Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16009/90

by Aziz PATEL

against the United Kingdom

The European Commission of Human Rights sitting in private on

6 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, 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 9 November 1989

by Aziz PATEL against the United Kingdom and registered on 18 January

1990 under file No. 16009/90;

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 citizen of India, born in 1961 and detained

in H.M. Prison Ashwell, Oakham, Leicestershire. He is represented

before the Commission by Peter Ashman, barrister and legal officer of

JUSTICE, the British section of the International Commission of

Jurists.

The facts of the present case, as submitted by the applicant

and which may be deduced from documents submitted with the application,

may be summarised as follows:

The applicant was born in India. His father died there in

1968. His brother, Ahmed Patel, went to settle in England. In 1973,

the applicant, his mother, Mrs. Fatima Patel, and his second brother,

Sulamen Patel, went to settle in the United Kingdom. The applicant

first arrived in England on 13 July 1973, aged 12 years. He was

granted indefinite leave to enter as the dependent of his brother,

Ahmed Patel. The applicant has been settled and ordinarily resident

in the United Kingdom since that date.

On 14 February 1985, the applicant was arrested at Heathrow

Airport, London. On 9 April 1986, he was convicted, on the basis of a

jury's majority verdict of 10 - 2, by a Crown Court of "being

knowingly concerned in the fraudulent evasion of the prohibition in

force (under section 3(1) Misuse of Drugs Act 1971) on the importation

of a class A controlled drug (diamorphine)", contrary to section

170(2)(b) of the Customs and Excise Management Act 1979. The

applicant was convicted with three co-defendants (not related to him):

Ahmed Moosa Patel, Umarji Vali Patel and Imtiaz Vali. He was

sentenced to 10 years' imprisonment, as were the other defendants.

His application for leave to appeal against conviction and sentence

was dismissed by the Court of Appeal on 12 May 1987. The applicant

has no previous convictions.

On 27 August 1988, the Home Secretary made a deportation order

against the applicant under section 3(5)(b) of the Immigration Act

1971, and gave directions for his removal to India. Under this

section a person who is not a British citizen is liable to

deportation from the United Kingdom "if the Secretary of State deems

his deportation to be conducive to the public good." The applicant

appealed against this order to the Immigration Appeal Tribunal, which

dismissed his appeal on 17 May 1989.

The Tribunal considered the applicant's case in the light of

paragraphs 159 and 156 of the Statement of Changes in Immigration

Rules HC 169 of 1983, which provide as follows:

"159. 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 156.

156. 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 connections 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 representations received on the person's behalf.

In certain circumstances, particularly in the case of young

or first offenders, supervised departure, with a prohibition

on re-entry, may be arranged as an alternative to the

deportation recommended by the court provided that the

person is willing to leave the country."

The Tribunal held as follows:

"The appellant was born in 1961. He has settled in this

country since 1973. He is a member of a closely knit

family. His mother and two brothers and their families

are also settled here. His mother, who is blind, regards

the appellant as her favourite child. Her feelings are

reciprocated by the appellant.

The appellant's fiancée, Abeda, will marry the appellant

as soon as her (present marriage is ended and a) decree

absolute is obtained. She and her 4 year old child are

deeply attached to the appellant and here again, their

feelings are reciprocated. It would cause deep distress

on all sides if the appellant were to be deported.

The appellant has a number of skills which include the

cutting of leather and sheepskin, market trading and car

spraying. We have no doubt that he would easily find

employment in this country and that his fiancée, Ms Patel,

would accommodate him.

The appellant has been convicted of a most serious drugs

offence. We note that he was not recommended for

deportation by a Court. Ms Patel assured us that the

appellant would not commit any criminal offence in the

future. Having observed the appellant in the witness

stand, we wish that we could have made an equally

confident prediction.

We have assumed that the appellant's family in Bombay would

have nothing to do with him because of the stigma of a drugs

conviction. We accept that in these circumstances, the

appellant would not have an easy task to establish himself

in India, particularly bearing in mind that he would have a

partial language handicap. Nevertheless, the appellant is

in the prime of his life and we feel sure that he would use

one of his many skills to make his way.

We have read the Probation Officer's report and note its

favourable view of the appellant.

In our judgment, when the public interest is balanced against

the compassionate circumstances of the case, deportation is

the right course on the merits.

The appeal is dismissed."

The Secretary of State was asked to reconsider his decision by

the applicant's present lawyer on 21 June 1989, but this was rejected

by letter from the Home Office dated 3 October 1989. Under the order,

the applicant will be deported to India at the end of his sentence.

The applicant stresses that he lives within a close family

environment and has done so since arriving in the United Kingdom. His

brother, Ahmed Patel, and his fiancée, Ameda Patel, have British

nationality. His mother, second brother and fiancée are settled in

the United Kingdom. His mother, who is blind and in ill-health, lived

with the applicant at the time of his arrest. He enjoyed a stable and

established family relationship with Ameda Patel who will marry him

when her divorce is finalised, and with her four year old son, whom he

treats as his own. He had known his fiancée since childhood. She had

been forced into an arranged marriage in 1983 which ended in

separation after only 6 months. Thereafter she lived with the

applicant. The three members of his immediate family are greatly

attached to the applicant, as was made clear at the hearing before the

Immigration Appeal Tribunal. Since that hearing, the applicant's

fiancée has had a nervous breakdown. It was intended that the

applicant would live with his fiancée, her son and his mother at his

fiancée's house in Leicester when he finished his sentence. At

present, they live with the applicant's brother's wife.

The applicant has made two applications for British

nationality, through the Community Services in 1981 and again from

prison in 1987. In 1981 he did not proceed further only because of

the expense involved, which he was told was £250, a sum which he did

not then possess. In his 1987 application he was told that the cost

was £60, but his application was rejected. As the applicant has been

settled and ordinarily resident in the United Kingdom since 13 July

1973, he has been eligible to apply for naturalisation under section

6(1) and schedule 1 of the British Nationality Act 1981 since that Act

was passed. However, with a conviction for a serious offence he now

fails to fulfil one of the conditions - "being of good character".

Had he arrived in the United Kingdom only 8 months earlier, the

applicant would be exempt from deportation under section 3(5)(b) by

virtue of section 7(1) of the Immigration Act.

The only family of the applicant in India is a sister and her

family who live in Bombay. He last saw her in 1984, and he would not

be well received there. The applicant speaks Gujerati, one of the

local languages, but cannot read or write it. He cannot speak, read

or write Murati, the other language used in Bombay.

The applicant's co-defendants were all convicted by unanimous

verdicts and received the same 10 year sentence as himself. Ahmed

Moosa Patel has British nationality. However, Umarji Vali Patel and

Imtiaz Vali both have Indian nationality and, so far as the applicant

is aware, neither has been made the subject of a deportation order.

The applicant's elder brother was sentenced to 11 years' imprisonment

for importation of a prohibited drug in late 1988. He cannot be

deported as he holds British nationality.

COMPLAINTS

1. Article 8

The applicant contends that his established family life with

his fiancée, Ameda Patel, her young son and his dependent mother,

constitutes "family life" within the meaning of Article 8. All

parties are settled and ordinarily resident in the United Kingdom.

There are immense practical obstacles to the relocation of the

applicant's family to India, with its consequent uprooting,

particularly for a small child and a blind, sick elderly woman. The

applicant contends that his deportation to India constitutes an

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

and will have severe implications for the whole family. Although the

interference is in accordance with the law, it does not fall within

any of the other exceptions permitted under Article 8 para. 2. The

seriousness of the interference is not proportionate to the aim

pursued and consequently there is no objective and reasonable

justification for the order. In particular, it should be noted that

the sentencing court did not recommend deportation, as it could have

done under section 6 of the Immigration Act 1971. The applicant

points out that he was convicted on a majority verdict, continues to

maintain his innocence, has no previous convictions and is presently a

category D prisoner, the lowest security rating.

2. Article 14

The applicant submits that the Home Secretary's decision

amounts to an additional and drastic punitive action, only possible

because of the applicant's financial inability to afford

naturalisation in 1981. The order to deport amounts to a

discriminatory difference in treatment between the applicant and his

co-defendants. It also amounts to a discriminatory difference in

treatment between the applicant and his brother, who is imprisoned for

a similar offence, but who cannot be deported because he possesses

British nationality. It is submitted that the order to deport the

applicant violates Article 14 in conjunction with Article 8 as his

private and family life has been interfered with in a manner not

possible or undertaken in the cases of his co-defendants or his

brother, and that there is no objective and reasonable justification

for the order.

THE LAW

1. The applicant has complained that the decision to deport him

violates his rights under Article 8 (Art. 8) of the Convention, the

relevant part of which reads 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 ... 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 finds that the decision to deport the applicant

constitutes an interference with his right to respect for family life,

within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.

The key issue in the case is whether that interference is justified

for one or more of the reasons recognised in the second paragraph of

Article 8 (Art. 8).

The Commission observes that the applicant has been convicted

and sentenced for the very serious offence of heroin smuggling. He

was thus involved in an act which would have led to the destruction of

the health and perhaps lives of many other people. He and his family

were unable to convince the Immigration Appeal Tribunal that he would

not commit such an offence again. Whilst the Convention organs have

on occasions found that the deportation of a non-national delinquent

from a country where his close family reside has constituted a breach

of Article 8 (Art. 8) of the Convention, deportation for drug offences

of the nature and scale of the present case may be justified even

where there are strong family considerations (cf. Eur. Court H.R.,

Moustaquim judgment of 18 February 1991, Series A No. 193). The

Commission finds, therefore, that the family circumstances in the

present case do not outweigh the State's legitimate interests in

preserving public health and order. It concludes that the

interference with the applicant's right to respect for family life is

justified as being necessary in a democratic society for the

prevention of crime and for the protection of health and the rights

and freedoms of others within the meaning of Article 8 para. 2 (Art.

8-2) of the Convention. Accordingly this aspect of the case must be

rejected as being manifestly ill-founded, pursuant to Article 27 para.

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

2. The applicant has also complained that the deportation

decision constitutes discrimination contrary to Article 14 (Art. 14)

of the Convention, read in conjunction with Article 8 (Art. 8).

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

"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."

However, the Commission notes that there is no evidence in the

case-file to substantiate the applicant's claim that the non-British

co-accused in his case do not, or will not, also face deportation in

family circumstances comparable to his. The Commission concludes,

therefore, that this aspect of the case is also manifestly

ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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PATEL v. THE UNITED KINGDOM

PATEL v. THE UNITED KINGDOM

LEXI