AS TO THE ADMISSIBILITY OF

Application No. 13718/88

by C.

against the United Kingdom

        The European Commission of Human Rights sitting in private on

15 July 1988, the following members being present:

                MM.  C.A. NØRGAARD, President

                     S. TRECHSEL

                     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 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 25 February

1988 by C. against the United Kingdom and registered on 22 March 1988

under file No. 13718/88;

        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 Tanzania, born in 1957 and resident in

B., England.  He is a grocer / off-licence proprietor by profession.  He is

represented before the Commission by Messrs.  Thakrar & Co., Solicitors,

Southall.

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

may be deduced from the documents submitted in support of the

application, may be summarised as follows:

        The applicant arrived in the United Kingdom on 23 October 1976

to settle there with his parents.  His father is a British Protected

Person and his mother an Indian national.  The family left Tanzania

allegedly under some persecution as East African Asians, the father

being unable, as a British Protected Person, to obtain an extension of

his trading permit from the Tanzanian authorities.  The applicant and

his family were given indefinite leave of entry.

        The applicant lives with and partially supports his parents.

His mother works away from home during the week and his father lives

with his son all the time as he is in poor health.  He provides

limited assistance to the applicant in his work.  The applicant is the

joint-owner of a grocery / off-licence business with his mother and

has paid the mortgage on his house.  He has some savings with which

the family hope to move to another town after selling the business.

        On 1 September 1979 the applicant married an Indian citizen

who had been allowed to enter the United Kingdom as his fiancée.  On

14 August 1980 a daughter was born to the couple.  The daughter has

British nationality by virtue of her birth on United Kingdom

territory.  The applicant's wife was granted indefinite leave of entry

on 29 July 1982.  The couple became estranged and apparently separated

in February 1983.

        On returning from a visit to India on 20 November 1982 the

applicant, accompanied by another woman, was arrested by HM customs at

London Heathrow Airport for being in possession of approximately 10

kilos of cannabis resin which had an estimated value of £20,000.  They

were both prosecuted.

        On 21 March 1984 the applicant was convicted for illegal

importation of cannabis and sentenced to 30 months' imprisonment.  He

submits that his role in the offence was only that of courier, that

the drug was not a dangerous one like heroin, that there is no danger

of him re-offending, that he himself is not a drug user and that he

has no other criminal convictions.

        During his imprisonment the applicant was well-behaved and

became reconciled with his wife.  The whole family now live together

and a second child, a son, was born on 30 November 1986.

        On 6 February 1985 the Home Secretary made a deportation order

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

1971, the applicant's deportation back to Tanzania being deemed

"conducive to the public good".

        The Home Office explanatory statement (dated 9 May 1985) to

the Immigration Appeal Tribunal stated as follows:

        "The Secretary of State carefully considered the appellant's

        position in the United Kingdom.  The appellant had been

        convicted of being involved in the illegal importation of a

        large quantity of cannabis, with a street value of £20,000,

        and had been sentenced to 30 months' imprisonment.  The

        appellant was 27 years old and was of an age where he could

        be expected to make a life for himself in Tanzania.  He had

        spent the formative years of his life in Tanzania, coming

        to the United Kingdom in 1976 when he was nineteen years old.

        The appellant had been in employment prior to his conviction;

        and his parents were settled in the United Kingdom.  The

        appellant's marriage had not subsisted prior to his conviction

        and although the appellant claimed to have been reconciled

        with (his wife) he had also maintained contact with (his

        co-accused).  The appellant's wife was an Indian national

        who had spent the formative years of her life in India

        (where her parents still resided) and had only come to the

        United Kingdom in August 1979 at the age of 18; moreover her

        daughter was only four years old and was of an age where she

        could be expected to adapt to life in her father's country

        should the parents intend to live together in the future.

        There were no known compassionate factors in his favour other

        than these family ties to outweigh the gravity of his offence.

        Having regard to all the relevant factors, including those

        set out in paragraph 156 of HC 169 (Immigration Rules), the

        Secretary of State decided that in view of the appellant's

        conviction and the nature and amount of the drugs involved

        it would be conducive to the public good to deport the

        appellant."

        The relevant part of paragraph 156 of the Statement in Changes

in Immigration Rules HC 169 provides as follows:

        "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..."

        Paragraph 159 of HC 169 deals generally with the Secretary of

State's powers to deport for reasons conducive to the public good,

even where, as in this case, there has been no court recommendation to

deport.  It provides that the Secretary of State must take into

account all the relevant circumstances of the case including those

listed in the aforementioned paragraph 156.

        On 21 June 1985 the Immigration Appeal Tribunal dismissed the

applicant's appeal against the deportation order for the following

reasons:

        "We have carefully considered the evidence and the manner in

        which (the Home Secretary's) discretion should be exercised,

        having particular regard to the matters set out in paragraph

        156 (Immigration Rules).  In our view there are undoubtedly

        compassionate circumstances in this case, in that the

        appellant has strong family connections here by reason of his

        parents, his daughter and his wife with whom he is now said

        to be reconciled.  We also recognise that a return to Tanzania

        must be a highly unpleasant prospect for him to face, and

        that life will not be easy there.  Nevertheless the offence

        of which he was convicted involved a large amount of cannabis

        resin and was in our view of an extremely serious nature.  In

        our opinion the compassionate circumstances do not outweigh

        the consideration of public interest in this case, and this

        appeal is dismissed."

        No reference is made in the Tribunal decision to the

applicant's submissions under Article 8 (Art. 8) of the Convention which had

been put before the Tribunal.

        The applicant sought judicial review of the Tribunal's

decision on the grounds, inter alia, that there had been a failure to

take into account Article 8 (Art. 8) of the Convention.  The application for

leave to move for judicial review was refused by a single judge of the

High Court on 4 October 1985.  On 29 January 1986 the Court of Appeal

overturned that decision and granted leave.  Back before the High

Court on 28 January 1987 Mr.  Justice Taylor held, after reviewing the

relevant Convention case-law, including the case of Mmes Abdulaziz,

Cabales and Balkandali v. the United Kingdom (Eur.  Court H.R.,

judgment of 28 May 1985, Series A No. 94), and the relevant domestic

case-law on the effects of the Convention, that "the extent to which

the Convention is relevant or may be used is to assist in interpreting

our statute law if there is ambiguity or doubt.  What it certainly

cannot do is override or replace or provide a test under our

legislation where our legislation is perfectly clear".  He found no

allegation in the applicant's case that Section 3 of the Immigration

Act 1971 was ambiguous.  Moreover, he also found no evidence that the

Immigration Appeal Tribunal, despite their silence on the point, did

not anyway take into account the applicant's submissions under Article

8 (Art. 8) of the Convention as "representations received on the person's

behalf" pursuant to paragraph 156 of the Statement in Changes in

Immigration Rules HC 169.

        Mr.  Justice Taylor concluded his judgment as follows:

        "Finally, I would say that on the factual background to this

        case, if one looks at the decision of the tribunal and its

        review of the evidence, there are certainly grounds upon

        which it would be perfectly reasonable to uphold the

        decision of the Secretary of State.  This was a case not of

        some minor drug offence, being in possession of a small

        amount of drugs or even being in possession of it with intent

        to supply.  This was a serious case of the importation of a

        large quantity of cannabis.  Clearly the object must have been

        commercial.  There is an interest of the highest importance in

        demonstrating not merely to the person concerned but more

        importantly to others who might be minded to act as couriers

        that an offence of that character may carry a very severe

        penalty indeed.  In this case it carried a penalty of 30

        months' imprisonment, but it was considered by the Secretary

        of State that it was also one which justified deportation.

        Even if one looks at the criteria of the Article (Article 8 of

        the Convention) (Art. 8) itself, one can well see that the facts here

        could justify applying the exception that this was a

        deportation necessary for the prevention of crime and for

        the protection of health.  Certainly I would not be

        prepared to hold that a decision to that effect was one

        which no reasonable Secretary of State, or as the decision

        which is challenged here makes more relevant, one which no

        reasonable tribunal could have reached.

        For all those reasons this application must be dismissed."

        An appeal against this latter decision to the Court of Appeal

was dismissed on 30 October 1987 for broadly similar reasons, adding

that the applicant could derive no legitimate expectation that in his

kind of case the Secretary of State or the Immigration Appeal Tribunal

would have regard to Article 8 (Art. 8) of the Convention.  One of the three

Court of Appeal Judges, Glidewell LJ, also expressed the view that "it

cannot be implied from Section 5 of the Immigration Act 1971 or the

relevant paragraphs of the Immigration Rules that the Convention is

intended to be or is in any way a relevant consideration for the

Secretary of State or the Immigration Appeal Tribunal in the

circumstances of the applicant's case.  As the relevant law displayed

no ambiguities the Immigration Appeal Tribunal was justified, and

indeed obliged, not to refer to the wording of the Convention.

        On 11 February 1988 further leave to appeal to the House of

Lords was refused by the House of Lords Appeal Committee.

COMPLAINTS

        The applicant complains that his proposed deportation from the

United Kingdom to Tanzania is in breach of Articles 8 and 13 (Art. 8,

Art. 13) of the Convention.

        The applicant contends that if he is deported he "will be

permanently separated from his mother and father.  The only country to

which he could realistically go would be Tanzania, but out of his

immediate family circle only he is a Tanzanian national.  There is no

legal obligation on Tanzania to admit either his father (a British

Protected Person) or his mother (an Indian national).  Further the

family left in circumstances of some persecution and it is not

realistic to expect a return by the mother and the father.  The father

is in poor health and dependent upon the applicant as a bread-winner;

if the applicant is removed both parents face old age without a major

part of the family support they have had to date in the United

Kingdom.  The applicant's wife would be placed in an intolerable

position.  She has no contact at all with Tanzania.  The applicant

does not know whether she will be admitted to Tanzania.  The

applicant's daughter is a British citizen and is now aged 7.  The life

of the present, close, extended family will be destroyed if the

applicant is to be removed."

        As regards Article 8 (Art.8) of the Convention the applicant contends

that his family life will be severed as his family cannot follow him

to Tanzania.  His deportation is disproportionate in the

circumstances.  He has led a sober and industrious life with the

exception of the drug offence.  He supports his whole family.

Tanzania is a strange culture to him and a place where he has no

friends or relatives.  His removal would constitute a further

punishment of banishment and is not necessary for the prevention of

crime in the sense of preventing further offences as there is no

evidence that he will ever offend again or that his removal will have

a deterrent effect on potential offenders.  He points out that the

criminal court did not recommend his deportation and that the offence

involved cannabis, not a life threatening drug like heroin.

        The applicant also claims that Article 13 (Art. 13), both read alone

and together with Article 8 (Art. 8), is breached in his case because the

English legal system fails to provide an adequate remedy for the alleged breach

of Article 8 (Art. 8) of the Convention.  The applicant submits that the

domestic court decisions in this case, in particular the opinion of Glidewell

LJ in the Court of Appeal (p. 5 above), reveal that the immigration authorities

are not entitled to take the Convention into account.  They cannot, therefore,

provide an adequate remedy.

        The applicant draws the following conclusions from the

domestic court judgments in his case:

        (i)    the Home Secretary is not entitled to consider whether

removal of an immigrant can be said to be necessary in a democratic

society for the prevention of crime.  The Convention case-law

elucidating the concept is simply irrelevant to his considerations;

        (ii)    it follows that the Home Secretary will never form his

own view as to those measures which can properly be said to be a

proportionate response to a pressing social need;

        (iii)   the Convention cannot have any role at all in changing

the mind of an administrator, because he is not allowed to look at it;

        (iv)    there is no mechanism for giving effect to a decision

of the Strasbourg Court without primary legislation; if the Secretary

of State cannot have regard to the Convention, he equally cannot have

regard to a judgment of the Court, which has no force other than that

conferred by the Convention itself.

        The applicant contends that inherent in the concept of an

adequate remedy under Article 13 (Art. 13) is the ability to draw to the

attention of the relevant domestic authority the possibility that a

given administrative action might create a breach of the Convention

and should be avoided or reversed for that reason.  The ability to do

so was denied the applicant and in the present state of English law

cannot be granted to anyone complaining of the manner of exercise of a

statutory discretion, whether in immigration or any other field.

        It is further submitted that the operation of United Kingdom

domestic law, as it must take place following the Court of Appeal

decision herein, is inimical to the proper functioning of the

Convention.  The essence of the concept of a "margin of appreciation"

is that domestic authorities themselves consider the matters in the

light of Convention obligations, and provide, if necessary, material

by which the Commission and the Court can judge whether or not the

relevant exercise of administrative discretion falls within the margin

of appreciation.  If the domestic authorities cannot look at the

Convention, this exercise cannot be undertaken.

THE LAW

1.      The applicant has complained that his proposed deportation

from the United Kingdom to Tanzania is in breach of his right to

respect for family life.

        The relevant part of Article 8 (Art. 8) of the Convention provides 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 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."

        Whilst the Convention does not guarantee a right, as such, to

enter or remain in a particular country, the Commission has constantly

held that the exclusion of a person from a country where his close

relatives reside may raise an issue under Article 8 (Art. 8) of the Convention

(e.g.  No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219; No. 9088/80, Dec.6.3.82, D.R.

28 p. 160 and No. 9285/81, Dec. 6.7.82, D.R. 29 p. 205).

        In the present case, the Commission notes that the applicant's

parents, wife and children have indefinite leave to reside in the

United Kingdom (his eldest child is a British citizen).  However, the

applicant has been convicted of a serious drugs' offence which,

according to the British Immigration authorities, render his

deportation "conducive to the public good", within the meaning of

Section 3(5)(b) of the Immigration Act 1971.  These authorities have

carefully considered the applicant's family circumstances and the fact

that the applicant and his wife do not have particularly strong ties

with the United Kingdom.  The Commission also notes that the applicant

has not shown that his wife and children would not be entitled to join

him in Tanzania or that his parents could  not manage financially

without him in the United Kingdom if they decided not to follow him

back to Tanzania.  The applicant's mother is employed and has an

income.  She also owns half of the family business.  The Commission

does not find that the deportation decision necessarily involves the

break up of the whole family or that the establishment of a new home

would pose insuperable difficulties for the young couple.

        Thus, while the Commission considers that the proposed

deportation of the applicant constitutes an interference with the

applicant's family life under Article 8 para. 1 (Art. 8-1) of the Convention,

the Commission must, in considering whether that interference was justified

under Article 8 para. 2 (Art. 8-2), attach significant weight to the

aforementioned factual circumstances, in particular the serious drug offence.

The Commission concludes, therefore, that the said interference, which was in

accordance with British immigration law, was justified as being "necessary in a

democratic society ... for the prevention of disorder and crime, (and) for the

protection of health", within the meaning of Article 8 para. 2 (Art. 8-2) of

the Convention.

        It follows that this aspect of the applicant's case is

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

the Convention.

2.      The applicant has also complained that he had no effective

domestic remedy at his disposal for his Article 8 (Art. 8) complaint.  He

claims thereby to be a victim of a breach of Article 13 (Art. 13) of the

Convention which provides as follows:

        "Everyone whose rights and freedoms as set forth in

        this Convention are violated shall have an effective

        remedy before a national authority notwithstanding that

        the violation has been committed by persons acting in an

        official capacity."

        The Commission refers to the constant case-law of the

Convention organs that "neither Article 13 (Art. 13) nor the Convention in

general lays down for the Contracting States any given manner for

ensuring within their internal law the effective implementation of any

of the provisions of the Convention" (Eur.  Court H.R., Swedish Engine

Drivers' Union judgment of 6 February 1976, Series A No. 20 para. 50).

Thus the Contracting Parties do not have to incorporate the Convention

into the domestic law, but, if they do not, they must give effect to

its substance and provide domestic remedies to enforce effectively the

equivalent rights and freedoms in domestic law (Eur.  Court H.R.,

Lithgow and Others judgment of 8 July 1986, Series A No. 102 para. 205).

        The Commission notes that the Convention is not part of

British domestic law.  However, it does not accept the applicant's

contention that he had no effective domestic remedies before the

British immigration authorities and courts just because they were not

obliged by domestic law to take the provisions of Article 8 (Art. 8) of the

Convention directly into account when examining his case.  The

Commission finds that, in the present case, the examination by the

domestic authorities of whether the applicant's criminal conviction

rendered his deportation "conducive to the public good", pursuant to

Section 3(5)(b) of the Immigration Act 1971, account being taken of

all relevant circumstances, including the compassionate circumstances

arising from his family situation, in substance was a similar exercise

to the examination of whether his deportation was "necessary in a

democratic society ... for the prevention of disorder or crime, (and)

for the protection of health", within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.  In the light of these considerations, the

Commission concludes that the applicant had an effective remedy for

the purposes of Article 13 (Art. 13) of the Convention in his appeal against

deportation before the independent Immigration Appeal Tribunal, and in

the judicial review of the Tribunal's decision by the High Court and

the Court of Appeal.

        It follows that this aspect of the applicant's 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

        DECLARES THE APPLICATION INADMISSIBLE.

      Secretary to the Commission       President of the Commission

             (H.C. KRÜGER)                    (C.A. NØRGAARD)