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AS TO THE ADMISSIBILITY OF

Application No. 16152/90

by Ahmed LAMGUINDAZ

against the United Kingdom

The European Commission of Human Rights sitting in private on

17 February 1992, the following members being present:

MM.C. A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

Mr.F. MARTINEZ

Mrs.J. LIDDY

MM.A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. J. RAYMOND, Deputy Secretary to the Commission

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 February 1990

by Ahmed LAMGUINDAZ against the United Kingdom and registered on

12 February 1990 under file No. 16152/90;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the written observations submitted by the

Government on 30 May 1990 and the observations in reply submitted by

the applicant on 15 September 1990;

Having regard to the observations of the parties at the oral

hearing on 17 February 1992;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Moroccan citizen born in 1967. He is

represented before the Commission by Mr. R. Poynter, solicitor of

Messrs. Sinclair, Taylor, and Martin, London.

The facts of the case may be summarised as follows.

The applicant probably arrived in the United Kingdom in or about

1974 to join his father. His mother and three brothers and sisters also

moved to the United Kingdom. Two further children were born. The

applicant's parents were granted indefinite leave to remain in the

United Kingdom in 1974. The applicant was not brought up speaking

Arabic at home, had difficulties understanding that language and could

not read or write it.

The applicant spent a period of up to six months in Morocco in

1981 on holiday with his family.

The applicant has a lengthy criminal record, reaching back to

1981 and comprising largely minor offences of dishonesty, but also

certain offences involving violence. On 17 May 1985 the applicant was

convicted of wounding. On 19 February 1986, referring to the

conviction for wounding, the Secretary of State decided to make a

deportation order against the applicant on the ground that such an

order was "conducive to the public good".

The applicant appealed against the decision to make a deportation

order to the Immigration Appeal Tribunal, on the ground that all his

family lived in the United Kingdom, and that he had no relatives in

Morocco. Moreover, he spoke no Arabic, would not be able to live in

Morocco and could not find any employment. In its decision of 9 June

1986 (notified on 28 July 1986) the Tribunal accepted that the

applicant had difficulty in making himself understood in Arabic, and

realised that he would not have an easy task in making his way in

Morocco. It also noted that the applicant had expressed regret at his

part in the offence, and that he was prepared to change his life style.

However, the Tribunal recalled that the applicant had failed to take

any notice of a Home Office warning in 1983 that he could be deported

if he continued his criminal activities, and doubted whether he would,

in fact, refrain from his criminal course. It found, when balancing

the public interest against the compassionate circumstances of the

case, that deportation was the right course on the merits. The appeal

was dismissed.

A deportation order was signed on 22 October 1986.

The applicant's application for leave to apply for judicial

review of the Immigration Appeal Tribunal's decision was dismissed.

In July 1987, prior to notification of the deportation order, the

applicant was arrested in connection with the supply of drugs. While

on bail in this connection, the applicant was taken by his father to

Morocco in February 1988. The applicant's father took the applicant's

passport and abandoned him there in an attempt to keep the applicant

out of trouble with the police. The applicant's sister eventually

found him living in Morocco in squalid circumstances and she took him

back to England in September 1989. The applicant was arrested in

November 1989 following his voluntary surrender to the police and held

in custody until 7 February 1990, when he was convicted of the charge

of supplying cannabis in respect of which he had been arrested in

July 1987. He was sentenced to three months' imprisonment suspended

for 2 years. He was immediately re-arrested at the Court and detained

at Chelsea Police Station pending the arrival of the immigration

officers to execute the deportation order. The deportation order was

served on 8 February 1990 and the applicant was deported on 12 May 1990

to Tangier.

He has since remained in Morocco and has received financial

support from his mother.

COMPLAINTS

The applicant alleges violations of Articles 8 and 14 of the

Convention.

The applicant submits that his removal severs a close family

life, and contests that this severance can be justified as a

proportionate response necessary in the interests of the prevention of

crime. He submits that the penalty of removal would not be available

in the case of a petty or small time criminal who was a British

subject, and it cannot therefore be said to be necessary. He underlines

that there is no question of an undesirable alien being removed from

a host country, that the case involves an immigrant who has been

brought up and educated entirely in the United Kingdom, who is now to

be removed from his home country to a place where he has no family and

away from the only place where he does have family. The applicant

submits that, in other words, the penalty imposed is banishment.

The applicant considers that, as his whole family is now based

in the United Kingdom and he himself was brought up there, the fact

that he is Moroccan presents an arbitrary and fortuitous chance to

remove him which cannot be objectively justified, and which amounts to

discrimination on the ground of nationality.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 February 1990 and registered

on 12 February 1990.

On 15 February 1990 the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

The Government's observations were submitted on 30 May 1990 and

the applicant's observations in reply were submitted on 15 September

1990 after one extension in the time-limit.

On 7 September 1990 the Commission decided to grant legal aid to

the applicant.

On 5 September 1991 the Commission decided to invite the parties

to a hearing on the admissibility and merits of the application.

The hearing was held on 17 February 1992, when the parties were

represented as follows:

- for the applicant:

Mr. Richard DRABBLE, Counsel

Mr. Richard POYNTER, Solicitor

The applicant, Mr. Ahmed LAMGUINDAZ, attended the hearing, with

Mrs. K. Lamguindaz and Mr. Rachid Lamguindaz

- for the respondent Government:

Mrs. Audrey GLOVER, Agent

Mr. David PANNICK, Counsel

Ms. S. WESTON, Adviser, Home Office

Mrs. G. GRIFFITH, Adviser, Home Office.

THE LAW

The applicant complains that the deportation constitutes an

interference with his right to respect for his family and private life

contrary to Article 8 (Art. 8) of the Convention and that it also

discloses discrimination on the ground of nationality contrary to

Article 14 (Art. 14) 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."

Article 14 (Art. 14) of the Convention provides:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth or

other status."

The applicant submits that the deportation order is a penalty

which is a disproportionately harsh response to his criminal record,

in respect of which he points out that his family is entirely based in

the United Kingdom where he was brought up and that he had difficulties

in understanding and communicating in Arabic. He submits that the

measure was not justified by a "pressing social need", and that the

penalties of the criminal courts were available in the event of his re-

offending.

The Government argue that the deportation did not substantially

interfere with the applicant's private or family life, in particular,

in view of the applicant's previous lengthy stay in Morocco from 1988

to 1989. They submit that the deportation pursued the legitimate aim

of the prevention of crime and was not disproportionate, having regard

to the State's margin of appreciation, the applicant being a habitual

offender and the offences concerning wounding and drugs being

particularly serious.

Having regard to the observations of the parties and to the

Court's decision in Moustaquim (Eur. Court H.R., Moustaquim judgment

of 18 February 1991, Series A no. 193) the Commission considers that

the application raises serious questions of fact and law which are of

such complexity that their determination should depend on an

examination of the merits. The application cannot therefore be regarded

as being manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention and no other grounds for

declaring the application inadmissible have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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LAMGUINDAZ v. THE UNITED KINGDOM

LAMGUINDAZ v. THE UNITED KINGDOM

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