Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16106/90

by B.

against the United Kingdom

The European Commission of Human Rights sitting in private

on 10 February 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 22 January 1990

by Z.B. against the United Kingdom and registered on 1 February 1990

under file No. 16106/90;

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 Cypriot national, born in 1958 and now

living in the United Kingdom. He is represented by Mr. J. P. Gardner,

Solicitor, and Stephanie Grant, Solicitor, Bindman and Partners, of

London.

The applicant came to the United Kingdom on 8 October 1977 and

was granted limited leave to remain as a student. His leave to remain

expired in October 1979. On 30 August 1983 the Secretary of State

made a deportation order against the applicant. The order was

eventually served on the applicant on 14 October 1986 together with

directions for removal to Cyprus.

On 21 October 1986 the applicant wrote to the Home Secretary

requesting him permission to remain in the United Kingdom on the

grounds that he was a homosexual with a permanent and stable

homosexual relationship with Mr. R., a United Kingdom national, with

whom the applicant had been living since late 1985. On 18 February

1988 the applicant was informed that the deportation order would not

be revoked.

The applicant has lived with Mr. R continuously since 1985 and

together they have formed a travel business. They have a joint bank

account and have jointly purchased a flat.

On 9 May 1988 the applicant's solicitors made a claim for

asylum on the basis of a well-founded fear of persecution by virtue of

the applicant's homosexuality and in view of the fact that male

homosexual behaviour is a criminal offence in Cyprus. On 19 July 1988

the Secretary of State informed the applicant that it was his view

that there was no persecution of any person for being homosexual in

Cyprus and that arrest for a criminal offence in Cyprus would not

amount to persecution. The applicant was further informed that even

taking into account the possible effect of the applicant's deportation

on Mr. R. and the total period spent by the applicant in the United

Kingdom, the Secretary of State had decided not to revoke the

deportation order.

On 14 September 1988 the applicant was granted leave to move

for judicial review challenging the lawfulness of the Secretary of

State's refusal to revoke the deportation order. He submitted,

firstly, that he was a refugee and, secondly, that the Secretary of

State had failed adequately to appreciate the implications of Article

8 of the European Convention on Human Rights. In his application the

applicant referred to the criminal penalties imposed by sections 171

and 173 of Chapter 154 of the Criminal Code of Cyprus. He referred to

his former reluctance to acknowledge his homosexual orientation while

living in the Turkish community in Cyprus on the grounds that

homosexuals were openly reviled and abused in public, subjected to open

intolerance by society and the subject of close attention from the

police who monitored their activities.

In the judicial review proceedings before the High Court on 18

July 1989 the applicant submitted that no reasonable Home Secretary

would so exercise his discretion as to put the United Kingdom in

breach of its obligations by removing an individual to a jurisdiction

where his rights under Article 8 were not protected. In addition

reference was made to the fact that the applicant would be surrendered

to the northern part of Cyprus, in respect of which there is reason to

doubt the scope of the availability of the right of individual petition

in view of the instruments deposited under Article 25 para. 1 of the

Convention by the Republic of Cyprus and Turkey.

Judgment was given on 25 July 1989 refusing the application

for judicial review. In his judgment Mr. Justice Kennedy stated as

follows:

"... I accept that on the facts of the present case the

Secretary of State was entitled to conclude that if the

Appellant is returned to the Turkish Republic of Northern

Cyprus it is not inevitable that he will openly behave in a

homosexual manner, nor is it inevitable that if he does so

he will inevitably suffer as a result anything which would

properly be described as persecution. If he does openly

behave in a homosexual manner he may be discriminated

against, but the Secretary of State was entitled to take the

view that the degree of discrimination would not be such as

to have the quality of persecution (see Moezzi v.

Secretary of State for the Home Department, Court of

Appeal 6 October 1988, unreported). Of course, on the

evidence, if the Appellant were to indulge in certain types

of homosexual activity he would risk prosecution, but the

Secretary of State was, submits Mr. Pannick, entitled to

recognise that the risk of prosecution would be avoided by

self restraint, that statistically the risk does not seem to

be very great, and that even when there is a prosecution the

consequences, relatively speaking, are not particularly

dire."

In the course of the proceedings evidence had been adduced

that since 1982 in the north of Cyprus four offenders had received

sentences of imprisonment, the maximum sentence being one of six

months' imprisonment.

Mr. Justice Kennedy concluded that the Secretary of State

could not be criticised for failing to act upon the possibility "as

yet untested before the organs of the Convention, that northern Cyprus

may be in breach of an Article of the Convention by continuing to

regard as criminal certain types of conduct in which the applicant

might or might not choose to indulge." Accordingly the Secretary of

State had not exercised his discretion in a manner which was so

unreasonable that the Court should intervene.

The applicant was advised by leading counsel that an appeal

against this decision was without prospects of success.

COMPLAINTS

1. The applicant complains that the decision of the Home

Secretary that he should be removed from the United Kingdom to Cyprus

constitutes an interference with his private life which shows such

lack of respect as to fail to be justifiable under Article 8 para. 2

of the Convention. He contends that this violation arises from the

forceable separation from Mr. R. and also from the implementation of

the decision to remove him to a jurisdiction where he would be subject

to prosecution and imprisonment for homosexual activities. In this

context he refers to the nature of his relationship with Mr. R. which

is closely akin to family life and the existence of a home established

by them. He points out that Mr. R. cannot join the applicant in

Cyprus, in the event of the applicant's removal, because the

establishment of such private relations would be a criminal offence

and is likely to lead to prosecution and imprisonment including Mr.

R.'s removal from the jurisdiction.

The applicant further maintains that treatment anticipated in

the country of destination is not in conformity with the Convention.

The decision to remove the individual to that jurisdiction cannot be

in accordance with the law for purposes of Article 8 para. 2 of the

Convention.

He further submits that there can be no justification for the

interference with his rights under this provision having regard to the

fact that he would be unable to continue his relationship in a country

where homosexual activity is criminalised and the possibility that the

right of individual petition does not extend to the acts of the Turkish

authorities in the occupied part of northern Cyprus.

2. The applicant further complains that the decision to remove

him constitutes discrimination contrary to Article 14 of the

Convention. He alleges that homosexual couples with an established

relationship are treated differently from heterosexual couples with

established relationships. In this context he points out that until

July 1985 women who had an established relationship outside marriage

with a patrial had a right to claim to settle in the United Kingdom.

This right was abolished in July 1985 but replaced with a discretion,

acknowledged by the Secretary of State, to consider the case of a

woman in such circumstances. No claim to the exercise of such a

discretion is afforded to male homosexual partners in equivalent

circumstances.

3. The applicant further complains that he is without an

effective remedy as required by Article 13 of the Convention in

respect of the decision of the Secretary of State. He points out that

there is no opportunity in English law to review the exercise of a

purely discretionary decision by the Secretary of State to remove an

individual notwithstanding his rights under the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 January 1990 and

registered on 1 February 1990.

On 1 February 1990 the President refused a request under Rule

36 of the Rules of Procedure that an indication be made to the

respondent Government not to remove the applicant from the United

Kingdom.

THE LAW

1. The applicant complains that his deportation constitutes an

unjustified interference with his right to respect for private life

guaranteed by Article 8 (Art. 8) of the Convention. He refers in this

context to his stable homosexual relationship since 1985 with Mr. R.

and the home and business they have set up together; the impossibility

of Mr. R. joining him in the northern part of Cyprus because of the

criminalisation of homosexual behaviour; the fact that he will be

removed to a jurisdiction where he risks prosecution and imprisonment

for homosexual acts.

Article 8 (Art. 8) of the Convention provides as follows:

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

family life, his home and his correspondence.

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

and remain in a particular country, the Commission has constantly held

that the exclusion of a person from a country where members of his

close family reside may raise an issue under Article 8 (Art. 8) of the

Convention (see, 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). The Commission has also considered that an issue

could arise under this provision where exclusion from a country

impinged on private life (see No. 9369/81, Dec. 3.5.83, D.R. 32 pp.

220, 221).

In the present case the Commission notes that the applicant

formed his relationship with Mr. R. at a time when he was aware that

he had no right to remain in the United Kingdom (see, mutatis

mutandis, Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment

of 28 May 1985, Series A no. 94, p. 34 para. 68). Moreover, the

Commission recalls its previous case-law concerning the deportation of

persons with established lesbian or homosexual relationships. The

Commission has held that such relationships involve private life

within the meaning of Article 8 (Art. 8) and that, although lawful

deportation will inevitably have repercussions on such relationships,

it cannot in principle be regarded as an interference with the right

to respect for private life given the state's right to impose

immigration controls and limits (see No. 9369/81, Dec. 3.5.83, D.R. 32

p. 221 and No. 14753/89, Dec. 9.10.89, to be published in D.R.).

Accordingly insofar as the applicant complains of the effect that the

deportation will have on his relationship with Mr. R. the Commission

finds that there has been no "lack of respect" for private life within

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

In the present case, however, the applicant further contends

that he will be exposed to prosecution for homosexual activity if he

is returned to the northern part of Cyprus. He submits that his

removal in such circumstances constitutes an unjustifiable

interference with his rights under this provision. He refers in this

context to the judgments of the European Court of Human Rights in the

cases of Dudgeon (judgment of 22 October 1981, Series A no. 45) and

Norris (judgment of 26 October 1988, Series A no. 142) where the

criminalisation of homosexual behaviour was held to constitute a

breach of Article 8 (Art. 8) of the Convention. He emphasises that he

is thus being returned to a country whose criminal laws in respect of

homosexuality are in breach of the Convention.

The Commission, however, in assessing this claim must attach

significant weight to the reasons for his deportation, namely, the

fact that he stayed for some considerable time in the United Kingdom

without leave. Moreover while the evidence indicates that the

applicant might at some stage in the future be subject to the risk of

prosecution for homosexual acts it does not indicate that the risk is

high. Furthermore, the evidence adduced in the course of the

proceedings for judicial review does not show that homosexuals in

the northern part of Cyprus are persecuted by the authorities.

The Commission considers that even if the applicant's

deportation were to constitute an interference with the right to

respect for private life against the background of the Dudgeon and

Norris judgments such interference was in accordance with the law (the

Immigration Act of 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. The Commission refers in this respect to its case-law which

highlights the close connection between the policy of immigration

control and considerations pertaining to public order (see No.

9285/81, Dec. 6.7.82, D.R. 29 p. 205). It finds that notwithstanding

the possibility that the applicant will be subjected to hostility and

social ostracism because of his homosexuality the considerations

relating to respect for private life in this case do not outweigh

valid considerations relating to the proper enforcement of immigration

controls.

It follows that the complaint under 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.

2. The applicant next complains that he is the victim of

discrimination insofar as United Kingdom immigration law affords

preferential protection to heterosexual couples. He points out that

in the case of a woman living in an established relationship outside

marriage the Secretary of State had a discretion under the

immigration rules to admit her in certain circumstances.

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."

The Commission has previously held that no discrimination

exists contrary to this provision where the Immigration Rules give

priority and better guarantees to established couples living in a

family relationship as opposed to other established relationships such

as lesbian or homosexual relationships (see No. 14753/89, loc. cit.).

In a previous case concerning the better protection under

housing legislation for established heterosexual couples rather than

lesbian couples the Commission stated as follows:

"The Commission accepts that the treatment accorded to the

applicant (a recognised lesbian) was different from the

treatment she would have received if the partners had been of

different sexes. The Commission finds that the aim of the

legislation in question was to protect the family, a goal

similar to the protection of the right to respect for family

life guaranteed by Article 8 (Art. 8) of the Convention. The aim

itself is clearly legitimate. The question remains, however, of

whether it was justified to protect families but not to give

similar protection to other stable relationships. The

Commission considers that the family (to which the

relationship of heterosexual unmarried couples living together

as husband and wife can be assimilated) merits special

protection in society and it sees no reason why a High

Contracting Party should not afford particular assistance to

families. The Commission therefore accepts that the

difference in treatment between the applicant and somebody in

the same position whose partner had been of the opposite sex

can be objectively and reasonably justified." (No. 11716/85,

Dec. 14.5.86, to be published in D.R. 47)

The Commission finds that the difference in treatment pursues

the legitimate aim of protecting family based relationships (including

relationships existing outside marriage) in a manner proportionate to

the achievement of that aim.

Accordingly in the present case the Commission concludes that

this complaint is also manifestly ill-founded, within the meaning of

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

3. The applicant furthers complains under Article 13 (Art. 13) of the

Convention that he is without an effective remedy in respect of the

decision of the Secretary of State to deport him.

The Commission recalls that an issue can only arise under this

provision in respect of an "arguable" claim that there has been a

breach of one of the provisions of the Convention (see Eur. Court

H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.

39, para. 71). The Commission notes its above findings as regards the

applicant's complaints under Articles 8 and 14 (Art. 8, 14) of the

Convention. The complaints under these provisions do not give rise to

an "arguable" claim for the purpose of Article 13 (Art. 13). It follows

that this complaint must also be rejected as manifestly ill-founded,

in the light of the Commission's analysis and rejection of the complaint,

under 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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B. v. THE UNITED KINGDOM

B. v. THE UNITED KINGDOM