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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> EAST AFRICAN ASIANS v UNITED KINGDOM - 4403/70 [1973] ECHR 2 (14 December 1973)
URL: http://www.bailii.org/eu/cases/ECHR/1973/2.html
Cite as: [1973] ECHR 2, 3 EHRR 76, (1981) 3 EHRR 76, [1981] 3 EHRR 76
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- Following the Commission's decisions on the admissibility of these cases, the first point now at issue is the question whether the United Kingdom authorities violated the applicants' rights under Article 3 - either alone or in conjunction with Article 14 -
- Having considered the merits of the applications, the Commission now finds that 1; Article 3, and only in so far as it prohibits "degrading treatment", is relevant in :- connection and it therefore proposes to examine whether the above actions of the United Kingdom authorities constituted such treatment.
- In discussing the point at issue under Article 3, the Commission further proposes to distinguish between two groups of cases:
- Article 3 of the Convention provides inter alia that no one shall be subjected to "degrading treatment".
- : The respondent Government reply that the refusal of entry, or the grant of a limited right of residence, cannot be regarded as violating Article 3, particularly as no right to enter one's own country is guaranteed by the Convention or the First Protocol.
- In its decision of 10 October 1970 on the admissibility of the applications in Group I [6], the Commission, when dealing with the applicants' above complaint observed that "no right to enter and reside in a particular country is as such guaranteed by the Convention"; further, that Article 3 para. 2 of the Fourth Protocol to the Convention, which has not been ratified by the United Kingdom, provides that "no one shall be deprived of the right to enter the territory of the State of which he is a national"; and that the aim of the Fourth Protocol, as stated in its preamble, is to ensure the collective enforcement of certain rights and freedoms "other than those already included in Section I of the Convention". The Commission concluded that "no right for a person to enter, in particular, the territory of the State of which he is a national is as such guaranteed by the Convention or by the First Protocol".
- In this connection, the Commission did not expressly discuss the general question whether the refusal of a right which is not itself protected by the Convention could nevertheless in certain circumstances violate another right already included in this treaty. However, by admitting the present applications both under Article 3 and under other provisions of the Convention, the Commission impliedly accepted that the finding of such a violation was not excluded.
- The Commission now confirms this view. It refers in this connection to its case law concerning the right of asylum and the right of an alien not to be expelled. Although neither of these rights is guaranteed by the Convention [7], the Commission has nevertheless found that the Contracting Parties agreed to restrict the free exercise of their powers under general international law, including the power to control the entry and exit of aliens, to the extent and within the limits of the obligations which they assumed under this treaty [8]. In certain exceptional circumstances, the deportation of a person may thus be contrary to the Convention and, in particular, constitute "inhuman treatment" within the meaning of Article 3 thereof.[9]
- The Commission finds that the above considerations concerning the position of aliens apply, mutatis mutandis, to the present applications brought by citizens. It concludes that, although the right to enter one's country is not protected by the Convention, the refusal of this right may, in certain special circumstances, nevertheless violate quite independently another right already covered by this treaty. It follows that in the present cases, the Commission is not being called upon to consider the rights of
- In its interpretation of the term "degrading treatment", the Commission will proceed in accordance with the relevant rules of customary law as stated in Articles 31 to 33 of the Vienna Convention on the Law of Treaties. It refers in this connection to the general observations made in paragraph 44 of its Report of 1 June 1973 in No. 4451/70, Golder v. United Kingdom, Eur. Court H.R., Series B no. 16, pp. 33-34.
- As a general definition of the term "degrading treatment", the applicants submit that the treatment of a person is degrading "if it lowers him in rank, position, reputation or character, whether in his own eyes or in the eyes of other people".[12]
- The Government suggest a further limitation: they submit that the term "degrading treatment" must be interpreted as referring to physical acts only.
- The Commission considers that such interpretation of "degrading treatment" would be too restrictive. Even in the case of torture and inhuman treatment, such a physical element is not essential.
- As regards, further, the general question whether Article 3 of the Convention should be interpreted restrictively, the Commission points out that a restrictive interpretation of the individual rights and freedoms guaranteed by the European Convention on Human Rights would be contrary to the object and purpose of this treaty. The Commission here confirms the view which it has stated in the Golder Case[16] when relying on the judgments of the European Court of Human Rights in the cases of Wemhoff (27 June 1968, Series A no. 7) and Delcourt (17 January 1970, Series A no. 11) and in the Belgian Linguistic Case (23 July 1968, Series A no. 6). It also refers to the Advisory Opinion of the International Court of Justice on Reserva tions to the Convention on Genocide which, like the European Convention on Human Rights, has a humanitarian character. In that Opinion the Court stated[17]:
- The Commission further recalls that the European Convention on Human Rights should be interpreted objectively and not by reference to what may have been the understanding of one Party at the time of its ratification[18].
- The Commission has also had regard to the preparatory work of the Convention which in fact, shows that there was no analysis or discussion of the particular notion of "degrading treatment in Article 3.
- The Commission finally recall its own statement in the First Greek Case[19] that treatment of an individual may be said to be degrading in the sense of Article 3 "if it grossly humiliates him before others or drives him to act against his will or conscience".
- In its decision on the admissibility of the applications in Group I[20], the Commission has held that "discrimination based on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 of the Convention" .
- When the Commonwealth Immigrants Bill 1968 was debated in the House of Commons and the House of Lords in February 1968, opinions were divided on the question whether the Bill discriminated on racial grounds[21]. This issue has been further discussed by the parties in their oral and written submissions to the Commission.
- The Commission notes[22] that the 1968 Act:
- The Commission finds it established that the 1968 Act had racial motives and that it covered a racial group. When it was introduced into Parliament as a Bill, it was clear that it was directed against the Asian citizens of the United Kingdom and Colonies in East Africa and especially those in Kenya. The Commission refers in this connection to statements made in both Houses of Parliament during the debate on the Bill in February 1968[23].
- The Government, while claiming that the Act was based on geography, nevertheless admitted that it had racial motives: the Home Secretary stated in the House n~ Commons on 27 February 1968 "that the origin of this Bill lies ... in a considered judgment of the best way to achieve the idea of a multi-racial society"[25]; and the Government submitted in the present proceedings that the Act was intended to promote "racial harmony".
- The Commission concludes that the 1968 Act, by subjecting to immigration control citizens of the United Kingdom and Colonies in East Africa who were of Asian origin, discriminated against this group of people on grounds of their colour or race.
- It further considers that the discriminatory provisions of the above Act should be seen in the context of two other laws, and of further regulations, in the field of citizenship and immigration which also gave preference to white people.
- In the debate of the Commonwealth Immigrants Bill 1968, the question was also discussed whether the imposition or re-imposition of immigration control on citizens of the United Kingdom and Colonies coming from East Africa was in conflict with a "pledge" of free entry to the United Kingdom, which was said to have been given to those persons at the time when the East African States concerned became independent[29].
- The Commission does not find it necessary to determine whether the above circumstances can be considered as constituting an implied pledge of free entry to the United Kingdom. It believes, however, that they must be taken into account, as additional important elements, in the examination of the applicants' complaint under Article 3 of the Convention.
- The Commission further considers it relevant that the persons concerned were not aliens, but were and remained citizens of the United Kingdom and Colonies. As such, they had the same rights as other citizens. They were thus, as submitted by the applicants, reduced to the status of second-class citizens.
- The Commission finally recalls the increasingly difficult situation with which the Asians were faced in East Africa. As a result of the policies of "Africanisation"[35], which had been introduced by the East African States in the years following their independence[36], most of the Asians concerned were deprived of their livelihood and rendered destitute: their trading licences and trading areas were restricted[37] and their continued residence in East Africa became illegal; being refused entry by the only State of which they were citizens - the United Kingdom - they had no other country to which they could make out a claim for admission.
- The Commission has stated above[39] that the legislation applied in the present cases discriminated against the applicants on the grounds of their colour or race. It has also confirmed the view, which it expressed at the admissibility stage, that discrimina tion based on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 of the Convention[40].
- The Commission considers that the racial discrimination to which the applicants have been publicly subjected by the application of the above immigration legislation constitutes an interference with their human dignity which, in the special circumstances described above[42], amounted to "degrading treatment" in the sense of Article 3 of the Convention.
- It therefore concludes, by six[43] votes against three[44] votes, that Article 3 has been violated in the present cases.
- The Commission. observes that Article 25 refers to petitions from persons " claiming to be" the victims of such violations. It considers that its competence under this provision covers violations which have occurred in the past and have been terminated, as in the cases of the present applicants.
- The Commission in any case considers that, until their final admission to the United Kingdom, the applicants were and remained victims of a violation of Article 3 for the reasons stated above. This violation was substantially terminated on the date of the admission. It was not, however, as regards the period before that date, retroactively eliminated, nor were all effects of the earlier violation disposed of.
- The Commission considers that the six applications brought by British protected persons must be distinguished from the 25 cases of citizens of the United Kingdom and Colonies examined under (b) above. It notes that:
- The Commission considers that, in view of the above circumstances, the legislation complained of cannot in the present cases of British protected persons ~ regarded as discriminatory and even less as constituting degrading treatment in the sense of Article 3 of the Convention.
- The Commission therefore concludes unanimously[48] that Article 3 has not been violated in these cases.
- The second point at issue in the present applications[49] is the question whether the United Kingdom authorities violated the applicants' rights under Article 5 - either alone or in conjunction with Article 14 - of the Convention.
- Article 5 para. 1, first sentence, states that everyone has the right "to liberty and security of person" (in the French text: "à la liberté et à la sûreté").
- The applicants submit that "security of person" under Article 5 means something more than "liberty of person". They consider that the protection of "security" is concerned with arbitrary interference, by a public authority, with an individual's personal existence.
- The Commission considers that the term "security of person" under Article 5 of the Convention must be interpreted in its particular context[51]. The full text of Article 5 reads as follows:
- The text of Article 5 shows in the Commission's view that the expression "liberty and security of person" in paragraph 1 must be read as a whole and that, consequently, "security" should be understood in the context of "liberty".
- This view is further supported by an examination of the structure of the Articles of the Convention. In several Articles - Articles 2. 7. 8. 9. 10 and 11 - the first paragraph sets out in general terms the right guaranteed which is then further defined or qualified by the succeeding paragraphs. Article 1 of the First Protocol to the Convention shows a similar pattern: the first sentence defines the right guaranteed, the following sentences deal with its limitation.
- This does not. however. mean that the term "security" is otiose in Article 5. In the Commission's view, the protection of "security" is in this context concerned with arbitrary interference, by a public authority, with an individual's personal "liberty". Or, in other words, any decision taken within the sphere of Article 5 must, in order to safeguard the individual's right to "security of person", conform to the procedural as well- as the substantive requirements laid down by an already existing law.
- The Commission does not find that the application of the immigration legislation complained of constitutes in the applicants' cases an interference with their right to "security of person", as interpreted above.
- The Commission concludes. by eight[52] votes against one[53] vote, that Article 5 of the Convention has not been violated in the present cases.
- The Commission has also considered the applicants' complaint under Article 14 in conjunction with Article 5 of the Convention and in this respect makes the following observations.
- It is accepted by both parties, following the judgment of the European Court of 2 . an Rights in the Belgian Linguistic Case, that while Article 14 does not have an autonomous role, there may be a violation of Article 14 in conjunction with another Article of the Convention although there is no violation of that other Article taken alone[54]. However, the cases of such a violation of Article 14 all seem to arise where the right or freedom in question is further defined or qualified in some way in the Article concerned, as it is for example by the succeeding paragraphs of certain Articles[55]. The effect of Article 14 in such cases is that, where the exercise of a right may be restricted, the restriction must not be discriminatory.
- The right to security of person under Article 5, like the rights protected by Article 3, is guaranteed in absolute terms, and the Commission does not consider that there could be an "independent" violation of Article 14 in combination with this right.
- The Commission therefore concludes, by eight votes[56] against one[57] vote, that there has been no violation of Article 14 in conjunction with Article 5.
- Article 8 para. 1 of the Convention states inter alia that everyone has the right to respect for his family life. Paragraph 2 of Article 8 permits such interference by public authorities with the exercise of this right as are in accordance with the law and are "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 above three applicants, whose petitions were declared admissible under Articles 8 and 14 of the Convention, submit that the United Kingdom authorities, in preventing them from entering Britain after admitting their respective wives to permanent residence, violated their rights to respect for their family life.
- The Commission notes that:
- The Commission considers that this refusal of admission constituted, in the circumstances of the present cases, an interference with the applicants' "family life" in the sense of Article 8 of the Convention in that it prevented, against their will, the reunion in the United Kingdom of the members of the applicants' families, who were all citizens of the United Kingdom and Colonies.
- It concludes, by seven[60] votes against two[61] votes, that there has in these cases been a violation of Article 14 in conjunction with Article 8.
- The Commission finally notes that during the present proceedings the three applicants concerned were eventually given permission to stay permanently in the
- The Commission notes that the applicants' original complaints under Articles 1 and 13 of the Convention have not been pursued during the examination of the merits of these cases.
- It concludes unanimously that they need not be examined further[62] and therefore expresses no opinion in regard to them.
EAST AFRICAN ASIANS v/the UNITED KINGDOM
1. Whether or not the United Kingdom's refusal to admit the applicants to Britain, or to allow them to stay there permanently, violated their rights under Article 3 of the Convention [2]
(a) Introduction
page 52 [3]
of the Convention in that, at the time when their applications were introduced to the Commission, they refused them admission to Britain or permission to remain there permanently.[4]
In examining the different elements of this issue, the Commission will inter alia discuss the question whether the immigration legislation applied in the applicants' cases discriminated against them on the ground of their race or colour. The Commission does not find that Article 14, considered in conjunction with Article 3, adds anything in this context. It is true that Article 14 ensures the enjoyment of the rights and freedoms set forth in the Convention without discrimination on the ground of race or colour. However, as discrimination will in the present cases be considered under Article 3, as one of the elements which might constitute "degrading treatment", the Commission does not find it necessary to examine it again under Article 14 in connection with Article 3.[5]
• the 25 applicants who are citizens of the United Kingdom and Colonies, and
• the 6 applicants who are British protected persons .
(b) The 25 cases of citizens of the United Kingdom and Colonies (Applications Nos. 4403/70-4409/70, 4412/70, 4413/70, 4415/70-4419/70, 4422/70, 4423/70, 4434/70, 4443/70, 4478/70, 4486/70, 4501/70 and 4527/70-4530/70)
The 25 applicants who are citizens of the United Kingdom and Colonies submit that the British authorities, by refusing to admit them to the United Kingdom or to allow them to stay there permanently, reduced them to the status of second-class citizens. This degradation, which was based on their colour or race, amounted to "degrading treatment" in the sense of Article 3.
page 53
Furthermore, the legislation applied in the present cases did not discriminate against the applicants on the ground of their colour or race and, in any case, discrimination cannot by itself constitute "degrading treatment".
(aa) Preliminary observations concerning the right of entry
page 54
entry or residence as such, but that it is being invited to examine the different question whether the decisions complained of amount to "degrading treatment" in the sense of Article 3.
(bb) The meaning of the term "degrading treatment" in Article 3
Consequently, the Commission will first examine the ordinary meaning of the term "degrading treatment" in its proper context, combined with the object and purpose of the European Convention on Human Rights.[10] It will next take account of the preparatory work, as supplementary means of interpretation [11], and finally consider the relation of its own jurisprudence to the interpretation reached.
The Commission finds this broad interpretation of the ordinary meaning useful when defining the term "degrading treatment" in Article 3 of the Convention. In view of the particular context in which the term is used in Article 3, the Commission considers, however, that the above interpretation must be narrowed.
Article 3 states that no one shall be subjected to "torture or to inhuman or degrading treatment or punishment". The term "degrading treatment" in this context indicates that the general purpose of the provision is to prevent interferences with the dignity of man of a particularly serious nature. It follows that an action which lowers a person in rank, position, reputation or character can only be regarded as "degrading treatment" in the sense of Article 3 where it reaches a certain level of severity.
page 55
The Government themselves quote the passage in the Commission's Report in the First Greek case[13] dealing with Article 3:
"The notion of inhuman treatment covers at least such treatment as deliberately causes severe suffering, mental or physical[14], which in the particular situation is unjustifiable" ... while torture "is generally an aggravated form of inhuman treatment. "
The Government also fail to appreciate that part of the Report in the First Greek Case dealing with "non-physical torture or ill-treatment". The Report states[15] that "the notion of non-physical torture is here used to cover the infliction of mental suffering by creating a state of anguish and stress by means other than bodily assaults" and goes on to refer to cases involving different forms of mental cruelty.
If torture does not necessarily require a "physical act or condition", then a fortiori this element cannot be a prerequisite of degrading treatment.
"The Convention was manifestly adopted for a purely humanitarian and civilising purpose ... its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality. In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d'être of the Convention ... The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions."
page 56
This definition is similar to the interpretation reached in paragraph 189 above; particular, the word "grossly" indicates that Article 3 is only concerned with degrading treatment" which reaches a certain level of severity.
(cc) The elements to be considered in the present cases
The Commission now confirms this view and further observes that it is not faced with the general question whether racial discrimination in immigration control constitutes as such degrading treatment. The question is rather whether the legislation applied in the applicants' cases, i.e. the Commonwealth Immigrants Act 1962 as amended by the Commonwealth Immigrants Act 1968 and the Immigration Appeals Act 1969, discriminated on the ground of race or colour and, if that be the case, whether its application in the following special circumstances of the present cases constituted "degrading treatment" in the sense of Article 3 of the Convention:
• the "pledge" of free entry, which is said to have been given previously to the citizens of the United Kingdom and Colonies in East Africa who were affected by the Act;
• the fact that the persons concerned were not aliens, but were and remained citizens of the United Kingdom and Colonies, and that as such, although they had the same duties as other citizens, under the 1968 Act they no longer had the same right of entry;
page 57
the increasingly difficult situation with which these persons were faced in East Africa: most of them were deprived of their livelihood and rendered destitute' their continued residence in East Africa became illegal; and, being refused entry; by the only State of which they were citizens - the United Kingdom - they had nowhere else to go.
In addition to the above elements, which are common to all the present cases. some of the applications present further features which have to be taken into account as aggravating factors. These relate to the manner in which immigration control was under the applicable legislation and administrative instructions, exercised in the cases concerned and, in particular, to the practice of shuttlecocking (cf. Applications Nos. 4404, 4407, 4434, 4486 and 4501).
(dd) The question of racial discrimination
• imposed (in so far as Tanzania was concerned), or
• re-imposed (in the cases of Kenya and Uganda)
immigration control on the great majority of United Kingdom passport holders, who were citizens of the United Kingdom and Colonies, of Asian origin and resident in East Africa. The present applicants all belong to this group.
It notes in particular that a former Secretary of State for the Colonies had proposed legislation to limit the rights of Asians from Kenya to enter the United
page 58
Kingdom[24], and that the main purpose of the Government's Bill was apparently to exclude that "most of the 200,000 Asians in East Africa would continue to be free to come here at will".
It recalls, first, that the 1968 Act was preceded by the British Nationality Act 1964. The latter Act, as stated above[26], facilitated the resumption of citizenship of the United Kingdom and Colonies by persons who had chosen to become citizens of Uganda or Kenya, provided that such persons had a "qualifying connection with the United Kingdom or Colonies or with a protectorate or protected state"; this condition would normally be fulfilled by the so-called "white settlers", but not by members of the Asian communities in East Africa.
The Commission notes, secondly, that the 1968 Act has in the meanwhile been replaced by the Immigration Act 1971. Under the latter Act, persons who belong to the category of "patrials" have a "right of abode" in the United Kingdom, irrespective of whether they are citizens of the United Kingdom and Colonies[27]; such persons would normally be white Commonwealth citizens. The Asian citizens of the United Kingdom and Colonies in East Africa, on the other hand, would not normally be "patrials" and thus have no "right of abode" in the United Kingdom, the State of which they are Citizens.
Page 59
The Commission observes, thirdly, that Rule 27 of the Immigration Rules for Control on Entry of 25 January 1973, which were laid down by the Home Secretary as to the practice to be followed in the administration of the Immigration Act 1971 provides as follows[28]:
"Upon proof that one of his grandparents was born in the United Kingdom and Islands, an applicant who wishes to take or seek employment in the United Kingdom will be granted an entry clearance for that purpose. A passenger holding an entry clearance granted in accordance with this paragraph does not need a work permit and ... should be given indefinite leave to enter."
The Commission considers that this Rule constitutes, in effect, an extension of the above category of "patrials", which would normally operate in favour of white people.
(ee) The special circumstances which are common to the present cases
The Commission does not find it established that the United Kingdom gave an express undertaking, by way of a formal pledge, that its citizens of Asian descent in East Africa would always be free to come to Britain. It notes, however, that those who assumed that there had been an implied "pledge" of this nature seem to have based this assumption on the following elements:
• the provisions of the Uganda Independence Act 1962 and the Kenya Indepen dence Act 1963 which allowed those Asians who did not obtain local citizenship by birth or by option to retain their status as citizens of the United Kingdom and Colonies[30];
• the issue, following the independence of Uganda and Kenya, of United Kingdom passports to East African Asians who had so retained their citizenship of the United Kingdom and Colonies[31];
page 60
• the provision of the 1962 Act[32] which exempted from immigration control any person "who holds a United Kingdom passport and is a citizen of the United Kingdom and Colonies".
Furthermore, the United Kingdom authorities did not until February 1968 'indicate that any change was envisaged with regard to the entry into Britain of citizens ~f the United Kingdom and Colonies coming from East Africa. In particular, the White Paper "Immigration from the Commonwealth", which was published by the British Government in 1965, while proposing to limit immigration from the Commonwealth, did not contain any reference to the East African Asians who were citizens of the United Kingdom and Colonies[33].
These people had apparently not opted for local citizenship, but retained their status as citizens of the United Kingdom and Colonies, because they considered this status as a safeguard for their future position in that it gave them the rights of entry into, and residence in, the United Kingdom[34]. The time-limit of two years, during which they could obtain local citizenship by option, had in 1965, at the time of the publication of the above White Paper, expired in Uganda. However, for the Asians concerned in Kenya, it would then still have been possible to opt for Kenyan citizenship as a matter of right.
page 61
The Commission considers that all this was foreseeable at the time when the 1968 Act was passed. It is true that the subsequent hardship of the applicants resulted primarily from the actions of the Kenyan and Uganda authorities, but even if the United Kingdom did not directly cause the hardship, they exposed the applicants to the possibility of it occurring.
The Commission also recalls that some of the applications present further features which have to be taken into account as aggravating factors[38].
(ff) Conclusion
The Commission recalls in this connection that, as generally recognised, a special importance should be attached to discrimination based on race; that publicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity; and that differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when differential treatment on some other ground would raise no such question[41].
page 62
(gg) Final observations (Article 25)
The Commission notes that during the present proceedings all 25 applicants were 210. eventually given permission to stay permanently in the United Kingdom.
The Government has in this connection invoked Article 25 of the Convention, submitting that under this provision, an applicant may only complain to the Commission if he is still the victim of a violation of the Convention.
(c) The six cases of British protected persons (Applications Nos. 4410/70, 4411/70, 4414/70,4476/70,4477/70 and 4526/70)
• according to English law, British protected persons, although not aliens, are not British subjects[45];
• they became and remained subject to immigration control under the 1962 Act[46];
• their position as regards entry to the United Kingdom was not changed by the 1968 Act[47];
• the immigration legislation concerned did not distinguish between different groups of British protected persons on any ground of race or colour.
page 63
2. Whether or not the United Kingdom's refusal to admit the applicants to Britain or to allow them to stay there permanently, violated their rights under Article 5 - either alone or in conjunction with Article 14 - of the Convention
(a) Article 5
It follows from the terms of its decision on the admissibility of the applications in Group I[50] that, at the present stage, the Commission is only concerned with "security" and not with "liberty" of person.
The Government reply that "security of person" under Article 5 is to be understood in the general context of "liberty of the person". Article 5 does not cover arbitrary action as such, and furthermore the United Kingdom authorities have not acted arbitrarily.
"(1) Everyone has the right to liberty and security of person.
page 64
No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the
lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of
bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of
infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
(2) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
(3) Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
(5) Everyone who has been the victim of arrest or detention in contravention ~f the provisions of this Article shall have an enforceable right to compensa tion."
page 65
In the case of Article 5 of the Convention, the initial statement of the right guaranteed is qualified within paragraph 1 itself. The succeeding paragraphs then set out certain additional rights of a person who has been deprived of his liberty.
It appears, therefore, to be in accordance with the structure both of Article 5 and of the Convention as a whole to take the expressions "liberty" and "security" of person in paragraph 1 of Article 5 as being closely connected.
This interpretation is confirmed both by the text of Article 5 and by the preparatory work of the Convention, which show that protection against arbitrary arrest and detention was one of the principal considerations of the drafters of this treaty.
(b) Article 14 in conjunction with Article 5
page 66
3. Whether or not the United Kingdom's refusal to admit to Britain the applicants in Applications Nos. 4478/70, 4486/70 and 4501/70 violated these applicants' rights under Articles 8 and 14 of the Convention
Article 14 of the Convention imposes a further limitation on the above exceptions regarding the interference of public power in matters affecting family life: it states that the enjoyment of the rights and freedoms set forth in the Convention "shall be secured without discrimination on any ground such as sex".
page 67
The Government reply that in each case the separation of husband and wife occurred voluntarily; further, in so far as Article 8 guarantees a right for a family to reside together at a particular place, that place is where the husband lawfully is and not the wife.
(1) Section 2 (2) (b) of the 1962 Act, as amended by the 1968 Act and the
Immigration Appeals Act 1969, exempted from immigration control the wife of a Common-wealth citizen resident in the United Kingdom: she was entitled to admission for settlement, provided she held an entry certificate evidencing fulfilment of this provision[58];
(2) that there was no corresponding exemption for husbands of Commonwealth citizens resident in the United Kingdom. Indeed, paragraph 41 of the Instructions to Immigration Officers of February 1970 stated expressly[59]:
"The fact that his wife was born or is resident in the United Kingdom does not in itself give a man a claim to settlement without an employ ment voucher. A Commonwealth citizen whose sole claim to settlement is in right of his wife should be admitted only if he has an entry certificate endorsed 'joining wife'. The Secretary of State will authorise the issue of an entry certificate for this purpose only if he is satisfied that there are special considerations, whether of a family nature or otherwise, which render exclusion undesirable; for example, because of the degree of hardship which, in the particular circumstances of the case, would be caused if the wife had to live outside the United Kingdom in order to be with her husband."
(3) under the above legislation, the three applicants concerned, being the husbands of Commonwealth citizens resident in the United Kingdom were, at the time when their applications were introduced with the Commission, refused admission to Britain, while they would have been admitted had they been the wives of such citizens.
page 68
The Commission further considers that this interference with family life was in the circumstances of the present cases contrary to Article 14, read in conjunction with Article 8 of the Convention, in that it discriminated against male immigrants on the ground of their sex.
United Kingdom, and it refers in this connection to the observations made in paragraphs 210 to 212 above.
4. Complaints under Articles 1 and 13 of the Convention
page 69
The Committee of Ministers,
Having regard to Resolution DH (77) 2 whereby the Committee removed the examination of the case from its agenda;
Having regard to the request formulated by the Government of the United Kingdom on 25 February 1994 to have the Report of the European Commission of Human Rights in this case made public,
Decides to make public the above-mentioned Report of the Commission.
* A separate individual opinions of Mr. J. E. S. Fawcett and a dissenting opinion of Mr. F. Welter are not reporduced in this version of the decision.
page 70
Note 1 Made public by Resolution of 21 March 1994 (cf. below, page 70). [Back] Note 2 See also Part V - individual opinions of MM. Fawcett and Welter [not reproduced in this volume]. [Back] Note 3 Page numbers refer to the pagination in the originating publication: European Commission of Human Rights: Decisions and Reports Vol 78-A, Council of Europe, 1994 [Back] Note 4 Cf. paragraph 4, above.(paragraphs before 179 can be found in the originating publication) [Back] Note 5 The Commission also refers in this connection to the considerations set out in paragraph 226, below. [Back] Note 6 Collection 36 p. 92, Yearbook 13 p. 928. [Back] Note 7 Cf., for example, Nos. 4802(71 and 5564(72, Collection 42 pp. 35, 39 and 1\4, 121 respectively. No. 4314/69, Collection 32 pp. 96, 97 [Back] Note 8 No. 4314/69, Collection 32 pp. 96, 97. [Back] Note 9 No. 1802/62, Yearbook 6 pp. 462,480 [Back] Note 10 Cf. Article 31 of the Vienna Convention. [Back] Note 11 Cf. Article 32 of the Vienna Convention. [Back] Note 12 Memorial on the merits, paragraph 15 [not reproduced in this volume]. [Back] Note 13 Report of 5 November 1969, Yearbook 12 p. 186. [Back] Note 14 Emphasis added. [Back] Note 15 Loc cit., p. 461. [Back] Note 16 Report of I June 1973, paragraph 44, loc cit. [Back] Note 17 LCJ Reports 1951, pp. 15,23. [Back] Note 18 Cf. Golder Report, paragraph 44, loc. cit., with a quotation, in footnote I, from No. 788/60, Austria v. Italy, Dec. 11.1.61. Yearbook 4 pp. 116,140. [Back] Note 20 Collection 36, pp. 92, 117, Yearbook 13 pp. 928, 994. [Back] Note 21 See paragraphs 34 and 40-41, above. [Back] Note 22 See paragraph 32, above. [Back] Note 23 Collection 36, pp. 92, 117, Yearbook 13 pp. 928, 994. [Back] Note 24 See paragraph 36, footnote [5], above. [Back] Note 25 See paragraph 40, above. [Back] Note 26 See paragraph 27, above. [Back] Note 27 See paragraph 44. above. [Back] Note 28 See paragraph 44, p. 32, footnote [1], above. [Back] Note 29 See paragraphs 34 et seq., above. [Back] Note 30 Cf. paragraph 22, footnote [I], above. [Back] Note 31 Cf. paragraph 23, above. [Back] Note 32 Section 1 (2); cf. paragraphs 17 and 23, above. [Back] Note 33 Cf. paragraph 28, above. [Back] Note 34 See e.g. paragraph 35, above (Mr. Maudling). [Back] Note 35 See paragraphs 29 et seq .. above. [Back] Note 36 As stated In paragraphs 19 and 24, footnote [I], above, Tanzania became independent in 1961, Uganda in 1962 and Kenya in 1963 [Back] Note 37 See paragraphs 29 et seq., above. [Back] Note 38 See paragraph 196 in fine. [Back] Note 39 Paragraphs 201 and 202. [Back] Note 40 See paragraph 196, above. [Back] Note 41 See the Commission's decision on the admissibility of the applications in Group I, Collection 36 pp. 92, 117, Yearbook 13 pp. 928, 994. [Back] Note 42 Paragraphs 203-206. [Back] Note 43 In addition, two other members of the Commission, who were not present when the vote was taken, expressed their agreement with this conclusion. [Back] Note 44 Vote taken on 11 October 1971. [Back] Note 45 See paragraphs 9 and 1l above [Back] Note 46 See paragraphs 18 and 24, above. [Back] Note 47 See paragraph 32 in fine (p. 24, footnote [1]), above. [Back] Note 48 Vote taken on 11 October 1973. [Back] Note 49 Cf. paragraph 4, above. [Back] Note 50 Collection 39 pp. 92, 118, Yearbook 13 pp. 928, 996. [Back] Note 51 Cf. the principles of interpretation set out in paragraph 188, above. [Back] Note 52 In addition. two other members of the Commission, who were not present when the vote was taken. expressed their agreement with this conclusion. [Back] Note 53 Vote taken on 11 October 1973. [Back] Note 54 Judgment of 23 July 1968, loc. cit., p. 33, paragraph 9. [Back] Note 55 See paragraph 221 above. [Back] Note 56 In addition, two other members of the Commission, who were not present when the vote was taken, expressed their agreement with this conclusion. [Back] Note 57 Vote taken on 11 October 1973. [Back] Note 58 See paragraphs 33 and 48, footnote [5], above. [Back] Note 59 See paragraph 48, footnote [5], above. [Back] Note 60 In addition, two other members of the Commission, who were not present when the vote was taken, expressed their agreement with this conclusion. [Back]