Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14476/88

by Shaukat ALI

against the United Kingdom

The European Commission of Human Rights sitting in private on

20 January 1989, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 30 November

1988 by Shaukat ALI against the United Kingdom and registered on

1 December 1988 under file No. 14476/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of Pakistan, born in 1961 and

detained in H.M. Prison Winson Green, Birmingham. He is represented

before the Commission by Mr. S. Akhtar of the Handsworth Law Centre,

Birmingham.

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

which may be deduced from official documents included in the

application, may be summarised as follows:

On 10 July 1982 the applicant was admitted to the United

Kingdom to marry his fiancée, settled in that country. They married

on 7 September 1982 and the applicant's wife applied for him to be

granted indefinite leave to remain. This was refused as he had not

completed the normal probationary 12 months period allowed to foreign

husbands, but his stay was extended until 29 November 1983. According

to Home Office records, during 1983 the Home Office received several

reports from the applicant's wife of the applicant's alleged

ill-treatment of her and his intermittent abandonment of the

matrimonial home to live with his father. A son was born to the

couple on 26 July 1983 and, on 9 April 1984, the wife wrote, through

the local police, that although the marital problems continued she

would request a further extension of the applicant's stay in order to

attempt reconciliation. When the couple were interviewed on 3 July

1984, the Home Office found that the couple did not cohabit and that

the applicant was apparently physically abusing his wife. (This is

denied by the applicant.) The wife's application was, therefore,

refused. However, the couple subsequently reconciled and, after

another Home Office interview in June 1985, the applicant was given a

further 12 months leave to remain until 23 August 1986. A daughter

had been born to the couple on 9 March 1985.

The applicant states that due to an oversight he failed to

apply for extension of his stay during that period of leave. On 4

September 1986 he made an application for leave to remain out of time.

This was refused on 24 September 1987 without a right of appeal, and

on the same day he was convicted of an offence of criminal damage. He

was fined £100 and ordered to pay £119 in compensation and costs.

In October 1987 further criminal proceedings were instituted

against the applicant for overstaying his leave, contrary to section

24 of the Immigration Act 1971. He was convicted by a Magistrates

Court of this offence on 26 November 1987, fined £50 and recommended

for deportation. The applicant states that unfortunately he did not

appeal against this recommendation to the Birmingham Crown Court who

would probably have quashed this part of the sentence.

On the basis of the court's recommendation, the Home Secretary

issued a deportation order against the applicant on 7 October 1988,

when he was arrested and detained with a view to removal from the

United Kingdom. The Home Secretary was satisfied, after his officers

had interviewed the applicant and his wife in April 1988, that the

applicant had remained in the United Kingdom since August 1986 without

leave and that his marriage had irretrievably broken down.

The applicant acknowledges that he and his wife have had

matrimonial difficulties and have separated intermittently. However

he has kept in constant touch with his children. Prior to his

imprisonment he visited them regularly without his wife's disapproval.

Because reconciliation was possible with his wife he did not apply for

the children's custody. He wants to continue seeing the children.

His entire family is settled in the United Kingdom except for one

brother who will shortly emigrate there. He has had a successful food

business since April 1988. The applicant wishes to continue life in

the United Kingdom and to be reconciled with his wife. His wife,

although judicially separated from him, is not seeking a divorce.

An application for judicial review was refused on 11 October

1988, the High Court deeming the deportation order to be reasonable in

the circumstances.

COMPLAINTS

1. The applicant complains that the refusal of British

immigration authorities to allow him to remain in the United Kingdom

and the deportation order against him are in breach of his right to

respect for family life ensured by Article 8 of the Convention. If he

is deported he will not be able to keep in regular contact with his

children and there will be no possibility of a reconciliation with his

wife (cf. Eur. Court H.R., Berrehab judgment of 21 June 1988).

Furthermore he will be separated from his parents and siblings who

have settled in the United Kingdom.

The applicant also complains that his detention pending

deportation is unjustified and offends Article 3 of the Convention.

He has been refused bail.

The applicant submits that the recommendation of the

Magistrates Court that he be deported was a disproportionate sentence

to his overstaying and left him without a right of appeal against the

Secretary of State's deportation order, contrary to Article 6 of the

Convention.

THE LAW

1. The applicant has complained that the refusal of the British

immigration authorities to allow him to remain in the United Kingdom

and the deportation order against him are in breach of his right to

respect for family life ensured by Article 8 (Art. 8) of the Convention. He

also complains that his ensuing detention constitutes inhuman and

degrading treatment, contrary to Article 3 (Art. 3) of the Convention, and that

the absence of a right of appeal against the deportation order

precludes any possibility of a fair hearing in the determination of

his civil rights, contrary to Article 6 para. 1 (Art. 6-1) of the Convention.

2. However, as regards the applicant's complaint under Article 8 (Art. 8)

of the Convention, the Commission is not required to decide whether or not the

facts alleged by the applicant disclose any appearance of a violation of this

provision as, under Article 26 (Art. 26) of the Convention, it may only deal

with a matter after all domestic remedies have been exhausted according to the

generally recognised rules of international law.

In the present case the applicant failed to appeal to the

Crown Court against the Magistrates Court's recommendation to deport

him, a remedy which he himself considers would have had good prospects

of success. As a result of this omission the Secretary of State acted

on the court's recommendation, leaving the applicant with no further

independent remedies. The applicant did not, therefore, exhaust the

remedies available to him under English law. Moreover, an examination

of the case as it has been submitted does not disclose the existence

of any special circumstances which might have absolved the applicant,

according to the generally recognised rules of international law, from

pursuing this course. It follows that this aspect of the case must be rejected

pursuant to Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.

3. Insofar as the applicant has complained that the decision

to detain him pending deportation amounts to inhuman and degrading

treatment, contrary to Article 3 (Art. 3) of the Convention, the Commission

finds that there is no evidence in the case file to suggest that this

decision amounts to the serious ill-treatment proscribed by Article 3

(Art. 3) of the Convention. It follows that this aspect of the case must be

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

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

4. Finally, insofar as the applicant contends that he has been

denied a fair hearing in the determination of his civil rights, the

Commission recalls its constant case-law that the guarantees of

Article 6 para. 1 (Art. 6-1) of the Convention do not apply to such immigration

matters, in particular questions concerning an alien's deportation or

leave to remain (cf. No. 8244/78, Singh, Uppal et al. v. the United

Kingdom, Dec. 2.5.79, D.R. 17 p. 149; No. 9285/81, Dec. 6.7.82, D.R.

29 p. 211). It follows that this aspect of the case must be rejected

as being incompatible ratione materiae with the provisions of the

Convention, pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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ALI v. THE UNITED KINGDOM

ALI v. THE UNITED KINGDOM

LEXI