Lexploria

AS TO THE ADMISSIBILITY

Application No. 12894/87

by Semmy KASSIM

against the United Kingdom

The European Commission of Human Rights sitting in private on

8 March 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

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 5 June 1986

by Semmy KASSIM against the United Kingdom and registered on 2 May

1987 under file No. 12894/87;

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 Nigeria, born in 1947 and now

detained in HM. Prison High Point, Stradishall.

The facts of the case, as apparently agreed by the parties,

may be summarised as follows:

The applicant entered the United Kingdom in 1980 as a student

and married a citizen of the United Kingdom in 1982. He acquired

various business qualifications and his wife was assured in August

1983 by the Home Office that at that time, after his arrest on

suspicion of criminal offences, there was no question of deporting him

in the immediate future, and that if a recommendation to deport were

to be made by a court following a conviction any compassionate

circumstances would be taken into account before a final decision

would be reached. The couple had a child, a son, in October 1983.

In March 1985 the Southwark Crown Court convicted the

applicant on 11 counts of obtaining property by deception and

sentenced him on 10 April 1986 to 18 months' imprisonment concurrent

on each count, six months of which was to be suspended, and he was

recommended for deportation.

On 24 February 1986 the Court of Appeal dismissed the

applicant's appeals against conviction and sentence on the basis,

inter alia, that there was clear evidence against the applicant.

Although the Court of Appeal found the behaviour of defence counsel

throughout the trial "deplorable", this did not justify the quashing

of the conviction. As regards deportation, the Lord Chief Justice

held as follows:

"We take the view that the presence of the applicant

in the United Kingdom is to this country's detriment

in the light of the matters which have been divulged

to this Court and which we have touched upon in refusing

leave to appeal against conviction. If there are any

matters which should be taken into account by way of

mitigation, then we leave that to the Home Secretary. As

far as this Court is concerned, we think the recommendation

for deportation was correctly made and we endorse it."

The Secretary of State for the Home Department issued a

deportation order against the applicant on 27 October 1986, pursuant

to Sections 3(6), 5(1) and 6(1) of the Immigration Act 1971.

On 9 September 1987 the Government informed the Commission

that on 26 November 1986 the Southwark Crown Court had convicted the

applicant of 11 further offences of obtaining property by deception

and 10 offences of procuring the execution of a valuable security by

deception. He was sentenced to four years' imprisonment. His appeals

against this conviction and sentence were still pending at that time.

It is the Government's intention to deport the applicant to Nigeria on

completion of his latest prison sentence.

COMPLAINTS

The applicant complains that his proposed deportation is in

breach of his family rights, ensured by Articles 8 and 12 of the

Convention, constitutes torture, inhuman and degrading treatment,

contrary to Article 3 of the Convention, and racial discrimination

contrary to Article 14 of the Convention, for which breaches he has no

remedy in domestic law, contrary to Article 13 of the Convention. The

applicant also invokes Article 2 of Protocol No. 4 to the Convention

and Articles 3 and 9 of an EEC directive, 64/221/EEC.

The applicant submits that his family cannot be expected to

follow him to Nigeria where they have never lived, where there is no

social security system, where he no longer has family and relatives

and where he and his family would face undue hardship. He contends

that the Court of Appeal was wrong, and discriminatory, in leaving the

question of mitigating circumstances to the Home Secretary. He also

claims that the authorities have ignored EEC immigration and

nationality guidelines, and that by virtue of his long and close ties

with the United Kingdom, together with the compassionate circumstances

of his case, he qualifies for a right of abode there. He does not

consider that a conviction alone would, in all fairness, justify

deportation, particularly as there is no evidence to suggest that he

will be a threat to anyone or that he will not be completely

rehabilitated on release from prison.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 June 1986 and registered

on 2 May 1987. On 29 July 1987, pursuant to Rule 40 para. 1 of the

Commission's Rules of Procedure, the Rapporteur requested information

from the respondent Government concerning the applicant's deportation.

This information was provided by the Government on 9 September 1987

and the applicant submitted his comments thereon on 8 October 1987.

THE LAW

1. The applicant has first complained that the proposal to deport

him from the United Kingdom on completion of his prison sentence

constitutes a 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

wife and child, by virtue of their British nationality, have a right

to remain in the United Kingdom. However, the applicant has been

convicted of many serious fraud offences which, according to the Court

of Appeal, make his presence in the United Kingdom detrimental to that

country.

It may be true that the family would face certain economic

difficulties in Nigeria, despite the fact that the applicant has had

higher education in the United Kingdom, whereby he has acquired

various business qualifications. Nevertheless, the Commission does

not find that such difficulties in themselves constitute a serious

obstacle to the whole family moving to Nigeria.

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

Convention.

2. In respect of his deportation complaint the applicant has also

invoked Articles 3, 12, 13 and 14 (Art. 3, 12, 13, 14) of the

Convention, Article 2 of Protocol No. 4 (P4-2) to the Convention and an EEC

directive.

As regards Protocol No. 4 (P4) the Commission has no competence

ratione personae to examine the applicant's complaint thereunder

because the United Kingdom have not ratified that Protocol. As

regards the EEC Directive, 64/221/EEC, the Commission has no

competence ratione materiae to apply EEC directives as such; it

only has competence to apply the Convention.

As regards Articles 3, 12, 13 and 14 (Art. 3, 12, 13, 14) of

the Convention, the Commission finds no evidence to substantiate the

applicant's claims thereunder: the hardship which the applicant might

face in Nigeria has not been shown to be of such a serious nature as

to amount to torture, or inhuman and degrading treatment, contrary to

Article 3 (Art. 3) of the Convention. The applicant has not been

prevented from marrying and founding a family, rights guaranteed by

Article 12 (Art. 12) of the Convention. The applicant had an effective

domestic remedy before the Court of Appeal by way of an appeal against

sentence, which included the recommendation to deport. Article 13

(Art. 13) is thereby satisfied for it guarantees the opportunity to

claim, at least in substance, a breach of the Convention, but it does

not guarantee the successful outcome of that claim. Finally, there is

no evidence that the courts or immigration authorities were motivated

by racial discrimination or otherwise discriminated against the

applicant in respect of matters which affected his Convention rights,

contrary to Article 14 (Art. 14) of the Convention.

3. In these circumstances the Commission concludes that the

application as a whole is manifestly ill-founded and must accordingly

be rejected under 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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KASSIM v. the UNITED KINGDOM

KASSIM v. the UNITED KINGDOM

LEXI