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FOURTH
SECTION
CASE OF A.W. KHAN v. THE UNITED KINGDOM
(Application
no. 47486/06)
JUDGMENT
STRASBOURG
12 January 2010
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of A.W. Khan v. the
United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 8 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 47486/06) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by
a Pakistani national, Mr Abdul Waheed Khan (“the
applicant”), on 17 November 2006.
- The
applicant was represented by Mr M. Malik of Malik Laws Solicitors, a
lawyer practising in Manchester. The United Kingdom Government (“the
Government”) were represented by their Agent, Ms H. Moynihan
of the Foreign and Commonwealth Office.
-
The applicant and the Government each filed observations on the
admissibility and merits of the case (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The facts of the case, as
submitted by the parties, may be summarised as follows.
- The applicant was born in
1975 in Pakistan. He entered the United Kingdom
on 5 October 1978, when he was three years old, as a dependant of his
father. He was granted indefinite leave to remain. He was educated in
the United Kingdom and spent his formative years there.
- On an unidentified date in 1993
he was found guilty of the theft of an insurance document. On an
unidentified date in 1998 he was fined following a conviction for the
use of a forged banker's draft.
- On 22 January 2003 he was
convicted by a Crown Court of involvement in the importation of a
class A controlled drug. The conviction related to the attempted
importation of 2.5 kilograms of heroin with an estimated street value
of GBP 210,470.00. The applicant pleaded guilty. In his sentencing
remarks the judge noted that he was not the principal in the criminal
activity but concluded that he was a “knowledgeable, able and
willing assistant”. He was sentenced to seven years'
imprisonment but he was released on 3 April 2006 because of his good
conduct in prison.
- On 2 May 2006 the Secretary of
State for the Home Department served on the applicant a notice of
decision to make a deportation order pursuant to section 3 (5) of the
Immigration Act 1971. The Secretary of State regarded as particularly
serious those offences involving violence, sex, arson and drugs.
Therefore, in view of the nature and severity of the applicant's
offence, the Secretary of State concluded that his removal from the
United Kingdom would be necessary in a democratic society for the
prevention of disorder and crime and for the protection of health and
morals.
- The applicant appealed to an
Immigration Judge. He indicated that he had been in the United
Kingdom since he was three years old and was not familiar with the
culture in Pakistan. All of his immediate family were in the United
Kingdom. His mother and his siblings were all in poor health and he
was the main person who kept the house clean. His mother had diabetes
and a heart condition. His siblings suffered from asthma and/or
eczema. The applicant suffered from ulcerative colitis for which
he received treatment in the United Kingdom. He therefore submitted
that his removal would be disproportionate in the circumstances and
would violate his rights under Article 8 of the Convention.
- On 9 August 2006 an Immigration
Judge dismissed the applicant's appeal against the deportation order.
He agreed that the applicant's deportation would be conducive to the
public good and that the crime he had committed was sufficiently
serious to warrant deportation. With regard to the applicant's family
life in the United Kingdom, he found that it did not go beyond the
natural ties of affection. In particular, he noted that the family
had managed to cope without the applicant while he was in prison. He
also found that the applicant would be able to adapt to life in
Pakistan. He relied on the fact that he was an unemployed, single man
of 28 years of age who, apart from having ulcerative colitis, was in
good health. It was accepted that he could speak Punjabi. Moreover,
the Immigration Judge observed that the medical evidence suggested
that the applicant's attendance at hospital for treatment of his
ulcerative colitis had been inconsistent and he could therefore
continue to attend hospital sporadically in Pakistan.
- On 22 August 2006 the Asylum and
Immigration Tribunal made no order on his application for
reconsideration. A Senior Immigration Judge noted that the applicant
had been sentenced to seven years' imprisonment for his involvement
in the importation of heroin and the Tribunal was entitled to find
that this was a very serious matter and sufficiently serious of
itself to warrant deportation.
- On 8 November 2006 the High
Court dismissed his application for reconsideration of the
Immigration Judge's decision as it did not disclose any arguable
error of law and an appeal would have no real prospect of success.
- On
4 August 2008 the applicant's representative wrote to the
Home Office, indicating that the applicant had been receiving
death threats from one of his co-defendants in the drugs offence. The
co-defendant was believed to be living in Pakistan. The applicant
therefore submitted that if returned there was a real risk that his
life would be in danger. He further submitted that in view of his
mother's ill health, if he were deported then in all likelihood he
would not see her again.
- On
11 September 2008 the Secretary of State for the Home Department
advised the applicant that he would not consider the new
representations as a fresh claim for asylum. In particular, the
Secretary of State noted that the late asylum claim damaged the
applicant's credibility as the first threatening phone call was
allegedly received in 2006.
- In a letter dated 13 November
2008 the applicant advised the Court that his British girlfriend was
pregnant and due to give birth to their child on 16 December 2008. He
submitted a statement by his girlfriend, in which she confirmed that
she was pregnant and stated that she had been in a relationship with
the applicant since August 2005. On 16 April 2009 the applicant
advised the Court that his girlfriend had given birth to a baby girl.
He subsequently submitted a birth certificate, which named him as the
father.
II. RELEVANT DOMESTIC LAW
- Section 3(5)(a) of the
Immigration Act 1971 (as amended by the Immigration and Asylum Act
1999) provides that a person who is not a British citizen shall be
liable to deportation from the United Kingdom if the Secretary of
State for the Home Department deems his deportation to be conducive
to the public good. Sections 82(1) and 84 of the Nationality,
Immigration and Asylum Act 2002 provide for a right of appeal against
this decision on the grounds, inter
alia, that the decision is
incompatible with the Convention.
- Section 2 of the Human Rights
Act 1998 provides that, in determining any question that arises in
connection with a Convention right, courts and tribunals must take
into account any case-law from this Court so far as, in the opinion
of the court or tribunal, it is relevant to the proceedings in which
that question has arisen.
- The
Rules relating to the revocation of a deportation order are contained
in paragraphs 390 to 392 of the Immigration Rules HC 395
(as amended), supplemented by Chapter 13 of the Immigration
Directorates Instructions (“IDIs”). There is no specific
period after which revocation will be appropriate although Annex A to
Chapter 13 of the IDIs gives broad guidelines on the length of time
deportation orders should remain in force after removal. Cases which
will normally be appropriate for revocation 3 years after
deportation include those of overstayers and persons who failed to
observe a condition attached to their leave, persons who obtained
leave by deception, and family members deported under section 3(5)(b)
of the Immigration Act 1971. With regard to criminal conviction
cases, the normal course of action will be to grant an application
for revocation where the decision to deport was founded on a criminal
conviction which is now “spent” under section 7(3) of the
Rehabilitation of Offenders Act 1974. Paragraph 391 of the Rules,
however, indicates that in the case of an applicant with a serious
criminal record continued exclusion for a long term of years will
normally be the proper course. This is expanded on in Annex A to
Chapter 13 of the IDIs, which indicates that revocation would not
normally be appropriate until at least 10 years after departure for
those convicted of serious offences such as violence against the
person, sexual offences, burglary, robbery or theft, and other
offences such as forgery and drug trafficking.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
19. The applicant complained that the
decision to deport him violated his right to respect for his family
and private life under Article 8 of the Convention. Article 8 reads
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.”21. The
Government contested that argument.
- The
Government contested that argument.
A. Admissibility
- The Court notes that this
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
The parties' submissions
- The applicant complained that in
assessing the proportionality of deportation the domestic
decision-makers wrongly separated out the factors weighing in his
favour before concluding that no one factor outweighed the severity
of the criminal offence. Instead, the applicant submitted that the
decision-makers should have weighed all of the factors together and
then determined whether cumulatively they led to the conclusion that
deportation would be disproportionate.
- The applicant identified the
factors weighing in his favour as first, his conduct since
conviction; secondly, the closeness of his family ties; and thirdly,
the length of his residence in the United Kingdom.
- The applicant was released from
prison on 3 April 2006. Although he was rearrested on 4 May 2006, he
was later released on bail on 16 June 2006. The applicant
had committed no further offences since his release. Moreover, a
report prepared by his probation officer indicated that he was a
model prisoner and the risk of re-offending was low.
- The applicant further submitted
that he had always lived with his mother and two brothers, all of
whom were in ill-health. His mother suffered from diabetes, a heart
condition and chronic obstructive airway disease. His brothers both
suffered badly from asthma and eczema, and one also suffered from
depression. The applicant submitted that this created a relationship
of dependency between him and his mother and brothers. He argued
that the Asylum and Immigration Tribunal's finding that his family
coped very well while he was in prison was completely unfounded. His
mother in fact suffered a mild heart attack and he was concerned that
his deportation would exacerbate her heart condition and perhaps even
cause another heart attack. Moreover, as his brothers did not work
his family would not be able to visit him in Pakistan, even if their
health permitted them to.
- The applicant recently advised
the Court that he had a British girlfriend and that she had given
birth to their daughter in December 2008. He remains resident in his
family home with his mother and siblings. It is a condition of his
bail that he resides at that address. He visits his girlfriend and
their baby on a daily basis but returns to the family home in the
evening to sleep.
- Finally, the applicant
reiterated that he moved to the United Kingdom when he was three
years old and he no longer recalled precisely which part of Pakistan
his family originated from. He had not returned to Pakistan and no
longer had any close relatives or any social, cultural or family ties
there. His father's brother lived in the United Kingdom and all
of his mother's siblings had died.
- The Government accepted that the
applicant's deportation would interfere with his right to respect for
his private life. They submitted, however, that the main focus of the
applicant's private life was his mother and siblings and there was no
evidence to suggest he had any deeper ties within the community. As
the applicant and his siblings were all adults, the Government
contended that the family life limb of Article 8 was not engaged.
They further contended that there was no evidence of true dependency
between the applicant and his mother and brothers, as the family
coped without him while he was in prison.
-
The Government submitted that the decision to deport the applicant
was proportionate to the legitimate aims pursued, namely, the
protection of health and morals and the prevention of disorder and
crime. The Government relied on the Court's jurisprudence, which
had recognised the serious nature of drugs offences and found that
they were capable of justifying “great firmness” on the
part of the State (El Boujaïdi v. France, 26 September
1997, Reports of Judgments and Decisions 1997 VI;
Baghli v. France, no. 34374/97, ECHR 1999 VIII;
Dalia v. France, 19 February 1998, Reports of
Judgments and Decisions 1998 I).
- In
view of the severity of the applicant's offence, his lack of a family
life in the United Kingdom and the lack of any real dependency in his
relationship with his mother and brothers, the Government submitted
that there could be no suggestion that a fair balance was not struck
by the domestic decision makers.
2. The Court's assessment
(a) Was there an interference with the applicant's
right to respect for his family and private life?
- The
Government have accepted that the applicant's deportation would
interfere with his private life as reflected in his relationship with
his mother and brothers, and the Court endorses this view.
The Court also recalls that, as
Article 8 also protects the right to establish and develop
relationships with other human beings and the outside world and can
sometimes embrace aspects of an individual's social identity, it must
be accepted that the totality of social ties between settled migrants
such as the applicants and the community in which they are living
constitutes part of the concept of “private life” within
the meaning of Article 8. Regardless of the existence or otherwise of
a “family life”, and having regard to the considerable
period of time he has lived in the United Kingdom, the expulsion of
the applicant would therefore constitute an interference with his
right to respect for his private life. The Court recalls that it will
depend on the circumstances of the particular case whether it is
appropriate for the Court to focus on the “family life”
rather than the “private life” aspect (see Maslov
v. Austria [GC], no. 1638/03, ECHR
2008 § 63).
- In
immigration cases the Court has held that there will be no family
life between parents and adult children unless they can demonstrate
additional elements of dependence (Slivenko
v. Latvia [GC], no. 48321/99, § 97,
ECHR 2003 X; Kwakye-Nti
and Dufie v. the Netherlands (dec.),
no. 31519/96, 7 November 2000). The Court does not accept that
the fact that the applicant was living with his mother and brothers,
or the fact that the entire family suffered from different health
complaints, constitutes a sufficient degree of
dependence to result in the existence of family life. In particular,
the Court notes that in addition to his two brothers, the applicant
also has three married sisters who live in the United Kingdom. It
does not, therefore, accept that the applicant is necessarily the
sole carer for his mother and brothers. Moreover, while his mother
and brothers undoubtedly suffer from health complaints, there is no
evidence before the Court which would suggest that these conditions
are so severe as to entirely incapacitate them.
- The
applicant has only recently informed the Court that he was in a long
term relationship with a British citizen. In November 2008 he
informed the Court that his girlfriend was pregnant and was due to
give birth in December. In April 2009 the applicant informed the
Court that his girlfriend had given birth to a baby girl.
- It is clear from the Court's case-law that children
born either to a married couple or to a co-habiting couple are ipso
jure part of that family from the moment of birth and that family
life exists between the children and their parents (see Lebbink v.
the Netherlands, no. 45582/99, § 35, ECHR
2004 IV). Although co-habitation may be a requirement for such a
relationship, however, other factors may also serve to demonstrate
that a relationship has sufficient constancy to create de facto
family ties (Kroon and Others v. the Netherlands, 27
October 1994, § 30, Series A no. 297 C).
Such factors include the nature and duration of the parents'
relationship, and in particular whether they had planned to have a
child; whether the father subsequently recognised the child as his;
contributions made to the child's care and upbringing; and the
quality and regularity of contact (see Kroon, cited above,
§30; Keegan v. Ireland, 26 May 1994, § 45,
Series A no. 290; Haas v. the Netherlands,
no. 36983/97, § 42 ECHR 2004 I and Camp
and Bourimi v. the Netherlands, no. 28369/95, § 36,
ECHR 2000 X).
- In
the present case the Court notes that the applicant and his
girlfriend have been in a relationship since August 2005; the
applicant has recognised his daughter and is named as the father on
her birth certificate; although the conditions of his bail prevent
the applicant from living with his girlfriend and their daughter, he
has contact with them on a daily basis. The Court therefore
finds that the relationship has sufficient constancy to create de
facto family ties.
- Accordingly,
the Court accepts that the measures complained of interfered with
both the applicant's “private life” and his “family
life”. Such interference will be in breach of Article 8 of
the Convention unless it can be justified under paragraph 2 of
Article 8 as being “in accordance with the law”, as
pursuing one or more of the legitimate aims listed therein, and as
being “necessary in a democratic society” in order to
achieve the aim or aims concerned.
(b) “In accordance with the law”
- It
is not in dispute that the impugned measure had a basis in domestic
law, namely section 3(5)(a) of the Immigration Act 1971 (as amended
by the Immigration and Asylum Act 1999).
(c) Legitimate aim
- It
is also not in dispute that the interference served a legitimate aim,
namely “the prevention of disorder and crime” and “the
protection of health or morals”.
(d) “Necessary in a democratic society”
- The
principal issue to be determined is whether the interference was
“necessary in a democratic society”. The relevant
criteria that the Court uses to assess whether an expulsion measure
is necessary in a democratic society have recently been summarised as
follows (see Üner v. the Netherlands [GC],
no. 46410/99, §§ 57 - 58, ECHR 2006 ...):
“57. Even if Article 8 of the
Convention does not therefore contain an absolute right for any
category of alien not to be expelled, the Court's case law amply
demonstrates that there are circumstances where the expulsion of an
alien will give rise to a violation of that provision (see, for
example, the judgments in Moustaquim v. Belgium, Beldjoudi v.
France and Boultif v. Switzerland, [cited above]; see also Amrollahi
v. Denmark, no. 56811/00, 11 July 2002; Yılmaz v. Germany,
no. 52853/99, 17 April 2003; and Keles v. Germany, 32231/02, 27
October 2005). In the case of Boultif the Court elaborated the
relevant criteria which it would use in order to assess whether an
expulsion measure was necessary in a democratic society and
proportionate to the legitimate aim pursued. These criteria, as
reproduced in paragraph 40 of the Chamber judgment in the present
case, are the following:
- the nature and seriousness of the offence
committed by the applicant;
- the length of the applicant's stay in the
country from which he or she is to be expelled;
- the time elapsed since the offence was
committed and the applicant's conduct during that period;
- the nationalities of the various persons
concerned;
- the applicant's family situation, such as
the length of the marriage, and other factors expressing the
effectiveness of a couple's family life;
- whether the spouse knew about the offence
at the time when he or she entered into a family relationship;
- whether there are children of the marriage,
and if so, their age; and
- the seriousness of the difficulties which
the spouse is likely to encounter in the country to which the
applicant is to be expelled.
58. The Court would wish to make explicit two
criteria which may already be implicit in those identified in the
Boultif judgment:
- the best interests and well-being of the
children, in particular the seriousness of the difficulties which any
children of the applicant are likely to encounter in the country to
which the applicant is to be expelled; and
- the solidity of social, cultural and family
ties with the host country and with the country of destination.”
- The Court reiterates that
in view of the devastating effects of drugs on people's lives, it
understands why the authorities show great firmness with regard to
those who actively contribute to the spread of this scourge (Dalia
v France, cited above, § 54; Bhagli v France, cited
above, § 48). The applicant's offence was particularly
serious as it involved the importation of a significant quantity of
heroin. The severity of the offence is reflected in the fact that the
applicant was sentenced to seven years' imprisonment, taking account
of his decision to plead guilty at a very early stage. The severity
of this offence must therefore weigh heavily in the balance.
- Nevertheless, the Court must also take into account
the fact that the applicant had not previously committed any serious
criminal offences in the United Kingdom, and has committed no further
offences following his release in June 2006. Under the approach taken
in the Boultif judgment (cited above, §51), the fact that
a significant period of good conduct has elapsed following the
commission of the offence necessarily has a certain impact on the
assessment of the risk which the applicant poses to society.
- As regards the applicant's
private life, the Court accepts that the applicant has lived most of
his life in the United Kingdom, having arrived there at the age of
three, and no longer has any real social, cultural or family ties to
Pakistan. The applicant has not returned to Pakistan, even for a
short visit, and he has no immediate family in Pakistan.
- In the United Kingdom the
applicant has established close ties with his mother and two
brothers, with whom he has lived for most of his life. The
relationship clearly entails an additional degree of dependence which
results from the relative ill-health of all of the parties. Although
there is no evidence to suggest that the family would not be able to
cope without the applicant, his removal would likely cause greater
difficulties than would otherwise be the case.
- With regard to the applicant's family life, the Court
notes that the applicant has submitted that he and his girlfriend are
in a stable relationship, and although they cannot live together as a
family unit, the applicant enjoys regular contact with his girlfriend
and their daughter. The applicant's girlfriend is a British citizen,
who states that she has never lived anywhere other than the United
Kingdom. She does not speak Urdu or Punjabi and has no family or
friends in Pakistan. The applicant's girlfriend has therefore
indicated that she would not be prepared to move to Pakistan if he
were to be deported, although no circumstances have been identified
which would inherently preclude her from living there.
- Although the Court has no reason to doubt the
applicant's claims, it observes that he has not sought to make fresh
representations to the Home Office on the basis of his family life.
In particular, the Court notes that despite making fresh
representations to the Home Office in August 2008, the applicant did
not mention that he had a pregnant girlfriend even though he must
have known of the pregnancy at the time.
- Moreover, the Court notes that the applicant's
relationship with his girlfriend began in August 2005, while he was
still serving his prison sentence. She was therefore fully aware of
his criminal record at the beginning of the relationship.
- Accordingly, no
decisive weight can be attached to this family relationship.
- The Court must also have regard to the duration of the
deportation order. Although the Immigration Rules do not set a
specific period after which revocation would be appropriate, it would
appear that the latest the applicant would be able to apply to have
the deportation order revoked would be ten years after his
deportation.
- Finally, the Court notes that while the applicant has
not formally complained under Articles 2 or 3 of the Convention, he
recently has indicated that he believes his life would be at risk on
return to Pakistan as he has been receiving death threats from a
co-defendant believed to be in Pakistan. The applicant has submitted
no evidence capable of substantiating this claim and the Court is
persuaded by the domestic authorities' finding that the failure to
mention the threats, which allegedly began in 2006, at an earlier
stage severely damaged the applicant's credibility.
- In light of the above, having particular regard to the
length of time that the applicant has been in the United Kingdom and
his very young age at the time of his entry, the lack of any
continuing ties to Pakistan, the strength of his ties with the United
Kingdom, and the fact that the applicant has not reoffended following
his release from prison in 2006, the Court finds that the applicant's
deportation from the United Kingdom would not be proportionate to the
legitimate aim pursued and would therefore not be necessary in a
democratic society.
- There
would accordingly be a violation of Article 8 of the Convention if
the applicant were deported to Pakistan.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention
provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- In recognition of the severity
of the offence of which he was found guilty, the applicant did not
seek an award in damages.
B. Costs and expenses
- The applicant claimed GBP
1,609.37 in respect of legal costs and expenses.
- The Government had no comments
on the applicant's claim.
- According to the Court's
case-law, an applicant is entitled to the reimbursement of costs and
expenses only in so far as it has been shown that these have been
actually and necessarily incurred and were reasonable as to quantum.
In the present case, regard being had to the information in its
possession and the above criteria, the Court considers it reasonable
to award the total sum claimed.
C. Default interest
- The Court considers it
appropriate that the default interest should be based on the marginal
lending rate of the European Central Bank, to which should be added
three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares
the application admissible;
2. Holds that
there would be a violation of Article 8 of the Convention in the
event of the applicant's deportation;
3. Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,750 (one
thousand seven hundred and fifty euros), plus any tax that may be
chargeable, in respect of costs and expenses, to be converted into
British Pounds at the rate applicable at the date of settlement, plus
any tax that may be chargeable to the applicant
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 12 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
