AS TO THE ADMISSIBILITY OF
Application No. 27724/95
by Kulvinder Singh DHALIWAL
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 4 September 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 March 1995 by
Kulvinder Singh DHALIWAL against the United Kingdom and registered on
26 June 1995 under file No. 27724/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Indian national, born in India in 1964 and
presently detained in H.M. Prison Ashwell, Leicestershire. He is
represented before the Commission by Mr. G.S. Kang, a solicitor. The
facts as submitted by the applicant may be summarised as follows.
The applicant's father died in 1969. In the same year his mother
left the applicant and his two brothers in the care of his paternal
grandparents in India. In 1976 the applicant's uncle took
responsibility for the children and brought them to the United Kingdom
where they went to live with his family.
After leaving school at 16, the applicant attended technical
college and then started work as a general labourer at a foundry. He
was employed for one year before the foundry was closed in 1983 when
he was made redundant. In the same year his paternal grandfather died
in India. The applicant suffered severe depression relating to the
events in his family and his lack of employment and in March 1983 he
attempted suicide. He made a further suicide attempt a few months
later and was then kept in hospital for a period of six weeks. On
release from hospital he went to live in an area he did not know,
relations between him and his uncle having become strained.
On 20 January 1984, the applicant was convicted of murder by
Stafford Crown Court and sentenced to life imprisonment. The applicant
pleaded not guilty. The trial judge recommended a tariff of 12 years
with which the Lord Chief Justice agreed. The Secretary of State
decided that the tariff should be 15 years. No recommendation for
deportation was made by the Court. The applicant only became aware of
these tariff periods in February 1994 after the change in policy
resulting from the judgment in the House of Lords in R v Secretary of
State for the Home Department ex parte Doody ([1993] 3 All ER 92).
On 6 June 1990 the Secretary of State took a decision to make a
deportation order against the applicant pursuant to section 3(5)(b) of
the Immigration Act and to make directions for his removal to India.
The Home Office Explanatory Statement of 27 September 1990 set out the
applicant's history and details of the crime. It concluded:
"The [applicant] is 25 years old and has spent the latter half
of his life in the United Kingdom. The only relatives the
[applicant] has in the United Kingdom are his 2 brothers and
their families and his uncle with whom he is not on good terms.
However, in India he has a paternal grandmother, with whom the
United Kingdom family maintain contact and 2 married aunts. The
[applicant] himself is unattached.
The [applicant] was specifically asked by the Immigration Officer
at an interview on 1 March 1990 to put forward any compassionate
factors he wished to be considered. He said that he was young
when he committed the crime and had never been in trouble before.
He was in good health. He would have nowhere to live in India.
There appeared to be no reason to believe however that the
[applicant] could not adapt to life in India, where he had a
number of relatives, upon his release.
In view of the extreme seriousness of the offence of which the
[applicant] had been convicted, and having regard to all the
relevant circumstances, including those set down in paragraph 164
of HC 388, the Secretary of State did not consider that
circumstances of a sufficiently compassionate nature prevailed
in the [applicant's] case. He therefore decided it would be
conducive in the public good to deport the [applicant]
..........and to give directions for his removal to India."
On 8 November 1991, the applicant's appeal from that decision was
heard by the Immigration Appeal Tribunal. The Tribunal considered inter
alia the Social Enquiry Report of the applicant's probation officer who
had been involved in the applicant's case since his trial and heard
evidence from her. She considered that the applicant should be
permitted to stay in the United Kingdom for the following reasons:
a) at the time of the murder the applicant had just been discharged
from hospital and was vulnerable;
b) he was now significantly older and his emotions appeared stable,
c) he had made good use of his time in prison,
d) he had lived in the United Kingdom, initially with his aunt and
uncle and more recently in prisons, since the age of 12 and had
adopted the way of life in the United Kingdom and had very little
knowledge of an Indian lifestyle other than childhood memories,
e) in view of his history of suicide attempts, deportation could
seriously undermine his progress and leave him in a very
vulnerable position,
f) he had been reunited with the members of his extended family in
the United Kingdom and would be able to work with his brothers
in their business in Scotland,
g) on release he would be subject to life licence and there would
be no difficulties enforcing the requirements of the licence.
She and the Governor of the prison both expressed the view that
the chance of the applicant re-offending was remote and that the
applicant would not be a risk in the future. Further, she specifically
disagreed with the emphasis in the Home Office Explanatory Statement
placed on the number of relatives the applicant had in India. She
stated that apart from his aged grandmother there were only two aunts
who were both married and with whom it would not be appropriate for him
to go and live since, according to Sikh community rules, they had
become part of their husbands' families.
On 31 January 1992, his appeal was rejected. The Tribunal found
that when the public interest was balanced against the compassionate
circumstances of the case, deportation was the right course on the
merits.
An application for judicial review was lodged in August 1992 and
leave was granted in November 1992. On 13 April 1994 the application
was refused. The Court found that the Immigration Tribunal's findings
were not inappropriate or inadequately expressed, that it had come to
the conclusion that, in view of the crime that the applicant had
committed, his deportation was appropriate and that its reasoning
process was not flawed.
On 1 March 1995 the Court of Appeal refused leave to appeal.
Relevant domestic law
Section 3(5) of the Immigration Act 1971 provides
"(b) A person who is not a (British citizen) shall be liable to
deportation from the United Kingdom if the Secretary of State
deems his deportation to be conducive to the public good."
An appeal from that decision can be brought before the
Immigration Appeal Tribunal under section 15(7)(a) of the Immigration
Act 1971 and must be determined in accordance with section
19(1)(a)(ii). That provision provides that the appeal is to be allowed
where it is found that:
"...the decision or action involved the exercise of a discretion
by the Secretary of State [and]....that the discretion should
have been exercised differently."
The Immigration Appeal Tribunal considered the appeal in the
light of paragraphs 167 and 164 of HC 251 (1990) which provide as
follows:
"167. The Secretary of State has the power to deport a person
if he deems it conducive to the public good. General rules about
the circumstances in which deportation is justified on these
grounds cannot be laid down, and each case will be considered
carefully in the light of the relevant circumstances known to the
Secretary of State including those listed in paragraph 164.
164. 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 connection 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 representation received on the person's behalf."
COMPLAINTS
1. The applicant complains about the decision of the Secretary of
State to increase his tariff period by three years, which he only
became aware of in February 1994. He claims that it was arbitrary
and/or perverse, in that the Secretary of State increased the tariff
without the benefit of the relevant psychiatric and medical evidence
and that this rendered his detention unlawful under Article 5
para. 1(a) of the Convention.
The applicant further claims that he is detained for the purposes
of deportation as laid down in Article 5(1)(f) and therefore has a
right under Article 5 para. 4 of the Convention to have the lawfulness
of his detention determined by a court.
2. The applicant complains that his deportation would constitute a
violation of his right to respect for his family and private life as
guaranteed by Article 8 of the Convention. He claims that he has no
immediate relations to turn to in India whereas he has two brothers and
an uncle in the United Kingdom.
3. Finally the applicant complains that he is being deprived of the
full benefit of a vocational training whilst in prison because the
prison authorities feel that such training would be of no use to him
in India. He invokes Article 2 of Protocol No. 1 of the Convention.
THE LAW
1. The applicant complains about the decision of the Secretary of
State to increase the tariff period that he has to serve before he can
be released from 12 years to 15 years. He claims that his detention
cannot be lawful within the meaning of Article 5 para. 1(a)
(Art. 5-1-a) since the tariff period was increased arbitrarily. He
further complains that he is now detained under Article 5(1)(f)
(Art. 5-1-f) and is therefore entitled to certain guarantees, such as
the right to a review by a court.
Article 5 (Art. 5) provides so far as relevant:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
a. the lawful detention of a person after conviction by
a competent court;
f. the lawful arrest or detention of a person to prevent
his effecting an unauthorised entry into the country or of a
person against whom action is being taken with a view to
deportation or extradition.
4. Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful."
The Commission recalls that under English law, in cases of
mandatory life-sentences, the release of the prisoner is entirely a
matter within the discretion of the Secretary of State who is not bound
by the judicial recommendation as to the length of the tariff period.
The guarantee of Article 5 para. 4 (Art. 5-4) of the Convention is
considered to be satisfied by the original trial and appeal proceedings
and confers no additional right to challenge the lawfulness of
continuing detention (see Eur. Court H.R. Wynne judgment of 18 July
1994, Series A no. 294A, pp. 14-15 paras. 35-36).
The Commission recalls that the applicant was convicted of murder
and sentenced to mandatory life imprisonment and that he is still
serving that sentence. Accordingly, there are no new circumstances
that entitle the applicant to a review of his continued detention under
the original mandatory life sentence.
In view of the above, the decision of the Secretary of State to
increase the tariff period cannot render the applicant's continued
detention under the original mandatory life sentence unlawful.
Insofar as the applicant claims that he is now being detained for
the purpose of deportation and not pursuant to his conviction for
murder, the Commission does not consider this to accord with the facts
as submitted by the applicant. The applicant was convicted in 1984 and
sentenced to life imprisonment, the judge set a tariff period of 12
years and the Secretary of State increased it to 15 years. The
earliest date for discharge would therefore be 1999, (or 1998 as the
applicant has himself in fact submitted). The Commission concludes
that the applicant is still being detained pursuant to his conviction
for murder, and that the detention is therefore lawful within the
meaning of Article 5 para 1(a) (Art. 5-1-a) of the Convention.
It follows that this part of the application must be dismissed
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant complains that his expulsion from the United
Kingdom would constitute a violation of his right to respect for his
private and family life guaranteed by Article 8 (Art. 8) of the
Convention.
Article 8 (Art. 8) of the Convention provides:
"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."
The Commission recalls that while Article 8 (Art. 8) of the
Convention does not in itself guarantee a right to enter or remain in
a particular country, issues may arise where a person is excluded or
removed from a country where his close relatives reside or have the
right to reside (see Eur. Court H.R. Moustaquim judgment of 18 February
1991, Series A no. 193, p. 18, para. 36, No. 9478/81, Dec. 8.12.81,
D.R. 27, p. 243, No. 27275/95 Dec. 28.6.95, (unpublished)).
In view of the approach taken below, the Commission does not find
it necessary to determine whether there has in fact been an
interference in the applicant's private or family life and for the
purposes of this decision will assume that to be the case.
The Commission recalls that an interference in an applicant's
right to respect for his private or family life can be justified if it
is in accordance with the law, pursues a legitimate aim, is necessary
in a democratic society and proportionate.
The deportation order was made pursuant to section 3(5) of the
Immigration Act 1971. The legality of the expulsion has been reviewed
by the Immigration Appeal Tribunal and the High Court in Judicial
Review proceedings. There is no indication, nor is it alleged, that
the deportation order is not in accordance with the law.
The Commission considers that the expulsion pursued the
legitimate aim of public safety, the prevention of disorder or crime
or the protection of the rights and freedoms of others, within the
meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
The Commission considers that the nature of the offence committed
and the severity of the penalty imposed are essential elements to be
taken into account when determining whether the decision to expel the
applicant was proportionate (see Bouchelkia v. France, Comm. Report
6.9.95, para. 52).
The Commission recalls that the applicant was convicted of murder
and that the Secretary of State gave significant weight to the severity
of the crime when deciding whether to deport him. The Immigration
Appeal Tribunal and the High Court considered that the Secretary of
State had been justified in giving such weight to the severity of the
crime and did not consider that compassionate circumstances raised by
the applicant outweighed that factor. The Commission further notes that
the penalty imposed for the crime was mandatory life imprisonment and
that the tariff period was first set at 12 years and then increased by
the Secretary of State to 15 years, an indication that there were few,
if any, mitigating factors in the applicant's favour as regards the
circumstances of the crime.
The Commission further recalls that the applicant only arrived
in the United Kingdom from India at the age of 12 years and appears to
still be able to speak the language of his childhood. Further, while
he has two brothers in the United Kingdom, he has an aged grandmother
and two aunts in India. He is single and has no children.
Taking into account the margin of appreciation accorded to States
in the area of immigration (see Berrehab judgment of 21 June 1988.,
Series A no. 138, p. 15, para. 28.) the Commission considers that, in
view of the extreme seriousness of the crime and the weakness of his
family ties in the United Kingdom, the deportation of the applicant can
be considered as a proportionate measure and so necessary in a
democratic society for the prevention of disorder or crime and public
safety (see Chorfi v. Belgium, Comm. Report 21.12.95, para 49,
Bouchelkia v. France, Comm. Report 6.9.95, para. 52).
This part of the application must therefore also be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant complains that he is being deprived of a right to
vocational training whilst in prison and invokes Article 2 of
Protocol No, 1 (P1-2). That Article provides:
"No person shall be denied the right to education. In the
exercise of any functions which it assumes in relation to
education and to teaching, the State shall respect the right of
parents to ensure such education and teaching in conformity with
their own religious and philosophical convictions."
The Commission notes that the applicant has merely alleged that
he is being deprived of the full benefit of a vocational training
whilst in prison because the prison authorities feel that such training
would be of no use to him in India. No details of what courses have
been applied for or which have been refused have been given. Even
assuming therefore that Article 2 of Protocol No. 1 (P1-2) could apply
to education in prisons and that there are no domestic remedies to
exhaust, the complaint is entirely unsubstantiated.
It follows that this part of the complaint must also be rejected
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy