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FOURTH
SECTION
CASE OF A.H. KHAN v. THE UNITED KINGDOM
(Application
no. 6222/10)
JUDGMENT
STRASBOURG
20
December 2011
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.H. Khan v. the
United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Nicolas Bratza,
George
Nicolaou,
Ledi Bianku,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 6222/10)
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 Altaf Hussein Khan (“the applicant”),
on 1 February 2010.
2. The
applicant was represented by Malik Legal Solicitors Ltd., a firm of
lawyers practising in Manchester. The United Kingdom
Government (“the Government”) were represented by their
Agent, Mr J. Grainger, of the Foreign and Commonwealth Office.
3. The
applicant alleged that his deportation to Pakistan would violate his
rights under Article 8 of the Convention. He sought interim measures
from the Court under Rule 39 of the Rules of Court, but this
application was refused by the Acting President of the Fourth Section
on 12 February 2010. The applicant was deported to Pakistan on 15
February 2010.
- On
14 October 2010, the Acting
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1971 and lives in
Pakistan. He is the elder brother of the
applicant in the case of A.W. Khan v. the United Kingdom,
no. 47486/06, 12 January 2010.
- The
present applicant appears to have travelled from Pakistan to the
United Kingdom with his family in 1978. He was subsequently granted
indefinite leave to remain in the United Kingdom as the dependant of
his parents. There is some dispute as to whether he remained
continuously in the United Kingdom after his arrival, but it is clear
that he returned to Pakistan at least twice prior to his deportation
and that he married there in 1989. His current marital status and the
whereabouts of his wife are not known.
- The applicant’s mother and siblings still live in
the United Kingdom and are all naturalised British citizens. The
applicant claimed, furthermore, that his mother was in poor health
with diabetes and a heart condition and as such was more than
normally dependent on the applicant and her other children. The
applicant has six children, all of whom were born in the United
Kingdom, by two separate partners. His children are aged between 12
and 17 years. At the time of his deportation, the applicant claimed
to be in a relationship not with either of the mothers of his
children but with a third British citizen, whom he had started seeing
whilst in immigration detention in 2008.
- On 18 February 1992, the applicant was convicted of
having sexual intercourse with an underage female and of two counts
of attempted robbery. He was sentenced to four years’
imprisonment in a young offenders’ institution. On 30 November
1994, he was convicted for the theft of a vehicle and sentenced to
two hundred hours of community service. On 4 January 1996, the
applicant was convicted of driving whilst disqualified and without
insurance and sentenced to twenty weeks’ imprisonment. He was
also disqualified from driving for three years.
- The
applicant appears to have spent three months in Pakistan in 1998. On
19 December 2000, he was convicted of two counts of battery and of
resisting or obstructing a constable, and sentenced to four months’
imprisonment. On 26 January 2001, following a conviction for
dangerous driving and other related offences, the applicant was
sentenced to eighteen months’ imprisonment, disqualified from
driving for a further three years, and disqualified until he passed a
driving test.
- On 5 July 2001, the applicant was convicted of
robbery, for which he was initially sentenced to six years’
imprisonment. The sentence was reduced to five years on appeal. As a
result of this conviction, deportation proceedings against the
applicant commenced and on 22 May 2006, he was notified of the
Secretary of State’s intention to make a deportation order
against him.
- The
applicant did not exercise his right of appeal against the decision
to deport him and the deportation order was signed on 2 October 2006.
The applicant was convicted of a further driving offence in
2006. Directions were set for his removal to Pakistan on 25 June
2008, but cancelled when the applicant sought judicial review. The
judicial review application was withdrawn by consent following
agreement that further consideration would be given to the
applicant’s case on human rights grounds. A decision was made
on 15 October 2008 to refuse to revoke the deportation order but to
grant the applicant an in-country right of appeal against this
decision.
- The
applicant’s appeal was dismissed by the Asylum and Immigration
Tribunal (“the Tribunal”) on 27 January 2009. The appeal
was argued purely on the grounds of Article 8. The Tribunal accepted
that the applicant enjoyed family life in the United Kingdom.
Although there were no insurmountable obstacles to his two partners,
both of whom were of Pakistani origin, and his children accompanying
him to Pakistan, it was accepted that it would be unreasonable to
expect them to do so, given that all were British citizens and the
children had been educated in the United Kingdom. There was little
evidence before the Tribunal as to the impact that the applicant’s
deportation would have on his children, since neither of the two
mothers of his children nor any third party had attended the hearing
to give evidence. In any event, it was noted that the applicant had
not seen any of his children since he had been remanded in custody in
2000, though he claimed to speak to all of them by telephone every
day.
- The
Tribunal did not believe the applicant’s claims not to have
returned to Pakistan since his arrival in the United Kingdom and not
to have married there, since there was evidence to the contrary. It
was not therefore accepted that he had no connections in Pakistan. No
serious difficulty for the applicant in re-establishing himself in
Pakistan was envisaged.
- The
Tribunal accepted that Article 8 would be engaged by the applicant’s
deportation, since he would inevitably be separated from his partners
and children. However, the interference with his family life would be
proportionate, having regard on the one hand to the applicant’s
persistent offending and the high risk he posed to p ublic safety, as
assessed by his probation officer, and, on the other, to the lack of
evidence as to a meaningful relationship between the applicant and
his children over the past eight years.
- An
application for reconsideration of the Tribunal’s decision was
refused on 15 May 2009. Directions were again set for the applicant’s
removal, but cancelled when he claimed asylum on 25 June 2009. The
basis of his claim was that his parents’ families in Pakistan
might seek to harm him because they had disapproved of his parents’
love marriage and their emigration to the United Kingdom; and that
the relatives of three women with whom he had had relationships in
the United Kingdom were also after him. It is not clear who the women
concerned were. His asylum claim was refused on 20 October 2009,
since the applicant had had no direct contact with any of those
persons whom he claimed to fear and it was not believed that any of
them would recognise him, or know that he had returned to Pakistan,
or be able to trace him. In any event, there was found to be a
sufficiency of protection against the actions of non-state actors
available in Pakistan. The applicant’s asylum claim was
certified as clearly unfounded, meaning that he had no further right
of appeal from within the United Kingdom.
- The
applicant made further representations on 16 November 2009 and 13 and
14 January 2010, claiming that he feared his current partner’s
ex-husband, who had recently been deported to Pakistan, and that he
was taking medication, namely methadone and various sleeping tablets,
which would not be available to him once deported. His
representations were rejected on 18 January 2010, as the applicant
had not raised any new issues regarding his fear of return and his
family life had previously been considered by the Tribunal. As to his
concerns regarding his health, there were mental health facilities
available in Pakistan. In any event, the applicant had been assessed
by medical staff at the immigration detention centre as being fit to
fly and had not been noted as having any particular medical problems.
- Directions
were set on 5 January 2010 for the applicant’s deportation to
Pakistan on 20 January 2010. The applicant sought permission to apply
for judicial review of the decision to set removal directions, but
his application was refused by the High Court on 12 February 2010. In
the meantime, the applicant had also sought interim measures from
this Court under Rule 39 of the Rules of Court on 2 February 2010, to
prevent his deportation which had been reset for 15 February 2010.
His application for interim measures was refused on 12 February 2010.
- The
applicant was deported to Pakistan on 15 February 2010.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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 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, inter alia,
on the grounds 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.
- Sections
1(4) and 3(2) of the Immigration Act 1971 provide for the making of
Immigration Rules by the Secretary of State. Paragraph 353 of the
Immigration Rules provides:
“353. When a human rights or asylum claim has been
refused and any appeal relating to that claim is no longer pending,
the decision maker will consider any further submissions and, if
rejected, will then determine whether they amount to a fresh claim.
The submissions will amount to a fresh claim if they are
significantly different from the material that has previously been
considered. The submissions will only be significantly different if
the content:
(i) had not already been considered; and
(ii) taken together with the previously considered
material, created a realistic prospect of success, notwithstanding
its rejection.”
A
fresh claim, if it is accepted as such by the Secretary of State, and
if refused, gives rise to a fresh right of appeal on the merits. If
submissions are not accepted as amounting to a fresh claim, their
refusal will give rise only to a right to seek judicial review of the
decision not to treat them as a fresh claim.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that his deportation to
Pakistan violated Article 8 of the Convention, which 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.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
Merits
The parties’ submissions
a) The applicant
- The
applicant claimed to enjoy family life, as detailed at paragraph 7
above, and private life in the United Kingdom. He relied upon the
fact that the Court had previously found that his younger brother’s
deportation to Pakistan would violate Article 8. He further relied on
the facts that his mother’s poor state of health rendered her
particularly dependent on the applicant and her other children; that
he had six children, all born in the United Kingdom; and that he was
in a relationship with a British citizen.
- The
applicant denied the Government’s contention that it was
unclear when he had entered the United Kingdom and whether he had
remained there continuously until his deportation. He claimed that he
had entered for the first time in 1978 and, in support of this claim,
submitted a photocopy of his mother’s passport, which showed
that she had entered the United Kingdom in 1978 together with her
children, the applicant among them. He further maintained that he had
remained in the United Kingdom since then, except for two visits to
Pakistan: in 1989, when he had entered into an arranged marriage; and
in 1998, when he had stayed for three months.
- The
applicant maintained that he had no ties to Pakistan and no surviving
relatives there. He was not in contact with his wife. He claimed that
since his deportation, he had been accommodated and fed by a local
mosque and was dependent upon charity to obtain money to call his
children in the United Kingdom.
b) The Government
- The
Government accepted that the applicant had enjoyed family and private
life in the United Kingdom prior to his deportation and stated that
it was not in doubt, and had not been contended by the applicant,
that his deportation was anything other than in accordance with the
law and in pursuit of a legitimate aim. As such, the only issue
before the Court was whether the deportation was necessary in a
democratic society.
- In
the view of the Government, the applicant’s deportation was
proportionate to the legitimate aim pursued because his level of
integration into the society of the United Kingdom had not been such
as to outweigh the risk he posed to the public. The applicant’s
case could be distinguished from that of his younger brother for a
number of reasons. Firstly, the applicant’s conviction for
robbery had represented the culmination of a long history of criminal
conduct, and he had gone on to commit further offences after his
release from prison, even in the knowledge that the Secretary of
State was seeking his deportation. By contrast, his younger brother
had committed no serious previous offences prior to his deportation
offence and committed no further offences following his release from
prison (see A.W. Khan v. the United Kingdom, cited
above, § 41). Secondly, as regards the brothers’
respective ties to Pakistan, the present applicant had either arrived
in the United Kingdom at the age of seven, or, on one reading of the
evidence, had first arrived at the age of four but had then returned
to Pakistan where he lived between the ages of seven and eighteen.
His brother, on the other hand, had arrived in the United Kingdom at
the age of three and had remained there since. The present applicant
had, even on his own admission, made at least two visits back to
Pakistan and had married there in 1989. It appeared that the marriage
was still, at least legally, subsisting. He therefore had far closer
ties to his country of origin than his younger brother. Thirdly, as
regards the relative strength of the brothers’ respective ties
to the United Kingdom, the Government pointed out that, while the
present applicant relied on his family ties to his mother and
siblings, he had at no stage produced any evidence of the strength of
these ties, contrary to his younger brother whom the Court had
accepted enjoyed a close relationship, involving an additional degree
of dependence, with his mother. Furthermore, the applicant had not
seen any of his six children since 2000 and had not provided any
evidence to show that his deportation would have a detrimental effect
on any of them. Indeed, given that four of his children had at
various times been classed as “at risk” by social
services due to the applicant’s behaviour towards them and
their mothers, it was considered that the applicant’s children
might well be better off if he were removed from their country of
residence. On the other hand, the applicant’s younger brother
had established that he had a stable relationship with his girlfriend
and their daughter.
- Finally,
the Government pointed out that the Tribunal which heard the
applicant’s appeal against deportation had considered all of
the relevant factors as set out by the Grand Chamber in Üner
v. the Netherlands [GC], no. 46410/99, §§ 57-58, ECHR
2006 XII, and had concluded that in all the circumstances of his
case, his deportation would be proportionate. The Government invited
the Court to uphold this finding.
2. The Court’s assessment
a) General principles
- The
Court recalls that, as Article 8 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 applicant and the community in
which they are living constitutes part of the concept of “private
life” within the meaning of Article 8. Indeed it will be a rare
case where a settled migrant will be unable to demonstrate that his
or her deportation would interfere with his or her private life as
guaranteed by Article 8 (see Miah v.
the United Kingdom (dec.), no.
53080/07, § 17, 27 April
2010). Not all settled migrants will have equally strong family or
social ties in the Contracting State where they reside but the
comparative strength or weakness of those ties is, in the majority of
cases, more appropriately considered in assessing the proportionality
of the applicant’s deportation under Article 8 § 2. 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,
cited above, § 63). However, the
Court has previously held that there
will be no family life between parents and adult children or between
adult siblings 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).
- An interference with a person’s private or
family life will be in breach of Article 8 of the Convention unless
it can be justified under paragraph 2 of that Article 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. The Grand Chamber has summarised the relevant
criteria to be applied, in determining whether an interference is
necessary in a democratic society, at §§ 57-58 of Üner,
cited above, as follows:
- 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.
- 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.
b) Application to the facts of the case
- The
Court notes at the outset that it is not in issue between the parties
that the applicant’s deportation was “in accordance with
the law” and pursued a legitimate aim, namely the prevention of
crime. It only remains, therefore, for the Court to determine whether
it was also “necessary in a democratic” society, in
pursuit of that aim.
- In
so determining, the Court has had regard to the criteria set down by
the Grand Chamber in the case of Üner, cited above, of
which many are relevant to the applicant’s case. The Court will
consider the relevant criteria in turn.
- As
regards, firstly, the nature and seriousness of the offence committed
by the applicant, the Court observes that the offence which gave rise
to the deportation proceedings was a robbery, for which the applicant
was sentenced to five years’ imprisonment. The length of the
sentence clearly reflects the gravity of the crime committed, and the
Court also notes the sentencing judge’s remarks, which
described the manner in which the applicant had frightened and
physically attacked a pregnant woman in her own home. The Court
further notes that this was not the applicant’s first
conviction for a violent offence. Finally, the Court recalls that the
applicant also had a long history of previous offences, as detailed
at paragraphs 8-10 above. The Court takes the view that the offence
which led to the applicant’s deportation, particularly when
viewed against the background of his history of criminal conduct, was
of very considerable seriousness.
- Turning
now to the length of the applicant’s stay in the United
Kingdom, the Court notes that this is a matter of some dispute. The
applicant maintained that he had been in the United Kingdom since the
age of seven and had remained there continuously since, but for two
short visits to Pakistan. The Government, on the other hand, pointed
out that on one reading of the evidence before the Tribunal which
heard the applicant’s appeal against deportation, the applicant
had first entered the United Kingdom in 1975 and had then returned to
Pakistan three years later, where he had remained until re-entering
the United Kingdom after his marriage in 1989. The Court has had
regard to the Tribunal’s findings as to the applicant’s
lack of credibility and willingness to mislead in order to gain an
advantage. However, having also had regard to evidence submitted by
the applicant’s representatives, namely a copy of the
applicant’s mother’s passport, which would tend to
indicate that she and her children, including the applicant, entered
the United Kingdom for settlement in 1978, the Court finds that, on
balance, the applicant lived in the United Kingdom from 1978, when he
was aged seven, returning to Pakistan only for visits. It is
therefore accepted that he has lived in the United Kingdom since an
early age, a factor which means that serious reasons would be
required before his deportation could be found to be proportionate
(see Maslov v. Austria [GC], no. 1638/03, § 75, 23 June
2008).
- However,
as well as the seriousness of the applicant’s crime, the Court
also notes the applicant’s conduct since the commission of the
offence which gave rise to the deportation proceedings against him,
specifically the fact that he was convicted of a further driving
offence in 2006. The Court is of the view that the applicant’s
lapse into re-offending, so soon after his release from prison,
demonstrates that his conviction and lengthy term of imprisonment did
not have the desired rehabilitative effect and that the domestic
authorities were entitled to conclude that he continued to present a
risk to the public. The Court therefore finds that the applicant’s
conduct subsequent to the deportation offence renders all the more
compelling the Government’s reasons for deporting him.
- The
Court must now consider the applicant’s circumstances in the
United Kingdom, with a view to determining whether his family and
private life, and his consequent level of integration into British
society, were such as to outweigh the seriousness of his criminal
history. Looking first at the nationalities of the persons involved,
the Court notes that, unlike the applicant, his mother and siblings
are all now naturalised British citizens. The applicant’s six
children are also British citizens, as are their mothers. Finally,
the applicant claimed to be in a relationship with a British citizen.
The Court notes that, although this relationship apparently began in
2008, the applicant made no mention of this partner at his appeal
hearing in 2009, when both of the mothers of his children were
referred to as his current partners. The applicant appears to have
mentioned his new partner for the first time in representations to
the Secretary of State in November 2009, only a few months before he
was deported. The applicant has not stated whether the relationship
has still subsisted since his deportation. The Court cannot therefore
attach much weight to this relationship, or find that it is a
relationship akin to marriage.
- As
regards the applicant’s relationship with his children and
their mothers, the Court notes that, as predicted by the Tribunal,
neither woman chose to accompany the applicant to Pakistan and both
remain in the United Kingdom with their children. The Court also
notes that the extent of the applicant’s relationship with his
children and their mothers was limited even at the time of his
deportation, given that he had not lived with them since 1999 or seen
the children since 2000. The applicant had not therefore seen his
children in the ten years prior to his deportation and the eldest
child would only have been aged four the last time he or she had seen
his or her father. There was also, as noted by the Tribunal, some
doubt as to whether the applicant fulfilled a positive role in his
children’s lives, given that four of the six had, at various
times, been on the social services’ “at risk”
register. Given the length of time since the applicant last had
face-to-face contact with his children, as a result of his offending
and consequent imprisonment, and the lack of evidence as to the
existence of a positive relationship between the applicant and his
children, the Court takes the view that the applicant has not
established that his children’s best interests were adversely
affected by his deportation.
- Finally,
the Court turns to the question of the respective solidity of the
applicant’s ties to the United Kingdom and to Pakistan. The
Court notes that, unlike his younger brother, the applicant returned
to Pakistan for visits following his arrival in the United Kingdom
and also married there. In the absence of any evidence to the
contrary, the Court assumes that this marriage is still, legally at
least, subsisting. The applicant therefore maintained some level of
connection to his country of origin and was not deported as a
stranger to the country. As regards his ties to the United Kingdom,
the Court has addressed the question of his family life, both with
his parents and siblings and with his various partners and children,
above, and found it to be limited in its extent. Furthermore, the
applicant’s private life in the United Kingdom, as observed by
the Tribunal, has been constrained by his convictions and spells in
prison. Whilst he was mainly educated in the United Kingdom and has
worked, he does not appear to have established a lengthy or
consistent employment history. In short, and despite the length of
his stay, the applicant did not achieve a significant level of
integration into British society. The Court is aware that, as a
settled migrant who spent much of his childhood in the United
Kingdom, serious reasons would be required to render the applicant’s
deportation proportionate (see Maslov, cited above, §
75). However, having regard to his substantial offending history,
including offences of violence and recidivism following the
commencement of deportation proceedings against him, the Court is of
the view that such serious reasons are present in the applicant’s
case. His private and family life in the United Kingdom were not such
as to outweigh the risk he presented of future offending and harm to
the public and his deportation was therefore proportionate to the
legitimate aim of preventing crime. As such, the applicant’s
deportation to Pakistan did not amount to a violation of Article 8.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application
admissible;
- Holds that there has been
no violation of Article 8 of the Convention.
Done in English, and notified in writing on 20 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech
Garlicki Registrar President
