AS TO THE ADMISSIBILITY OF

                      Application No. 27724/95

                      by Kulvinder Singh DHALIWAL

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 4 September 1996, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           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 6 March 1995 by

Kulvinder Singh DHALIWAL against the United Kingdom and registered on

26 June 1995 under file No. 27724/95;

     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 an Indian national, born in India in 1964 and

presently detained in H.M. Prison Ashwell, Leicestershire.  He is

represented before the Commission by Mr. G.S. Kang, a solicitor.  The

facts as submitted by the applicant may be summarised as follows.

     The applicant's father died in 1969. In the same year his mother

left the applicant and his two brothers in the care of his paternal

grandparents in India. In 1976 the applicant's uncle took

responsibility for the children and brought them to the United Kingdom

where they went to live with his family.

     After leaving school at 16, the applicant attended technical

college and then started work as a general labourer at a foundry.  He

was employed for one year before the foundry was closed in 1983 when

he was made redundant. In the same year his paternal grandfather died

in India.  The applicant suffered severe depression relating to the

events in his family and his lack of employment and in March 1983 he

attempted suicide.  He made a further suicide attempt a few months

later and was then kept in hospital for a period of six weeks. On

release from hospital he went to live in an area he did not know,

relations between him and his uncle having become strained.

     On 20 January 1984, the applicant was convicted of murder by

Stafford Crown Court and sentenced to life imprisonment.  The applicant

pleaded not guilty.  The trial judge recommended a tariff of 12 years

with which the Lord Chief Justice agreed.  The Secretary of State

decided that the tariff should be 15 years. No recommendation for

deportation was made by the Court. The applicant only became aware of

these tariff periods in February 1994 after the change in policy

resulting from the judgment in the House of Lords in R v Secretary of

State for the Home Department ex parte Doody ([1993] 3 All ER 92).

     On 6 June 1990 the Secretary of State took a decision to make a

deportation order against the applicant pursuant to section 3(5)(b) of

the Immigration Act and to make directions for his removal to India.

The Home Office Explanatory Statement of 27 September 1990 set out the

applicant's history and details of the crime. It concluded:

     "The [applicant] is 25 years old and has spent the latter half

     of his life in the United Kingdom.  The only relatives the

     [applicant] has in the United Kingdom are his 2 brothers and

     their families and his uncle with whom he is not on good terms.

     However, in India he has a paternal grandmother, with whom the

     United Kingdom  family maintain contact and 2 married aunts.  The

     [applicant] himself is unattached.

     The [applicant] was specifically asked by the Immigration Officer

     at an interview on 1 March 1990 to put forward any compassionate

     factors he wished to be considered.  He said that he was young

     when he committed the crime and had never been in trouble before.

     He was in good health.  He would have nowhere to live in India.

     There appeared to be no reason to believe however that the

     [applicant] could not adapt to life in India, where he had a

     number of relatives, upon his release.

     In view of the extreme seriousness of the offence of which the

     [applicant] had been convicted, and having regard to all the

     relevant circumstances, including those set down in paragraph 164

     of HC 388, the Secretary of State did not consider that

     circumstances of a sufficiently compassionate nature prevailed

     in the [applicant's] case.  He therefore decided it would be

     conducive in the public good to deport the [applicant]

     ..........and to give directions for his removal to India."

     On 8 November 1991, the applicant's appeal from that decision was

heard by the Immigration Appeal Tribunal. The Tribunal considered inter

alia the Social Enquiry Report of the applicant's probation officer who

had been involved in the applicant's case since his trial and heard

evidence from her. She considered that the applicant should be

permitted to stay in the United Kingdom for the following reasons:

a)   at the time of the murder the applicant had just been discharged

     from hospital and was vulnerable;

b)   he was now significantly older and his emotions appeared stable,

c)   he had made good use of his time in prison,

d)   he had lived in the United Kingdom, initially with his aunt and

     uncle and more recently in prisons, since the age of 12 and had

     adopted the way of life in the United Kingdom and had very little

     knowledge of an Indian lifestyle other than childhood memories,

e)   in view of his history of suicide attempts, deportation could

     seriously undermine his progress and leave him in a very

     vulnerable position,

f)   he had been reunited with the members of his extended family in

     the United Kingdom and would be able to work with his brothers

     in their business in Scotland,

g)   on release he would be subject to life licence and there would

     be no difficulties enforcing the requirements of the licence.

     She and the Governor of the prison both expressed the view that

the chance of the applicant re-offending was remote and that the

applicant would not be a risk in the future. Further, she specifically

disagreed with the emphasis in the Home Office Explanatory Statement

placed on the number of relatives the applicant had in India.  She

stated that apart from his aged grandmother there were only two aunts

who were both married and with whom it would not be appropriate for him

to go and live since, according to Sikh community rules, they had

become part of their husbands' families.

     On 31 January 1992, his appeal was rejected.  The Tribunal found

that when the public interest was balanced against the compassionate

circumstances of the case, deportation was the right course on the

merits.

     An application for judicial review was lodged in August 1992 and

leave was granted in November 1992. On 13 April 1994 the application

was refused.  The Court found that the Immigration Tribunal's findings

were not inappropriate or inadequately expressed, that it had come to

the conclusion that, in view of the crime that the applicant had

committed, his deportation was appropriate and that its reasoning

process was not flawed.

     On 1 March 1995 the Court of Appeal refused leave to appeal.

Relevant domestic law

     Section 3(5) of the Immigration Act 1971 provides

     "(b) 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."

     An appeal from that decision can be brought before the

Immigration Appeal Tribunal under section 15(7)(a) of the Immigration

Act 1971 and must be determined in accordance with section

19(1)(a)(ii).  That provision provides that the appeal is to be allowed

where it is found that:

     "...the decision or action involved the exercise of a discretion

     by the Secretary of State [and]....that the discretion should

     have been exercised differently."

     The Immigration Appeal Tribunal considered the appeal in the

light of paragraphs 167 and 164 of HC 251 (1990) which provide as

follows:

     "167.  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 164.

     164.  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 connection 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 representation received on the person's behalf."

COMPLAINTS

1.   The applicant complains about the decision of the Secretary of

State to increase his tariff period by three years, which he only

became aware of in February 1994. He claims that it was arbitrary

and/or perverse, in that the Secretary of State increased the tariff

without the benefit of the relevant psychiatric and medical evidence

and that this rendered his detention unlawful under Article 5

para. 1(a) of the Convention.

     The applicant further claims that he is detained for the purposes

of deportation as laid down in Article 5(1)(f) and therefore has a

right under Article 5 para. 4 of the Convention to have the lawfulness

of his detention determined by a court.

2.   The applicant complains that his deportation would constitute a

violation of his right to respect for his family and private life as

guaranteed by Article 8 of the Convention.  He claims that he has no

immediate relations to turn to in India whereas he has two brothers and

an uncle in the United Kingdom.

3.   Finally the applicant complains that he is being deprived of the

full benefit of a vocational training whilst in prison because the

prison authorities feel that such training would be of no use to him

in India. He invokes Article 2 of Protocol No. 1 of the Convention.

THE LAW

1.   The applicant complains about the decision of the Secretary of

State to increase the tariff period that he has to serve before he can

be released from 12 years to 15 years.  He claims that his detention

cannot be lawful within the meaning of Article 5 para. 1(a)

(Art. 5-1-a) since the tariff period was increased arbitrarily.  He

further complains that he is now detained under Article 5(1)(f)

(Art. 5-1-f) and is therefore entitled to certain guarantees, such as

the right to a review by a court.

     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:

           a.    the lawful detention of a person after conviction by

     a competent court;

           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.

     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."

     The Commission recalls that under English law, in cases of

mandatory life-sentences, the release of the prisoner is entirely a

matter within the discretion of the Secretary of State who is not bound

by the judicial recommendation as to the length of the tariff period.

The guarantee of Article 5 para. 4 (Art. 5-4) of the Convention is

considered to be satisfied by the original trial and appeal proceedings

and confers no additional right to challenge the lawfulness of

continuing detention (see Eur. Court H.R. Wynne judgment of 18 July

1994, Series A no. 294A, pp. 14-15 paras. 35-36).

     The Commission recalls that the applicant was convicted of murder

and sentenced to mandatory life imprisonment and that he is still

serving that sentence.  Accordingly, there are no new circumstances

that entitle the applicant to a review of his continued detention under

the original mandatory life sentence.

     In view of the above, the decision of the Secretary of State to

increase the tariff period cannot render the applicant's continued

detention under the original mandatory life sentence unlawful.

     Insofar as the applicant claims that he is now being detained for

the purpose of deportation and not pursuant to his conviction for

murder, the Commission does not consider this to accord with the facts

as submitted by the applicant.  The applicant was convicted in 1984 and

sentenced to life imprisonment, the judge set a tariff period of 12

years and the Secretary of State increased it to 15 years.  The

earliest date for discharge would therefore be 1999, (or 1998 as the

applicant has himself in fact submitted).  The Commission concludes

that the applicant is still being detained pursuant to his conviction

for murder, and that the detention is therefore lawful within the

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

     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 complains that his expulsion from the United

Kingdom would constitute a violation of his right to respect for his

private and family life guaranteed by Article 8 (Art. 8) of the

Convention.

     Article 8 (Art. 8) of the Convention provides:

     "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."

     The Commission recalls that while Article 8 (Art. 8) of the

Convention does not in itself guarantee a right to enter or remain in

a particular country, issues may arise where a person is excluded or

removed from a country where his close relatives reside or have the

right to reside (see Eur. Court H.R. Moustaquim judgment of 18 February

1991, Series A no. 193, p. 18, para. 36, No. 9478/81, Dec. 8.12.81,

D.R. 27, p. 243, No. 27275/95 Dec. 28.6.95, (unpublished)).

     In view of the approach taken below, the Commission does not find

it necessary to determine whether there has in fact been an

interference in the applicant's private or family life and for the

purposes of this decision will assume that to be the case.

     The Commission recalls that an interference in an applicant's

right to respect for his private or family life can be justified if it

is in accordance with the law, pursues a legitimate aim, is necessary

in a democratic society and proportionate.

     The deportation order was made pursuant to section 3(5) of the

Immigration Act 1971.  The legality of the expulsion has been reviewed

by the Immigration Appeal Tribunal and the High Court in Judicial

Review proceedings.  There is no indication, nor is it alleged, that

the deportation order is not in accordance with the law.

     The Commission considers that the expulsion pursued the

legitimate aim of public safety, the prevention of disorder or crime

or the protection of the rights and freedoms of others, within the

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

     The Commission considers that the nature of the offence committed

and the severity of the penalty imposed are essential elements to be

taken into account when determining whether the decision to expel the

applicant was proportionate (see Bouchelkia v. France, Comm. Report

6.9.95, para. 52).

     The Commission recalls that the applicant was convicted of murder

and that the Secretary of State gave significant weight to the severity

of the crime when deciding whether to deport him. The Immigration

Appeal Tribunal and the High Court considered that the Secretary of

State had been justified in giving such weight to the severity of the

crime and did not consider that compassionate circumstances raised by

the applicant outweighed that factor. The Commission further notes that

the penalty imposed for the crime was mandatory life imprisonment and

that the tariff period was first set at 12 years and then increased by

the Secretary of State to 15 years, an indication that there were few,

if any, mitigating factors in the applicant's favour as regards the

circumstances of the crime.

     The Commission further recalls that the applicant only arrived

in the United Kingdom from India at the age of 12 years and appears to

still be able to speak the language of his childhood.  Further, while

he has two brothers in the United Kingdom, he has an aged grandmother

and two aunts in India. He is single and has no children.

     Taking into account the margin of appreciation accorded to States

in the area of immigration (see Berrehab judgment of 21 June 1988.,

Series A no. 138, p. 15, para. 28.) the Commission considers that, in

view of the extreme seriousness of the crime and the weakness of his

family ties in the United Kingdom, the deportation of the applicant can

be considered as a proportionate measure and so necessary in a

democratic society for the prevention of disorder or crime and public

safety (see Chorfi v. Belgium, Comm. Report 21.12.95, para 49,

Bouchelkia v. France, Comm. Report 6.9.95, para. 52).

     This part of the application must therefore also be rejected as

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

(Art. 27-2) of the Convention.

3. The applicant complains that he is being deprived of a right to

vocational training whilst in prison and invokes Article 2 of

Protocol No, 1 (P1-2). That Article provides:

     "No person shall be denied the right to education.  In the

     exercise of any functions which it assumes in relation to

     education and to teaching, the State shall respect the right of

     parents to ensure such education and teaching in conformity with

     their own religious and philosophical convictions."

     The Commission notes that the applicant has merely alleged that

he is being deprived of the full benefit of a vocational training

whilst in prison because the prison authorities feel that such training

would be of no use to him in India. No details of what courses have

been applied for or which have been refused have been given. Even

assuming therefore that Article 2 of Protocol No. 1 (P1-2) could apply

to education in prisons and that there are no domestic remedies to

exhaust, the complaint is entirely unsubstantiated.

     It follows that this part of the complaint must also be rejected

as 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                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber