EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 16152/90
Ahmed LAMGUINDAZ
against
the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 13 October 1992)
TABLE OF CONTENTS
page
I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . 1-2
(paras. 1-18)
A. The application (paras. 2-4). . . . . . . . . . . . . . . 1
B. The proceedings (paras. 5-13) . . . . . . . . . . . . . . 1
C. The present Report (paras. 14-18) . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS. . . . . . . . . . . . . . . . . 3-5
(paras. 19-31)
A. Particular circumstances of the case. . . . . . . . . . 3-4
(paras. 19-28)
B. Relevant domestic law and practice. . . . . . . . . . . 4-5
(paras. 29-31)
III. OPINION OF THE COMMISSION . . . . . . . . . . . . . . . . . 6-9
(paras. 32-53)
A. Complaints declared admissible. . . . . . . . . . . . . . 6
(para. 32)
B. Points at issue (para. 33). . . . . . . . . . . . . . . . 6
C. Article 8 of the Convention . . . . . . . . . . . . . . 6-8
(paras. 34-49)
D. Article 14 in conjunction with . . . . . . . . . . . . . 9
Article 8 of the Convention
(paras. 50-51)
E. Recapitulation (paras. 52-53) . . . . . . . . . . . . . . 9
Partly concurring partly dissenting opinion . . . . . . . . . . 10-11
of Mr. H.G. Schermers
APPENDIX I History of the proceedings . . . . . . . . . . . .12
APPENDIX II Decision on the admissibility. . . . . . . . . 13-17
of the application
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is Ahmed Lamguindaz, a Moroccan citizen born in
1967 and resident in Morocco. He is represented by
Mr. Richard Poynter, a solicitor of Messrs. Sinclair, Taylor and
Martin, London.
3. The application is directed against the United Kingdom. The
respondent Government are represented by their Agent,
Mrs. Audrey Glover of the Foreign and Commonwealth Office.
4. The case concerns the applicant's complaint that he was deported
from the United Kingdom. It raises issues under Articles 8 and 14 of
the Convention.
B. The proceedings
5. The application was introduced on 6 February 1990 and registered
on 12 February 1990.
6. On 15 February 1990, the Commission decided to give notice of the
application to the respondent Government and invite them to submit
observations on the admissibility and merits.
7. The Government submitted their written observations on
30 May 1990. The applicant submitted his written observations in reply
on 15 September 1990.
8. On 7 September 1990, the Commission granted legal aid to the
applicant.
9. On 5 September 1991, the Commission decided to invite the parties
to a hearing on the admissibility and merits of the application.
10. At the hearing, which was held on 17 February 1992, the applicant
was represented by Mr. Richard Drabble, Counsel, and by
Mr. Richard Poynter, Solicitor. The Government were represented by
Mrs. Audrey Glover as Agent, Mr. David Pannick, Counsel, and
Ms. S. Weston and Mrs. G. Griffith, Advisers.
11. On 17 February 1992, the Commission declared the application
admissible.
12. The parties were then invited to submit any additional
observations on the merits of the application.
13. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. In the light of the parties' reactions, the Commission
now finds that there is no basis on which a friendly settlement can be
effected.
C. The present Report
14. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NORGAAARD, President of the Commission
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
Mr. M.P. PELLONPÄÄ
15. The text of the Report was adopted by the Commission on
13 October 1992 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
16. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
17. A schedule setting out the history of the proceedings before the
Commission is attached hereto as APPENDIX I and the Commission's
decision on the admissibility of the application as APPENDIX II.
18. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
19. The applicant was born in Morocco in 1967. He arrived in the
United Kingdom in or about 1974 to join his father who had settled
there. His mother and three brothers and sisters also moved to the
United Kingdom. Two further children were born to the family. The
applicant's parents were granted indefinite leave to remain in the
United Kingdom in 1974. The applicant was not brought up speaking
Arabic at home, had difficulties understanding that language and could
not read or write it.
20. The applicant spent a period of up to six months in Morocco in
1981 on holiday with his family.
21. The applicant has a lengthy criminal record, reaching back to
1981 and comprising largely minor offences of dishonesty, but also
certain offences involving violence. The offences for which he was
convicted were:
-1981: burglary of property valued at £ 70 (2 year supervision
order), handling £ 100 of stolen money (2 year supervision order)
and theft of a pedal cycle (£ 20 fine);
-1982: theft of a pedal cycle (conditional discharge), burglary
(3 months at a detention centre), burglary (a further 3 months
at a detention centre) and grievous bodily harm and actual bodily
harm (conditional discharge);
-1983: going equipped for burglary (care order), occasioning
actual bodily harm (borstal training), assault on the police
(conditional discharge and a fine) and burglary (conditional
discharge and £ 200 compensation order);
-1984: evading a rail fare (£ 10 fine) and carrying an offensive
weapon (community service order);
-1985: theft, actual bodily harm and offering to supply heroin
( 2 year probation order) and burglary (further 2 year probation
order).
22. On 17 May 1985, the applicant was convicted of wounding. On
19 February 1986, referring to the conviction for wounding, the
Secretary of State decided to make a deportation order against the
applicant on the ground that such an order was "conducive to the public
good".
23. The applicant appealed against the decision to make a deportation
order to the Immigration Appeal Tribunal, on the ground that all his
family lived in the United Kingdom, and that he had no relatives in
Morocco. Moreover, he spoke no Arabic, would not be able to live in
Morocco and could not find any employment. In its decision of
9 June 1986 (notified on 28 July 1986), the Tribunal accepted that the
applicant had difficulty in making himself understood in Arabic, and
realised that he would not have an easy task in making his way in
Morocco. It also noted that the applicant had expressed regret at his
part in the offence, and that he was prepared to change his life style.
However, the Tribunal recalled that the applicant had failed to take
any notice of a Home Office warning in 1983 that he could be deported
if he continued his criminal activities, and doubted whether he would,
in fact, refrain from his criminal course. It found, when balancing
the public interest against the compassionate circumstances of the
case, that deportation was the right course on the merits. The appeal
was dismissed.
24. A deportation order was signed on 22 October 1986.
25. The applicant's application for leave to apply for judicial
review of the Immigration Appeal Tribunal's decision was dismissed.
26. In July 1987, prior to notification of the deportation order, the
applicant was arrested in connection with the supply of drugs. While
on bail in this connection, the applicant was taken by his father to
Morocco in February 1988. The applicant's father took the applicant's
passport and abandoned him there in an attempt to keep the applicant
out of trouble with the police. The applicant's sister eventually
found him living in Morocco in squalid circumstances and she took him
back to England in September 1989.
27. The applicant was arrested in November 1989 following his
voluntary surrender to the police and held in custody until
7 February 1990, when he was convicted of the charge of supplying
cannabis in respect of which he had been arrested in July 1987. He was
sentenced
to three months' imprisonment suspended for 2 years. He was
immediately re-arrested at the Court and detained at Chelsea Police
Station pending the arrival of the immigration officers to execute the
deportation order. The deportation order was served on 8 February 1990
and the applicant was deported on 12 May 1990 to Tangier.
28. He has since remained in Morocco and has received financial
support from his mother.
B. Relevant domestic law and practice
29. By section 3(5)(b) of the Immigration Act 1971:
"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."
30. Paragraphs 156 and 159 of the Immigration Rules which were
applicable in 1986 explain the considerations the Secretary of State
will have in mind when deciding whether to deport a person who is
liable to deportation. They provide as follows:
"156. 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 connections 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 representations received on the person's behalf."
"159. 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 156."
31. By virtue of section 15 (1)(a) of the 1971 Act, a person may
appeal to an adjudicator (and from him or her to the Immigration Appeal
Tribunal) against a decision of the Secretary of State to make a
deportation order against him by virtue of section 3(5). A decision
by virtue of section 3 (5)(b) is subject to a full, substantive right
of appeal.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
32. The Commission declared admissible the applicant's complaint that
his deportation to Morocco from the United Kingdom was in breach of
Articles 8 and 14 (Art. 8, 14) of the Convention.
B. Points at issue
33. The following are the points at issue in the present case:
- whether the applicant's deportation from the United Kingdom to
Morocco constitutes a violation of his right to respect for his
private and family life within the meaning of Article 8 (Art. 8) of
the Convention, and
- whether the applicant has been discriminated against on the ground
of nationality contrary to Article 14 of the Convention in
conjunction with Article 8 (Art. 14+8) of the Convention.
C. As regards Article 8 (Art. 8) of the Convention
34. 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."
35. The applicant complains that his deportation from the United
Kingdom to Morocco contravened the above provision.
36. The Commission recalls in the first place that, while it is clear
that no right of an alien to enter or to reside in a particular
country, nor a right not to be expelled from a particular country is
as such guaranteed by the Convention (see for example, Application
No. 9203/80, Dec. 5.5.81, D.R. 24 p. 239), it has also repeatedly
stated that, in view of the protection of the right to respect for
family life afforded by Article 8 (Art. 8), the expulsion of a person
from a country in which his immediate family is resident may give rise
to issues under this provision of the Convention (Application
No. 9478/81, Dec. 8.12.81, D.R. 27 p. 243).
37. The Commission has given consideration first to whether there
were real and effective family ties between the applicant and his
family which attract the protection of the above provision. The
Government have contended that prior to the deportation the applicant
had intended to move out of the family home and that he had lived in
Morocco for a period in 1981 and from February 1988 to September 1989.
In these circumstances, the Government submit that the deportation did
not interfere with the applicant's private or family life.
38. The Commission notes, however, that the applicant had lived in
the United Kingdom with his family from about 1974 and that he had no
family or friends in Morocco. Though it appears that the applicant's
relationship with his father was problematic, viz. his father abandoned
him in Morocco in February 1988, his continued close relationship with
his family is evidenced by the fact that his sister went to Morocco to
find and bring him back and also by the financial assistance given to
him by his mother since his deportation order. The Commission
therefore finds that the deportation order constituted an interference
with the applicant's right to respect for his family life. It is
unnecessary to examine whether at the same time it constituted an
interference with his private life.
39. According to constant case-law, an interference with the right
to respect for family life entails a violation of Article 8 (Art. 8)
of the Convention unless it was "in accordance with the law", had an
aim or aims that is or are legitimate under Article 8 para. 2
(Art. 8-2) and was "necessary in a democratic society" for the
aforesaid aim or aims (see, inter alia, Eur. Court H.R., W. v. the
United Kingdom, judgment of 8 July 1987, Series A no. 121, p. 27,
para. 60 (a)).
40. As regards "in accordance with the law", the Commission notes
that the deportation order was made by the Secretary of State pursuant
to the provisions of the Immigration Act 1971. The applicant has not
alleged that the measure was in any way unlawful. As to the aims
pursued by the deportation order, the Government submit that the
decision was a legitimate measure of immigration control taken for the
prevention of disorder and crime. The applicant has not put this
matter in issue and the Commission sees no reason to doubt that this
was the purpose of the measure.
41. The Commission accordingly considers that the deportation order
was "in accordance with the law" and pursued the legitimate aim of the
prevention of disorder and crime.
42. It remains to be examined whether the deportation order was
"necessary in a democratic society" for the above aim. The case-law
of the Commission and the Court establishes that the notion of
necessity implies that the interference corresponds to a pressing
social need and in particular that it is proportionate to the
legitimate aim pursued (Eur. Court H.R., Berrehab judgment of
21 June 1988, Series A no. 138, pp. 15-16, para. 28).
43. Further, in determining whether an interference is necessary, the
Commission and the Court will take into account that a margin of
appreciation is left to the Contracting States, which are in principle
in a better position to make an initial assessment of a given
interference. In this context, the Court has stated that it does not
"in any way underestimate the Contracting States' concern to maintain
public order, in particular in exercising their right, as a matter of
well-established international law and subject to their treaty
obligations, to control the entry, residence and expulsion of aliens"
(see Eur. Court H.R., Moustaquim judgment of 18 February 1991, Series A
no. 193 p. 19, para. 43).
44. The Commission and Court have already examined issues comparable
to those in the present application in the above case of Moustaquim
(loc. cit.) and in the Beldjoudi case (Eur. Court H.R., judgment of
26 March 1992, Series A no. 234-A) and have found that the deportation
of the applicants was not justified under the above principles. In
each case, regard was had to the circumstances and background of the
applicant - in particular, the ties of the applicant with the deporting
country - in assessing whether the authorities had achieved a just
balance between the seriousness of the interference with the
applicant's right to respect for his family life and the public
interest in the prevention of disorder.
45. As regards the seriousness of the interference in this case, the
Government have submitted that the applicant had spent a not
inconsiderable time in Morocco by the date of his deportation and that
he thereby had links with that country. The Commission recalls however
that the applicant had lived in the United Kingdom from an early age,
that his close relatives all live in the United Kingdom and that he had
received his education there. Until he was abandoned there in 1988 the
applicant had no real links with Morocco or acquaintance with its
culture or language. Although he is legally an alien, his family and
social ties are therefore in the United Kingdom and his nationality
status does not reflect his actual position in human terms.
46. In these circumstances, the Commission finds that the deportation
constitutes such hardship that only in exceptional circumstances could
it be justified as proportionate to the aim pursued under Article 8
para. 2 (Art. 8-2).
47. In this connection, the Government have pointed to the
applicant's long history of criminal offences and his failure to heed
a warning to change his ways. The Commission notes, however, that
while the applicant has a history of committing minor offences, his
criminal record is in fact less serious than that of the applicant in
the Beldjoudi case, who had been sentenced to a term of 8 years
imprisonment for aggravated theft and shorter than that of the
applicant in the Moustaquim case who had a criminal record of a very
large number of offences (loc. cit.). Further, though prior to his
deportation the applicant was convicted of a drugs offence he received
a comparatively light sentence, suspended, which seems to indicate that
the Court did not consider the crime to merit the imposition of an
immediate custodial sentence.
48. In light of the above, the Commission considers that the
applicant's deportation was not proportionate to the legitimate aim
pursued and is thus in violation of Article 8 (Art. 8) of the
Convention.
Conclusion
49. The Commission concludes, by 13 votes to 1, that there has been
a violation of Article 8 (Art. 8) of the Convention.
D. As regards Article 14 in conjunction with
Article 8 (Art. 14+8) of the Convention
50. In view of the finding in para. 48 above, however, the Commission
does not consider it necessary also to examine the complaint that the
applicant, as a result of his deportation, suffered discrimination
contrary to Article 14 (Art. 14) in the enjoyment of his right to
respect for his family life (Eur. Court H.R., Beldjoudi judgment, loc.
cit).
Conclusion
51. The Commission concludes, by 13 votes to 1, that it is
unnecessary to decide whether there has been a violation of Article 14
(Art. 14) of the Convention.
E. Recapitulation
52. The Commission concludes by 13 votes to 1, that there has been
a violation of Article 8 (Art. 8) of the Convention (para. 49 above).
53. The Commission concludes by 13 votes to 1, that it is unnecessary
to decide whether there has been a violation of Article 14 (Art. 14)
of the Convention (para. 51 above).
Secretary to the Commission President to the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Partly concurring partly dissenting opinion of Mr. H.G. Schermers
As regards Article 8 of the Convention
I agree with the majority of the Commission that the expulsion
of the applicant constitutes a violation of Article 8 of the
Convention. As I explained in my concurring opinion in the case of
Beldjoudi (No. 12083/86, Comm. Rep. 6.9.90) I would prefer to decide
this kind of case on the basis of private life rather than of family
life. In the present case, however, the elements of family life are
of such a decisive nature that it is fully justified to base the
reasoning on this aspect, even though the applicant has reached the age
of 25.
With respect to the reasoning, I venture one remark. The
majority of the Commission refer (see para. 43) to the following
comment by the Court:
"The Court does not in any way underestimate the Contracting
States' concern to maintain public order in particular in
exercising their right as a matter of well-established
international law and subject to their treaty obligations, to
control the entry, residence and expulsion of aliens". (Eur.
Court H.R., Moustaquim judgment of 18.2.91, Series A No. 193 -
para. 43)
I fully agree with the Court that there is well-established
international law granting States full control over entry of aliens.
I am not so sure, however, whether international law concerning the
expulsion of aliens is not changing fundamentally as a result of
growing concern for human rights and of a perceived need for solidarity
among States in the face of increasing interstate relations. By
admitting aliens to their territory States inevitably accept at least
some measure of responsibility. This responsibility weighs even more
heavily in the case of children educated in their territory. For any
society, individuals like the present applicant are a burden. Even
independent of human rights considerations, I doubt whether modern
international law permits a State which has educated children of
admitted aliens to expel these children when they become a burden.
Shifting this burden to the State of origin of the parent is no longer
so clearly acceptable under modern international law. It is at least
subject to doubt whether a host country has the right to return those
immigrants who prove to be unsatisfactory.
As regards Article 14 in conjunction with Article 8 of the Convention
With respect to Article 14 of the Convention, the case-law of the
Court in previous cases is not entirely clear. In the Moustaquim case
it was held that there was no breach of Article 14 of the Convention
as the applicant could not be compared to Belgian juvenile delinquents
(A 193, p. 20); in the Beldjoudi case the Court found it unnecessary
to examine the complaint under Article 14 of the Convention in view of
the fact that the deportation of Mr. Beldjoudi would violate Article 8
(A 234 A, para. 81). In the present case the Commission followed
Beldjoudi as the more recent case of the Court. I nonetheless have
some difficulty in accepting this solution. Discrimination is a
separate infringement and should be independently evaluated. Even
though the present applicant has no United Kingdom nationality, he may
well be compared to United Kingdom nationals in the context of
punishment for a specific crime.
I agree with the respondent Government that States are fully
entitled to limit the number of non-nationals entering their territory.
However, by admitting non-nationals governments undertake to grant them
as much as possible the same treatment as nationals. This follows from
a number of obligations prohibiting discrimination on the ground of
national origin.
Over the years, the Commission has received a large number of
complaints from aliens who have been convicted of criminal acts,
punished and subsequently expelled. In their applications, they
claimed that they were punished more heavily for the same acts than
nationals, the latter not receiving the additional punishment of
expulsion once their prison sentences had been served.
The Commission has consistently held that expulsion is an
administrative act and therefore cannot be considered additional
punishment.
In my opinion this approach is too formalistic. In reality
expulsion is often a more heavy punishment than a prison sentence. In
many cases it totally upsets the life of the person concerned. In my
opinion therefore, expulsion following a prison sentence, should be
seen as an additional punishment. If this addition is not compensated,
for example, by a lower prison sentence, the alien is more heavily
punished than the national and this, in my view, constitutes a
violation of Article 14 in conjunction with Article 8 of the
Convention.
Appendix I
HISTORY OF THE PROCEEDINGS
Date Item
________________________________________________________________
06.02.90 Introduction of the application
12.02.90 Registration of the application
Examination of admissibility
15.02.90 Commission's decision to invite the Government to
submit observations in writing.
30.05.90 Government's observations
07.09.90 Commission's grant of legal aid
15.09.90 Applicant's reply
05.09.91 Commission's decision to invite the parties to a
hearing
17.01.92 Hearing on the admissibility and merits.
Examination of the merits
17.02.92 Commission's deliberations on the merits
04.07.92 Consideration of the state of proceedings
13.10.92 Commission's deliberations on the merits, final votes
and adoption of the Report
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