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)