European Court of Human Rights

7 October 2010

FOURTH SECTION

Application no. 6222/10
by Altaf Hussein KHAN
against the United Kingdom
lodged on 1 February 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Altaf Hussein Khan, is a Pakistani national who was born in 1971 and currently lives in Pakistan. He is represented before the Court by Malik Legal Solicitors Ltd., a firm practising in Manchester.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was born in Pakistan, and moved to the United Kingdom with his family in 1978. He was subsequently granted indefinite leave to remain 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 appears that he returned to Pakistan at least once, and he was married there in 1989. His current marital status and the whereabouts of his wife are not known.

On 18 February 1992, the applicant was convicted of having sexual intercourse with an underage female and of two counts of 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 200 hours of community service. On 4 January 1996, the applicant was convicted of driving whilst disqualified and without insurance and sentenced to 20 weeks’ imprisonment. He was also disqualified from driving for three years. On 19 December 2000, the applicant 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 18 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, 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 a decision to make a deportation order against him.

The applicant did not exercise his right of appeal against this decision and his deportation order was signed on 2 October 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.

The applicant’s appeal was heard by the Asylum and Immigration Tribunal on 20 January 2009. The appeal was argued purely on the grounds of Article 8. The Tribunal accepted that the applicant had seven children born in the United Kingdom by two different women and that his parents and siblings were all now naturalised British citizens. 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 UK 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 in the applicant 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 was proportionate, having regard to the applicant’s persistent offending and the high risk to public safety, as assessed by his probation officer, on the one hand, and the lack of evidence as to a meaningful relationship between the applicant and his children over the past eight years, on the other.

An application for reconsideration of the Tribunal’s decision was refused on 25 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 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. His asylum claim was refused on 20 October 2009 as being ill-founded, since the applicant had had no direct contact with any of those whom he claimed to fear and it was not believed that they would recognise him, 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 issues.

The applicant was deported to Pakistan on 15 February 2010.

B.  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.

COMPLAINT

The applicant complains under Article 8 of the Convention about his deportation to Pakistan.

QUESTION TO THE PARTIES

Did the applicant’s deportation to Pakistan breach his rights under Article 8 of the Convention? The Government is specifically requested to comment on the application in the light of A.W. Khan v. the United Kingdom, no. 47486/06, 12 January 2010, which involved the younger brother of the current applicant.