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AS TO THE ADMISSIBILITY OF

Application No. 22436/93

by John Kwasi MINTA

against the United Kingdom

The European Commission of Human Rights sitting in private on

1 December 1993, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

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 24 May 1993 by

John Kwasi MINTA against the United Kingdom and registered on 10 August

1993 under file No. 22436/93;

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 British citizen born in 1963 and resident in

London. He is represented before the Commission by Mr. Philip Engelman,

a barrister practising in London. The facts as submitted by the

applicant may be summarised as follows.

The applicant claims that he was born in England on 11 October

1963. His full name was John Minta-Akuamoah, and his father's name John

Kwasi Minta-Akuamoah. There is a birth certificate to this effect. At

the age of 3, he went to Ghana with his parents.

At a date between 1971 and 1978, the applicant returned to the

United Kingdom with his father. When his father returned to Ghana, the

applicant was left with a guardian. In 1982, the guardian also returned

to Ghana.

On 31 August 1988, the applicant obtained a British Visitor's

passport (a BVP) with the intention of spending two weeks on holiday

on the continent. The passport issued by a Post Office was in the

shortened version of his name which he habitually used; namely, John

Kwasi Minta.

On 29 September 1988, the applicant arrived in Dover from

Zeebrugge. When he presented his passport at immigration control, the

immigration officer was not immediately satisfied that the applicant

was the rightful holder of the passport and required him to submit to

further examination. It appears that when asked to confirm his name the

applicant gave the full version of his name - John Kwasi Minta-Akuamoah

- which did not appear on the passport. He was detained until 6 October

pending further enquiries. He produced in support of his claimed

identity his birth certificate, a provisional driving licence and a

bank card. He gave the names of two persons to vouch for him, a lady

who had known him for some years and his employer who had known him for

six months.

On 6 October 1988, another immigration officer decided that the

applicant required leave to enter and that he did not qualify for

admission under the Immigration Rules.

The applicant appealed to an Adjudicator who, on 28 September

1989, noted that there was inconsistency in his account of when he had

returned to the United Kingdom from Ghana and that there was no proof

of his presence before 1987. There was no national insurance or

benefits record. He held however that a passport that was not a

forgery, upon which no unauthorised alterations had been made and which

bore a photograph must be considered as constituting satisfactory

proof of identity for the purposes of obtaining leave to enter. He did

not consider that the endorsement of a BVP to the effect that "It will

not however be accepted as definite evidence of National Status" was

relevant in this context. The Adjudicator concluded that the applicant

should therefore have been allowed to enter and allowed his appeal.

The Secretary of State appealed to the Immigration Appeal

Tribunal. The Tribunal held on 25 May 1990 that neither the

Adjudicator or itself had jurisdiction to examine the matter pursuant

to section 13 (3) of the Immigration act 1971 as amended which provides

that a person shall not be entitled to appeal against a decision that

he requires leave to enter unless he holds a United Kingdom passport

describing him, inter alia, as a British citizen. Since a BVP does not

include a description of the holder's nationality status, it held that

the applicant had no possibility of appealing to the Adjudicator, whose

determination was a nullity. The applicant would have had instead the

right of appeal from overseas.

The applicant applied for judicial review of the Secretary of

State's refusal and the Immigration Appeal Tribunal's refusal of

jurisdiction. His application was refused by the High Court on 3 June

1991. The High Court judge found that on construction of the relevant

legislation all persons claiming to have the right of abode in the

United Kingdom must, when on seeking entry to the United Kingdom a

question as to their citizenship has arisen, prove that right by the

stated means, namely, a passport describing him or her as a British

citizen. He commented that:

... accepts that

British citizens -particularly those from ethnic minorities

- would not be well advised to travel on BVPs, for obvious

reasons....

"I have to say that this is a conclusion which I reach

without enthusiasm. The consequences... are indeed

unpalatable. It is to my mind a very unhappy result of this

legislation that British citizens entitled to enter and

leave the United Kingdom at will should, for lack of proof

by the specified means, be liable to be turned away on

returning from a daytrip to France in the course of which

they have mislaid their passports and compelled to set

about obtaining a replacement while remaining in France. It

is to be hoped that in the ordinary way persons who for one

reason or another are not in a position to furnish the

specified means of proof will be granted limited leave to

enter in order that they may from inside the United

Kingdom, either obtain the requisite documents or furnish

proof by other means...".

He concluded that no good ground had been shown for challenging

the decision of the immigration officer or that of the Immigration

Appeal Tribunal and that the application accordingly failed.

The applicant's appeal to the Court of Appeal was dismissed on

8 April 1992. The Court accepted the less rigorous construction put

forward by the counsel for the Secretary of State that the legislation

had the effect that an immigration officer might accept other evidence

than a full passport as to the British citizenship of an entrant but

that he was not required to do so. Only if an entrant provided a full

United Kingdom passport describing him as a British citizen would an

immigration officer be bound to accept it as proof.

Leave to appeal to the House of Lords was refused on 14 October

1992. From 22 December 1988, the applicant was released on bail.

Following the Court of Appeal decision, he left his address in order

to avoid being deported.

On 24 May 1993, the applicant's legal representative introduced

an application before the Commission. By letter dated 21 June 1993, the

applicant's representative explained that the application could not

have been submitted earlier since the applicant had remained

incommunicado through an understandable fear of being apprehended and

deported. He did not renew contact with his solicitors as a result

until March 1993.

Relevant domestic law and practice

Section 13 (3) of the Immigration Act 1971 as amended provides

as relevant:

"(1) Subject to the provision of this Part of this Act, a person

who is refused leave to enter the United Kingdom under this Act

may appeal to an adjudicator against the decision that he

requires leave or against the refusal...

(3) A person...shall not be entitled to appeal on the ground that

he has a right of abode in the United Kingdom against a decision

that he requires leave to enter unless-

(a) he claims to be a British citizen and produces... a

United Kingdom passport describing him as such a citizen or

a United Kingdom passport describing him as a citizen of

the United Kingdom and Colonies having a right of abode in

the United Kingdom;..."

COMPLAINTS

The applicant complains that the refusal of entry constituted

discrimination on the grounds of race and that this amounts to

degrading treatment within the meaning of Article 3 of the Convention.

He submits that the refusal was based on the assumption that the he was

not a British citizen despite his BVP and that this assumption would

not have been made if he was not black.

The applicant complains under Article 5 para. 3 that he had no

opportunity of challenging the impugned decisions by a trial of the

factual issues. He invokes Article 5 para. 4 in that the Immigration

Appeal Tribunal refused to accept jurisdiction in his case. The

applicant complains under Article 6 in respect of the same matters.

The applicant further complains that he has no effective remedy

in respect of his complaints as required by Article 13 of the

Convention and that he has been discriminated against contrary to

Article 14 of the Convention.

THE LAW

The applicant complains of the refusal of entry to the United

Kingdom, invoking Articles 3, 5 paras. 3 and 4, 6, 13 and 14

(Art. 3, 5-3, 5-4, 6, 13, 14) of the Convention.

The Commission however is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of these provisions, as Article 26 (Art. 26) of the

Convention provides that the Commission "may only deal with the

matter...within a period of six months from the date on which the final

decision was taken".

In the present case, the decision of the House of Lords, which

was the final decision regarding the subject of this particular

application was given on 14 October 1992, whereas the application was

submitted to the Commission on 24 May 1993, that is, more than six

months after the date of this decision. While the applicant has not yet

been deported, the Commission does not consider that this can be

construed as a continuing situation to which the six month rule is not

applicable.

Furthermore, an examination of the case does not disclose the

existence of any special circumstances which might have interrupted or

suspended the running of six month period. The fact that the applicant

did not keep in contact with his legal representatives after he left

his address to avoid possible deportation does not constitute a special

circumstance, there being no indication that his situation rendered

communication with his legal representatives impossible. The Commission

notes that the applicant did in fact contact his solicitor in March

1993 within six months of the House of Lords decision but that there

was a further delay of two months until 24 May 1993 before the

application was introduced.

It follows that the application has been introduced out of time

and must be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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MINTA v. THE UNITED KINGDOM

MINTA v. THE UNITED KINGDOM

LEXI