AS TO THE ADMISSIBILITY OF

Application No. 13718/88
by C.
against the United Kingdom


        The European Commission of Human Rights sitting in private on
15 July 1988, the following members being present:

                MM.  C.A. NØRGAARD, President
                     S. TRECHSEL
                     E. BUSUTTIL
                     G. JÖRUNDSSON
                     A.S. GÖZÜBÜYÜK
                     A. WEITZEL
                     J.C. SOYER
                     H.G. SCHERMERS
                     H. DANELIUS
                     G. BATLINER
                     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 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 25 February
1988 by C. against the United Kingdom and registered on 22 March 1988
under file No. 13718/88;

        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 Tanzania, born in 1957 and resident in
B., England.  He is a grocer / off-licence proprietor by profession.  He is
represented before the Commission by Messrs.  Thakrar & Co., Solicitors,
Southall.

        The facts of the case as submitted by the applicant, and which
may be deduced from the documents submitted in support of the
application, may be summarised as follows:

        The applicant arrived in the United Kingdom on 23 October 1976
to settle there with his parents.  His father is a British Protected
Person and his mother an Indian national.  The family left Tanzania
allegedly under some persecution as East African Asians, the father
being unable, as a British Protected Person, to obtain an extension of
his trading permit from the Tanzanian authorities.  The applicant and
his family were given indefinite leave of entry.

        The applicant lives with and partially supports his parents.
His mother works away from home during the week and his father lives
with his son all the time as he is in poor health.  He provides
limited assistance to the applicant in his work.  The applicant is the
joint-owner of a grocery / off-licence business with his mother and
has paid the mortgage on his house.  He has some savings with which
the family hope to move to another town after selling the business.

        On 1 September 1979 the applicant married an Indian citizen
who had been allowed to enter the United Kingdom as his fiancée.  On
14 August 1980 a daughter was born to the couple.  The daughter has
British nationality by virtue of her birth on United Kingdom
territory.  The applicant's wife was granted indefinite leave of entry
on 29 July 1982.  The couple became estranged and apparently separated
in February 1983.

        On returning from a visit to India on 20 November 1982 the
applicant, accompanied by another woman, was arrested by HM customs at
London Heathrow Airport for being in possession of approximately 10
kilos of cannabis resin which had an estimated value of £20,000.  They
were both prosecuted.

        On 21 March 1984 the applicant was convicted for illegal
importation of cannabis and sentenced to 30 months' imprisonment.  He
submits that his role in the offence was only that of courier, that
the drug was not a dangerous one like heroin, that there is no danger
of him re-offending, that he himself is not a drug user and that he
has no other criminal convictions.

        During his imprisonment the applicant was well-behaved and
became reconciled with his wife.  The whole family now live together
and a second child, a son, was born on 30 November 1986.

        On 6 February 1985 the Home Secretary made a deportation order
against the applicant under Section 3(5)(b) of the Immigration Act
1971, the applicant's deportation back to Tanzania being deemed
"conducive to the public good".

        The Home Office explanatory statement (dated 9 May 1985) to
the Immigration Appeal Tribunal stated as follows:

        "The Secretary of State carefully considered the appellant's
        position in the United Kingdom.  The appellant had been
        convicted of being involved in the illegal importation of a
        large quantity of cannabis, with a street value of £20,000,
        and had been sentenced to 30 months' imprisonment.  The
        appellant was 27 years old and was of an age where he could
        be expected to make a life for himself in Tanzania.  He had
        spent the formative years of his life in Tanzania, coming
        to the United Kingdom in 1976 when he was nineteen years old.
        The appellant had been in employment prior to his conviction;
        and his parents were settled in the United Kingdom.  The
        appellant's marriage had not subsisted prior to his conviction
        and although the appellant claimed to have been reconciled
        with (his wife) he had also maintained contact with (his
        co-accused).  The appellant's wife was an Indian national
        who had spent the formative years of her life in India
        (where her parents still resided) and had only come to the
        United Kingdom in August 1979 at the age of 18; moreover her
        daughter was only four years old and was of an age where she
        could be expected to adapt to life in her father's country
        should the parents intend to live together in the future.
        There were no known compassionate factors in his favour other
        than these family ties to outweigh the gravity of his offence.
        Having regard to all the relevant factors, including those
        set out in paragraph 156 of HC 169 (Immigration Rules), the
        Secretary of State decided that in view of the appellant's
        conviction and the nature and amount of the drugs involved
        it would be conducive to the public good to deport the
        appellant."

        The relevant part of paragraph 156 of the Statement in Changes
in Immigration Rules HC 169 provides as follows:

        "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..."

        Paragraph 159 of HC 169 deals generally with the Secretary of
State's powers to deport for reasons conducive to the public good,
even where, as in this case, there has been no court recommendation to
deport.  It provides that the Secretary of State must take into
account all the relevant circumstances of the case including those
listed in the aforementioned paragraph 156.

        On 21 June 1985 the Immigration Appeal Tribunal dismissed the
applicant's appeal against the deportation order for the following
reasons:

        "We have carefully considered the evidence and the manner in
        which (the Home Secretary's) discretion should be exercised,
        having particular regard to the matters set out in paragraph
        156 (Immigration Rules).  In our view there are undoubtedly
        compassionate circumstances in this case, in that the
        appellant has strong family connections here by reason of his
        parents, his daughter and his wife with whom he is now said
        to be reconciled.  We also recognise that a return to Tanzania
        must be a highly unpleasant prospect for him to face, and
        that life will not be easy there.  Nevertheless the offence
        of which he was convicted involved a large amount of cannabis
        resin and was in our view of an extremely serious nature.  In
        our opinion the compassionate circumstances do not outweigh
        the consideration of public interest in this case, and this
        appeal is dismissed."

        No reference is made in the Tribunal decision to the
applicant's submissions under Article 8 (Art. 8) of the Convention which had
been put before the Tribunal.

        The applicant sought judicial review of the Tribunal's
decision on the grounds, inter alia, that there had been a failure to
take into account Article 8 (Art. 8) of the Convention.  The application for
leave to move for judicial review was refused by a single judge of the
High Court on 4 October 1985.  On 29 January 1986 the Court of Appeal
overturned that decision and granted leave.  Back before the High
Court on 28 January 1987 Mr.  Justice Taylor held, after reviewing the
relevant Convention case-law, including the case of Mmes Abdulaziz,
Cabales and Balkandali v. the United Kingdom (Eur.  Court H.R.,
judgment of 28 May 1985, Series A No. 94), and the relevant domestic
case-law on the effects of the Convention, that "the extent to which
the Convention is relevant or may be used is to assist in interpreting
our statute law if there is ambiguity or doubt.  What it certainly
cannot do is override or replace or provide a test under our
legislation where our legislation is perfectly clear".  He found no
allegation in the applicant's case that Section 3 of the Immigration
Act 1971 was ambiguous.  Moreover, he also found no evidence that the
Immigration Appeal Tribunal, despite their silence on the point, did
not anyway take into account the applicant's submissions under Article
8 (Art. 8) of the Convention as "representations received on the person's
behalf" pursuant to paragraph 156 of the Statement in Changes in
Immigration Rules HC 169.

        Mr.  Justice Taylor concluded his judgment as follows:

        "Finally, I would say that on the factual background to this
        case, if one looks at the decision of the tribunal and its
        review of the evidence, there are certainly grounds upon
        which it would be perfectly reasonable to uphold the
        decision of the Secretary of State.  This was a case not of
        some minor drug offence, being in possession of a small
        amount of drugs or even being in possession of it with intent
        to supply.  This was a serious case of the importation of a
        large quantity of cannabis.  Clearly the object must have been
        commercial.  There is an interest of the highest importance in
        demonstrating not merely to the person concerned but more
        importantly to others who might be minded to act as couriers
        that an offence of that character may carry a very severe
        penalty indeed.  In this case it carried a penalty of 30
        months' imprisonment, but it was considered by the Secretary
        of State that it was also one which justified deportation.
        Even if one looks at the criteria of the Article (Article 8 of
        the Convention) (Art. 8) itself, one can well see that the facts here
        could justify applying the exception that this was a
        deportation necessary for the prevention of crime and for
        the protection of health.  Certainly I would not be
        prepared to hold that a decision to that effect was one
        which no reasonable Secretary of State, or as the decision
        which is challenged here makes more relevant, one which no
        reasonable tribunal could have reached.

        For all those reasons this application must be dismissed."

        An appeal against this latter decision to the Court of Appeal
was dismissed on 30 October 1987 for broadly similar reasons, adding
that the applicant could derive no legitimate expectation that in his
kind of case the Secretary of State or the Immigration Appeal Tribunal
would have regard to Article 8 (Art. 8) of the Convention.  One of the three
Court of Appeal Judges, Glidewell LJ, also expressed the view that "it
cannot be implied from Section 5 of the Immigration Act 1971 or the
relevant paragraphs of the Immigration Rules that the Convention is
intended to be or is in any way a relevant consideration for the
Secretary of State or the Immigration Appeal Tribunal in the
circumstances of the applicant's case.  As the relevant law displayed
no ambiguities the Immigration Appeal Tribunal was justified, and
indeed obliged, not to refer to the wording of the Convention.

        On 11 February 1988 further leave to appeal to the House of
Lords was refused by the House of Lords Appeal Committee.


COMPLAINTS

        The applicant complains that his proposed deportation from the
United Kingdom to Tanzania is in breach of Articles 8 and 13 (Art. 8,
Art. 13) of the Convention.

        The applicant contends that if he is deported he "will be
permanently separated from his mother and father.  The only country to
which he could realistically go would be Tanzania, but out of his
immediate family circle only he is a Tanzanian national.  There is no
legal obligation on Tanzania to admit either his father (a British
Protected Person) or his mother (an Indian national).  Further the
family left in circumstances of some persecution and it is not
realistic to expect a return by the mother and the father.  The father
is in poor health and dependent upon the applicant as a bread-winner;
if the applicant is removed both parents face old age without a major
part of the family support they have had to date in the United
Kingdom.  The applicant's wife would be placed in an intolerable
position.  She has no contact at all with Tanzania.  The applicant
does not know whether she will be admitted to Tanzania.  The
applicant's daughter is a British citizen and is now aged 7.  The life
of the present, close, extended family will be destroyed if the
applicant is to be removed."

        As regards Article 8 (Art.8) of the Convention the applicant contends
that his family life will be severed as his family cannot follow him
to Tanzania.  His deportation is disproportionate in the
circumstances.  He has led a sober and industrious life with the
exception of the drug offence.  He supports his whole family.
Tanzania is a strange culture to him and a place where he has no
friends or relatives.  His removal would constitute a further
punishment of banishment and is not necessary for the prevention of
crime in the sense of preventing further offences as there is no
evidence that he will ever offend again or that his removal will have
a deterrent effect on potential offenders.  He points out that the
criminal court did not recommend his deportation and that the offence
involved cannabis, not a life threatening drug like heroin.

        The applicant also claims that Article 13 (Art. 13), both read alone
and together with Article 8 (Art. 8), is breached in his case because the
English legal system fails to provide an adequate remedy for the alleged breach
of Article 8 (Art. 8) of the Convention.  The applicant submits that the
domestic court decisions in this case, in particular the opinion of Glidewell
LJ in the Court of Appeal (p. 5 above), reveal that the immigration authorities
are not entitled to take the Convention into account.  They cannot, therefore,
provide an adequate remedy.

        The applicant draws the following conclusions from the
domestic court judgments in his case:

        (i)    the Home Secretary is not entitled to consider whether
removal of an immigrant can be said to be necessary in a democratic
society for the prevention of crime.  The Convention case-law
elucidating the concept is simply irrelevant to his considerations;

        (ii)    it follows that the Home Secretary will never form his
own view as to those measures which can properly be said to be a
proportionate response to a pressing social need;

        (iii)   the Convention cannot have any role at all in changing
the mind of an administrator, because he is not allowed to look at it;

        (iv)    there is no mechanism for giving effect to a decision
of the Strasbourg Court without primary legislation; if the Secretary
of State cannot have regard to the Convention, he equally cannot have
regard to a judgment of the Court, which has no force other than that
conferred by the Convention itself.

        The applicant contends that inherent in the concept of an
adequate remedy under Article 13 (Art. 13) is the ability to draw to the
attention of the relevant domestic authority the possibility that a
given administrative action might create a breach of the Convention
and should be avoided or reversed for that reason.  The ability to do
so was denied the applicant and in the present state of English law
cannot be granted to anyone complaining of the manner of exercise of a
statutory discretion, whether in immigration or any other field.

        It is further submitted that the operation of United Kingdom
domestic law, as it must take place following the Court of Appeal
decision herein, is inimical to the proper functioning of the
Convention.  The essence of the concept of a "margin of appreciation"
is that domestic authorities themselves consider the matters in the
light of Convention obligations, and provide, if necessary, material
by which the Commission and the Court can judge whether or not the
relevant exercise of administrative discretion falls within the margin
of appreciation.  If the domestic authorities cannot look at the
Convention, this exercise cannot be undertaken.

THE LAW

1.      The applicant has complained that his proposed deportation
from the United Kingdom to Tanzania is in 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
parents, wife and children have indefinite leave to reside in the
United Kingdom (his eldest child is a British citizen).  However, the
applicant has been convicted of a serious drugs' offence which,
according to the British Immigration authorities, render his
deportation "conducive to the public good", within the meaning of
Section 3(5)(b) of the Immigration Act 1971.  These authorities have
carefully considered the applicant's family circumstances and the fact
that the applicant and his wife do not have particularly strong ties
with the United Kingdom.  The Commission also notes that the applicant
has not shown that his wife and children would not be entitled to join
him in Tanzania or that his parents could  not manage financially
without him in the United Kingdom if they decided not to follow him
back to Tanzania.  The applicant's mother is employed and has an
income.  She also owns half of the family business.  The Commission
does not find that the deportation decision necessarily involves the
break up of the whole family or that the establishment of a new home
would pose insuperable difficulties for the young couple.

        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, in particular the serious drug offence.
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, (and) for the
protection of health", within the meaning of Article 8 para. 2 (Art. 8-2) of
the Convention.

        It follows that this aspect of the applicant's case is
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.

2.      The applicant has also complained that he had no effective
domestic remedy at his disposal for his Article 8 (Art. 8) complaint.  He
claims thereby to be a victim of a breach of Article 13 (Art. 13) of the
Convention which provides as follows:

        "Everyone whose rights and freedoms as set forth in
        this Convention are violated shall have an effective
        remedy before a national authority notwithstanding that
        the violation has been committed by persons acting in an
        official capacity."

        The Commission refers to the constant case-law of the
Convention organs that "neither Article 13 (Art. 13) nor the Convention in
general lays down for the Contracting States any given manner for
ensuring within their internal law the effective implementation of any
of the provisions of the Convention" (Eur.  Court H.R., Swedish Engine
Drivers' Union judgment of 6 February 1976, Series A No. 20 para. 50).
Thus the Contracting Parties do not have to incorporate the Convention
into the domestic law, but, if they do not, they must give effect to
its substance and provide domestic remedies to enforce effectively the
equivalent rights and freedoms in domestic law (Eur.  Court H.R.,
Lithgow and Others judgment of 8 July 1986, Series A No. 102 para. 205).

        The Commission notes that the Convention is not part of
British domestic law.  However, it does not accept the applicant's
contention that he had no effective domestic remedies before the
British immigration authorities and courts just because they were not
obliged by domestic law to take the provisions of Article 8 (Art. 8) of the
Convention directly into account when examining his case.  The
Commission finds that, in the present case, the examination by the
domestic authorities of whether the applicant's criminal conviction
rendered his deportation "conducive to the public good", pursuant to
Section 3(5)(b) of the Immigration Act 1971, account being taken of
all relevant circumstances, including the compassionate circumstances
arising from his family situation, in substance was a similar exercise
to the examination of whether his deportation was "necessary in a
democratic society ... for the prevention of disorder or crime, (and)
for the protection of health", within the meaning of Article 8 para. 2
(Art. 8-2) of the Convention.  In the light of these considerations, the
Commission concludes that the applicant had an effective remedy for
the purposes of Article 13 (Art. 13) of the Convention in his appeal against
deportation before the independent Immigration Appeal Tribunal, and in
the judicial review of the Tribunal's decision by the High Court and
the Court of Appeal.

        It follows that this aspect of the applicant's case is also
manifestly ill-founded within 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)