Saleem v. the United Kingdom



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