Lexploria

The European Commission of Human Rights sitting in private on

16 October 1986, the following members being present:

MM C.A. NØRGAARD, President

J.A. FROWEIN

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr F. MARTINEZ

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 21 April 1986 by S.L.

against the United Kingdom and registered on 2 May 1986 under file No.

12122/86;

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 facts of the case as submitted by the applicant may be summarised

as follows:

The applicant is a citizen of South Africa, born in 1958, who at the

time of lodging his application was detained in H.M. Remand Centre,

Richmond, Surrey, awaiting deportation back to South Africa. He is a

Hindu of Indian descent. He is represented before the Commission by

Messrs Namel de Silva & Co., Solicitors, London.

The applicant entered the United Kingdom in August 1982 on a six month

visitor's permit. He failed to apply for an extension of leave and

was arrested on 20 October 1983 and charged with overstaying. He was

convicted on 23 January 1984 of this offence, fined £100 and

recommended for deportation. No appeal was lodged against this

recommendation.

In the meantime the applicant had married a British citizen of Indian

origin on 14 January 1984. His spouse has been settled in the United

Kingdom with her family since she was twelve years of age.

On 29 May 1984 the Home Secretary issued a deportation order against

the applicant. Appeal applications to the Adjudicator

(3 October 1984), Immigration Appeal Tribunal (21 May 1985), the High

Court (12 September 1985) and the Court of Appeal (17 February 1986)

were unsuccessful. The appeal applications under Section 17 para. 1

of the Immigration Act 1971 concerned the proposed destination of

deportation, i.e. South Africa, where the applicant claims to fear

persecution, but none of these jurisdictions was competent to consider

political asylum questions, these being matters solely within the

discretion of the Secretary of State, and the applicant had been

unable to show that any other country would accept him.

The applicant applied to the Home Secretary for political asylum on

the grounds that if he is required to leave the United Kingdom he

would have to go to South Africa where he fears persecution.

The Home Office informed the applicant's solicitors on 7 May 1985 as

follows:

"(The applicant) was interviewed on 21 January in order to give him

every opportunity of detailing his reasons for not wishing to return

to South Africa. The results of this interview have been given full

and careful consideration but I regret to inform you that the

Secretary of State is not satisfied that (the applicant's) fear of

persecution is well founded. The asylum application is therefore

refused."

Thereafter the applicant was involved in a criminal prosecution for

misuse of company funds and sentenced to six months' imprisonment by

the Knightsbridge Crown Court. It was the intention of the Secretary

of State to deport the applicant on completion of that sentence

on 8 April 1986.

In a letter of 26 March 1986 written by the applicant's solicitors to

the Home Office, the application for political asylum was renewed in

the following terms:

"As our client is an active member of the Anti-Apartheid Movement in

London, which is banned in South Africa, which is also affiliated to

the African National Congress of South Africa, which is also banned in

South Africa, if he were to be forcibly removed to South Africa

against his will, he strongly believes that he will be persecuted. He

will be detained in prison without trial. His fear is a genuine one

and well founded. The treatment of political dissidents in South

Africa can be said with absolute certainty. (The applicant) will be

treated with scant regard to his liberty if at any stage he is

returned to South Africa. It can be seen from daily reports of the

press that there is a fundamental struggle for human rights going on

in South Africa and that fundamental rights are being denied to people

of (the applicant's) race and political persuasion."

The refusal of the applicant's High Court application was reported in

the Daily Telegraph, and the solicitors claimed that the applicant's

anti-apartheid activities have been published in the South African

media and must be known by the South African Secret Police. The

applicant thus believes that he has "good reasons to fear for his life

on his return to South Africa and that he might well be arrested by

the Military Intelligence and will be subjected to torture and will

face imprisonment without trial and his life will be in danger." No

formal reply to this application has been given. The applicant has

been temporarily released pending the outcome of the various

representations that have been made on his behalf to the Home Office.

To substantiate his anti-apartheid activities, the applicant submitted

a photocopy of his purported membership card of the British

Anti-Apartheid Movement.

COMPLAINTS

The applicant complains that he has been denied a fair hearing,

contrary to Article 6 (art. 6) of the Convention, in respect of his

application for political asylum, given the lack of jurisdiction of

the immigration appeal organs to deal with questions of asylum. It is

contended that the limited nature of appeal against deportation under

Section 5 para. 1 of the Immigration Act 1971 is not only incompatible

with Article 6 (art. 6) of the Convention, but also contrary to

Articles 32 para. 2 and 33 of the 1951 Convention Relating to the

Status of Refugees, as amended by its 1967 Protocol.

The applicant also complains that his proposed deportation to South

Africa will breach his right to respect for family life ensured by

Article 8 (art. 8) of the Convention. He states that he is happily

married to a British citizen of Indian origin who could not be

expected to follow him to South Africa, given the present

circumstances in South Africa.

Finally the applicant complains of a breach of Article 3 (art. 3)

of the Convention if he is sent back to South Africa where he fears

severe persecution, torture and imprisonment without trial, because of

his political activities against the present regime in South Africa as

an active member of the Anti-Apartheid Movement in the United Kingdom,

which is banned in South Africa.

THE LAW

1. The applicant has complained of a denial of a fair hearing

before a competent jurisdiction in respect of his request for

political asylum.

The relevant part of Article 6, para. 1 (art. 6-1) of the Convention

provides as follows:

"In the determination of his civil rights and obligations ....

everyone is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by law ...."

However, the Commission recalls its constant case-law that Article 6

para. 1 (art. 6-1) of the Convention does not apply to the analogous

matter of deportation, no question of a determination of civil rights

and obligations arising:

"....A decision as to whether an alien should be allowed to stay in a

country is a discretionary act by a public authority. Consequently,

the decisions to expel .... were of an administrative order and they

were made in the exercise of the discretionary powers of the

immigration authorities. They did not, therefore, involve as such the

determination of civil rights within the meaning of Article 6 para. 1

(art. 6-1) of the Convention ...." (No. 8244/78 Singh Uppal et al.

v. the United Kingdom, Dec. 2.5.79, D.R. 17 p. 149).

The Commission considers that, similarly, the proceedings by which the

United Kingdom authorities refused the applicant political asylum were

of an administrative, discretionary nature and did not involve the

determination of the applicant's civil rights and obligations. It

follows that the provisions of Article 6 para. 1 (art. 6-1) of the

Convention are not applicable to such proceedings and this aspect of

the case must be rejected as being incompatible ratione materiæ with

the provisions of the Convention, pursuant to Article 27 para. 2

(art. 27-2) of the Convention.

2. The applicant next complains of a violation of his right to

respect for family life should he be deported to South Africa. He is

married to a British citizen of Indian origin who, given the

circumstances in South Africa, could not be expected to follow him to

that country.

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

as follows:

"1. Everyone has the right to respect for his .... 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."

The Commission refers to its constant case-law that there is no right

to enter, reside or remain in a particular country guaranteed, as

such, by the Convention. However, the Commission has also held that,

in view of the right to respect for family life ensured by Article 8

(art. 8), the exclusion of a person from a country in which his close

relatives reside may raise an issue under this provision of the

Convention (see e.g. No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219).

In the present case, the Commission notes that the applicant is to be

deported for having failed to observe immigration controls and that

his marriage was contracted at a time when the applicant was aware

that he was at risk with his irregular immigration status. Although it

may be unreasonable to expect the applicant's wife to follow him to

South Africa, given the present circumstances there, the applicant may

not necessarily be permanently excluded from the United Kingdom.

According to current Immigration Rules the applicant may apply for

entry clearance to join his wife, she being a British citizen. This

he could do following an application for the revocation of the

deportation order. Although, according to para. 171 of the Statement

of Changes in Immigration Rules HC 169, the Secretary of State will

not normally revoke a deportation order which has been in force for

less than three years, he will consider revocation in exceptional

circumstances.

In the circumstances of the present case, even though the applicant's

present deportation would constitute an interference with his right to

respect for family life under Article 8 (art. 8), the Commission must

attach significant weight to the reasons for this measure. It finds

with regard to the second paragraph of Article 8 (art. 8) that there

are insufficient elements concerning respect for family life which

could outweigh valid considerations relating to the proper enforcement

of immigration controls. In this respect the Commission would

emphasise the close connection between the policy of immigration

control and considerations pertaining to public order. The Commission

is of the opinion, therefore, that the potential interference with the

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

law (the Immigration Act 1971), and justified as being necessary in a

democratic society for the "prevention of disorder" under the second

paragraph of Article 8 (art. 8), as a legitimate measure of

immigration control.

Accordingly, this part of the application must be rejected as being

manifestly ill-founded, within the meaning of Article 27 para. 2

(art. 27-2) of the Convention.

3. Finally, the applicant has complained that his deportation to

South Africa, where he fears persecution, would constitute a violation

of Article 3 (art. 3) of the Convention, which provides as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission here again refers to its constant case-law:

"The Commission notes that even though the question of extradition,

expulsion and the right to asylum do not figure, as such, amongst

those rights which govern the Convention, the Contracting States have

none the less agreed to restrict the free exercise of their rights

under general international law, including their right to control the

entry and exit of foreigners, to the extent and within the limits of

the obligations they have accepted under the Convention (cf. mutatis

mutandis the decision of 30 June 1959 on the admissibility of

application No. 434/58, Yearbook 2, p. 373). Consequently, the

expulsion or extradition of an individual could, in certain

exceptional cases, prove to be in breach of the Convention and

particularly of Article 3 (art. 3), whilst there are serious reasons

to believe that he could be subjected to such treatment prohibited by

the said Article 3 (art. 3) in the State to which he must be sent."

(No. 6315/73, Dec. 30.9.74, D.R. 1 p. 73)

It is thus the Commission's task to examine the particular

circumstances of this case in order to determine whether the

applicant's eventual expulsion to South Africa could constitute

inhuman or degrading treatment within the meaning of Article 3

(art. 3) of the Convention.

The Commission notes that the applicant claims to fear persecution in

South Africa because he is an anti-apartheid activist, being a member

of the British organisation, the Anti-Apartheid Movement, which is

apparently banned in South Africa. This organisation also has links

with the banned African National Congress in South Africa. The only

evidence submitted in support of this claim is a photocopy of a

purported membership card of the said British Movement. While not

doubting the applicant's anti-apartheid convictions and the

difficulties he faces as a person of Indian origin in the apartheid

system of South Africa, these elements in themselves are insufficient

to show a genuine risk of persecution and severe ill-treatment

contrary to Article 3 (art. 3) of the Convention.

In these circumstances the Commission concludes that the applicant's

claim is unsubstantiated and that this aspect of the case is

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)

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L. v. THE UNITED KINGDOM

L. v. THE UNITED KINGDOM

LEXI