AS TO THE ADMISSIBILITY OF
Application No. 38294/97
by Mohammed SALEEM
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 4 March 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 18 December 1996
by Mohammed SALEEM against the United Kingdom and registered on
22 October 1997 under file No. 38294/97;
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 a Pakistani national, born in 1945 and currently
resident in Rawalpindi, Pakistan. He is represented by Rahman and Co.,
solicitors of Tottenham, London.
The facts of the case, as submitted by the applicant, can be
summarised as follows
A. Particular circumstances of the case
The applicant was born in Rawalpindi, Pakistan and went to the
United Kingdom in 1975. He was given indefinite leave to stay prior to
1990 and applied for British citizenship in 1995.
In January 1977, the applicant was employed in a civilian
capacity by the High Commission of Pakistan as a clerical assistant.
Initially, he worked for the investment centre until January 1978 when
he commenced work for the military accounts section.
The applicant's employment carried no diplomatic status and
involved no activities outside the work of the High Commission itself.
By a letter dated 9 February 1996, the Secretary of State for the
Home Department decided to make an deportation order against the
applicant for reasons of national security, namely, activities
associated with nuclear weapons. A Home Office statement accompanying
the letter outlined the Home Office's views as to the applicant's
activities. It stated that the applicant had acted as a covert
representative for Khan Research Laboratories (KRL) which was involved
in the research, development and covert procurement of nuclear weapons.
The applicant's activities had included seeking to procure equipment
and scientific literature for KRL, administration of KRL sponsored
students in the United Kingdom, arranging letters of credit for KRL and
acting as their agent at the patent office.
The applicant was informed that pursuant to s. 15(3) of the
Immigration Act 1971 he would not be able to appeal the Secretary of
State's decision to deport him. However, he would be able to make
representations before an independent advisory panel where he could not
be legally represented.
On 9 February 1996, the Foreign Office ceased to recognise the
applicant as a member of the Pakistan High Commission, having given
notice to the High Commission that he was not acceptable as provided
by the terms of the Vienna Convention on Diplomatic Relations 1961.
Consequently, the applicant's employers dismissed him.
In his correspondence with the Home Office, the applicant denied
being a covert representative of KRL or carrying out activities
associated with KRL. He emphasised the relatively lowly nature of his
employment at the High Commission.
The applicant requested that he be given more detailed
information concerning the case against him, including the Government's
sources, and, further, that he be allowed legal representation before
the advisory panel and be given the reasons for the panel's decision.
These requests were refused by the Government.
The applicant presented his case to the advisory panel on
4 April 1996. The panel then gave advice, which was not disclosed to
the applicant, to the Home Secretary. As a result of the advice, the
Home Secretary decided on 27 April 1996 that the applicant should be
deported. The decision was served on the applicant on 20 May 1996.
The applicant applied to the High Court on 23 July 1996 for
judicial review of the decision to deport him. The applicant argued
first, that the reasons given for his deportation did not fall within
the ambit of national security and secondly, that the procedure before
the advisory panel was unfair since the applicant was unrepresented and
was not informed precisely of the case against him. The judge rejected
both arguments. He noted that there were public policy reasons as to
why informants should not be identified. He also held that it was a
matter for Parliament to amend the manner in which the advisory panel
operated.
The applicant was then advised by counsel that, although an
appeal could theoretically lie to the Court of Appeal, it would be a
pointless exercise. The applicant, consequently, did not appeal.
The applicant was deported from the United Kingdom in 1996. He
currently lives in Pakistan.
B. Relevant domestic law and practice
Indefinite leave
Under immigration law in the United Kingdom, a person with
indefinite leave to remain has a right to seek and take employment, to
purchase or lease property in which he has a right to reside
indefinitely, and to send his children to school in the United Kingdom.
He is also entitled to state benefits.
Deportation
Section 3(5) of the Immigration Act 1971 provides, insofar as is
relevant:
"A person who is not a British citizen shall be liable to
deportation from the United Kingdom -
(b) if the Secretary of State deems his deportation to be
conducive to the public good
Section 15 of the Immigration Act 1971 provides, insofar as is
relevant:
"(3) A person shall not be entitled to appeal against a
decision to make a deportation order against him if the
ground of the decision was that his deportation is
conducive to the public good as being in the interests of
national security or of the relations between the United
Kingdom and any other country or for other reasons of a
political nature"
COMPLAINTS
The applicant invokes Article 6 para. 1 of the Convention. He
contends that the procedure adopted by the advisory panel, the
Secretary of State's decision to deport him and the Foreign Office's
decision to cease to recognise the applicant as a member of the
Pakistan High Commission all determined his civil rights and
obligations and must therefore be considered within the ambit of
Article 6 para. 1.
The applicant alleges that the procedure before the advisory
panel was in breach of Article 6 para. 1 since he was not permitted
legal representation and was not informed of the details of the
allegations against him nor given the names of the Home Secretary's
informants. He also complains that the decision made by the Home
Secretary violated Article 6 para. 1 as he was not informed that the
decision was being made, could not make representations, was not
provided with the details of the allegations against him and was not
entitled to appeal the decision. As regards the Foreign Office
decision, the applicant contends again that he was not informed of the
details of the allegations against him and could neither make
representations nor appeal the decision.
THE LAW
The applicant has complained that he was denied a fair hearing
in terms of the manner in which the decision to deport him was taken
by the Home Secretary, the Foreign Office's decision to cease
recognising him as a member of the Pakistani High Commission and his
ability to present his case before the advisory panel.
Article 6 para. 1 (Art. 6-1) of the Convention provides in its
first sentence:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair and public hearing within a reasonable time by an
independent and impartial tribunal..."
The Commission notes that its case-law has held that the right
of an alien to reside in a particular country is a matter governed by
public law and that proceedings relating to deportation, expulsion or
asylum fall outside the scope of Article 6 para. 1 (Art. 6-1), as not
concerning any determination of civil rights or obligations.
Accordingly it has been previously held that in such cases the State
is not required to grant a hearing conforming to the requirements of
Article 6 para. 1 (Art. 6-1) (see No. 7729/76, Dec. 17.12.76, D.R. 7,
p. 164; No. 8118/78, Dec. 19.3.81, D.R. 25, p. 105 and No. 9990/92,
Dec. 15.5.94, D.R. 39, p. 119).
The applicant has argued however that since he had been given
indefinite leave to remain in the United Kingdom the Secretary of State
was precluded from imposing any condition restricting employment. In
addition, he argues that the deportation order resulted in loss of
employment with its concomitant financial implications. Further because
the allegations made against him by the Home Secretary were all linked
to his employment at the High Commission, the deportation decision can
be seen to be directly decisive of his private law rights of contract
of employment.
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention has been held to apply where the subject matter of
proceedings is "pecuniary" in nature and is founded on an alleged
infringement of rights which are likewise pecuniary, or where the
outcome of the proceedings is directly decisive for private rights and
obligations (see eg. Eur. Court HR, Balmer-Schafroth and others v.
Switzerland judgment of 26 August 1997, Reports 1997-IV, No. 43). While
the deportation decision had an obvious effect upon his employment
since it resulted in his dismissal, the Commission notes that
deportation orders will frequently have an impact upon a deportee's
pecuniary interests. It considers that the applicant's loss of
employment was a secondary and indirect result of the deportation
order.
The Commission therefore finds that the applicant's complaints
do not fall within the ambit of Article 6 para. 1 (Art. 6-1) and that
therefore this application must be rejected as incompatible ratione
materiae pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy