    Everyone who has been the victim of arrest or detention in

     contravention of the provisions of this Article shall have an

     enforceable right to compensation."

     The Commission recalls that the exception provided by Article 5

para 1(f) (Art. 5-1-f) extends to cover circumstances in which an

individual, originally detained with a view to deportation, challenges

the decision to deport or claims asylum and is kept in detention

pending the outcome of that challenge or claim (see Eur. Court HR,

Chahal v. United Kingdom judgment of 15 November 1996, para. 112

(Reports 1996)).

     The Commission notes that the applicant was served with a

deportation notice on 27 October 1994, on which date he was detained.

The Commission therefore considers that, in principle, the applicant

has been lawfully detained under Article 5 para. 1 (f)

(Art. 5-1-f) of the Convention as a "person against whom action is

being taken with a view to deportation".

     The Commission recalls that detention pending deportation may be

rendered unlawful if the deportation proceedings are not conducted with

the requisite diligence (cf. Eur. Court H.R., Kolompar v. Belgium

judgment of 24 September 1992, Series A no. 235, p. 55, para. 36,

Application No. 7317/75, D.R. 6 p. 141).

     In that regard the Commission observes that the applicant has

been detained since 27 October 1994, when he was served with a notice

of intention to deport, making a total period of detention of over

20 months, with a period of liberty of 18 days between 18 January 1995

and 3 February 1995.

     In determining whether the total period of detention is such as

to render the detention unlawful within the meaning of Article 5

para. 1(f) (Art. 5-1-f) the Commission considers the following facts

to be relevant:

(a)  The applicant was informed of the decision of the Secretary of

     State to refuse him asylum some time in November 1994, that is

     within a month of his being detained.

(b)  The applicant commenced habeas corpus proceedings on

     1 November 1994 pursuant to which he was released on

     16 January 1995 for 18 days, having been successful at first

     instance but the decision having been overturned on appeal.  The

     proceedings were only finally determined on 4 July 1995 when the

     House of Lords refused leave to appeal. Under domestic law,

     deportation could not take place while habeas corpus proceedings

     were outstanding.

(c)  From 12 October 1995 until 13 May 1996 the applicant was detained

     pending the determination of his appeal against the decision of

     the Secretary of State to refuse him asylum ("the asylum

     proceedings").  The applicant could have commenced the asylum

     proceedings as early as November 1994, that is at the same time

     the habeas corpus proceedings were being pursued, but waited

     until October 1995 to do so.

     The Commission finds that a total period of 20 months elapsed

before the applicant was deported, for the greater part of which period

he was detained.  However, during eight of those months habeas corpus

proceedings were pending (1 November 1994 to 4 July 1995), during a

further seven months asylum proceedings were pending (12 October 1995

to 13 May 1996), and during eighteen days of that period the applicant

was at liberty.

      The Commission does not consider that the length of the two sets

of proceedings referred to above to have been unreasonably long or that

the State can be expected to have carried out the deportation of the

applicant while they were still pending.

     Having regard to these circumstances the Commission considers

that the overall length of proceedings was partly caused by the

applicant's own conduct of the matter and that there is no appearance

of any lack of diligence on the part of the authorities in handling the

applicant's case (see No. 8081/77, Dec. 12.12.77, D.R. 12 p. 207).

     It follows that this part of the application must be dismissed

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4.   As regards the applicant's complaint that he has been deprived

of his rights under Article 5 para. 3 (Art. 5-3) of the Convention, the

Commission recalls that these rights only relate to detention within

the meaning of Article 5 para. 1(c) (Art. 5-1-c) of the Convention.

The Commission notes that the applicant was detained for the purposes

of deportation and not with a view to bringing him before a competent

legal authority on reasonable suspicion of his having committed an

offence or to prevent his committing an offence or fleeing after having

done so.  The Commission does not therefore consider that the

applicant's detention fell within Article 5 para. 1(c) (Art. 5-1-c) and

Article 5 para. 3 (Art. 5-3) is therefore not applicable in the

circumstances of this case.

     This part of the complaint must therefore also be dismissed as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

5.   The applicant further complains under Article 5 para. 4

(Art. 5-4) that he was detained from 27 October 1994 until 16 January

1995 and that the lawfulness of his detention was not therefore

determined speedily within the meaning of Article 5 para. 4 (Art. 5-4).

     The Commission notes that the applicant commenced habeas corpus

proceedings on 1 November 1994 and was heard by the Court on

11 November 1994 when leave was granted for a full hearing of the writ.

The matter was adjourned to 24 November 1994 and then again to

15 December 1994 by agreement of the parties, on which date it was

consolidated with the applications of two other asylum seekers (see.

Nos. 28022/95, 28023/95).   A full hearing took place on

19 December 1994.  Judgment was given in favour of the applicant on

16 January 1995 when the applicant was released.  On 20 January 1995

the matter came before the Court of Appeal and on 3 February 1995 the

appeal of the Secretary of State was allowed pursuant to which the

applicant was again detained.

     The Commission considers that the initial delays in the hearing

of the habeas corpus application were caused by decisions of the

applicant or his representatives.  Further, the Commission observes

that the basis for the applicant's habeas corpus application was that

it was unlawful to detain asylum seekers pending the outcome of their

asylum applications.  The question raised complex issues of domestic

and international law, the outcome of which would have affected the

position of all asylum seekers held in detention, indeed, had it been

upheld, it would have led to the release of all asylum seekers detained

pending the outcome of their applications.  In the circumstances, the

Commission does not consider that it was unreasonable for the judge to

take time to determine the complex issues of law that had been raised.

Indeed, the fact that his decision was overturned by the Court of

Appeal supports the contention that the answer to the legal arguments

raised was not clear cut. The Commission therefore considers that the

delay in determining the lawfulness of the applicant's detention

cannot, in the very particular circumstances of this case, be

considered unreasonable.

     It follows that this part of the complaint must also therefore

be dismissed as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

6.   Insofar as the applicant invokes Article 5 para. 5 (Art. 5-5) in

respect of his complaints under Article 5 paras. 1 to 4

(Art. 5-1, 5-2, 5-3, 5-4), the Commission recalls that the right to

compensation under this provision presupposes that a violation of one

of the other paragraphs of Article 5 (Art. 5) has been established

either by a domestic organ or by the Convention organs (see eg. No.

7950/77, Dec. 4.3.80, D.R. 19 p. 213).  In the present case however,

the Commission has found above that the applicant's complaints disclose

no appearance of a violation of Article 5 paras. 1 to 4

(Art. 5-1, 5-2, 5-3, 5-4) of the Convention.

     It follows that these complaints must also therefore be dismissed

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

7.   The applicant further complains that he was detained pursuant to

a purely administrative act and was therefore deprived of all his

rights under Article 6 (Art. 6).  Article 6 (Art. 6), so far as

relevant, provides as follows.

     "1.   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 established by law."

     The Commission recalls its previous case law which establishes

that Article 6 (Art. 6) is inapplicable to deportation proceedings

since a decision as to whether an alien should be allowed to stay in

a country is a discretionary act of a public authority and therefore

of an administrative nature.  The exercise of the discretionary powers

of the immigration authorities or, as in this case, the Secretary of

State, does not involve the determination of civil rights or

obligations or of a criminal charge within the meaning of Article 6

(Art. 6) of the Convention (see No. 8118/77, Dec. 19.3.81, D.R. 25 p.

105, No. 9990/82, Dec. 15.5.84, D.R. 39 p. 119).

     It follows that Article 6 (Art. 6) is not applicable in the

present case and this part of the application must be dismissed as

incompatible ratione materiae with the provisions of the Convention

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                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber