COUNCIL OF EUROPE EUROPEAN COMMISSION OF HUMAN RIGHTS DECISION OF THE COMMISSION OAS TO ‘THE ADMISSIBILITY Application No 8971/80 by N S V against the United Kingdom’ The European Commission of Human Rights sitting in private on 5 May 1981, the following persons being present: Mr. C.A. NORGAARD, Acting President (Rules 7 and 9 of the Rules of Procedure), Mr. E.S. FAWCETT, Mr. J.A. FROWEIN, Mr. G. JORUNDSSON, Mr. R.J. DUPUY, Mr. S. TRECHSEL, Mr. B. KIERNAN, Mr. N. KLECKER, Mr. M. MELCHIOR, Mr. H.C. KRUGER, Secretary to the Commission. Having regard to Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 7 May 1980 by N S. V against the United Kingdom and registered on 12 May 1980 under file No 8971/80; Having regard to the information submitted by the Government on 15 September 1980 to which the applicant replied on 13 October 1980 pursuant to a request from the Rapporteur in accordance with Rule 40 (1) of the Rules of Procedure of the Commission; a first report provided for in Rule 40 of the Rules of Procedure; the Commission's decision of 15 December 1980 to request further information from the Government about the facts of the application, in accordance with Rule 42 (a) of the Rules of Procedure; the information submitted by the Government on 4 February 1981 and the comments of the applicant in reply submitted on 12 March 1981; a second report provided for in Rule 40 of the Rules of Procedure; Having deliberated, decides as follows: 8971/80 THE FACTS The applicant was born in Kenya in 1953. He is a citizen of the United Kingdom and Colonies subject to immigration control as he is not a patrial with the right of abode in the United Kingdom under the Immigration Act 1971. He is represented before the Commission by Messrs. Bensons, Solicitors, London, and MM. Blom-Cooper, QC, and Drabble, Counsel. His application arises out of his compulsory return to India by United Kingdom authorities. The applicant was taken to India by his parents in 1965. In 1972, at the age of 18½, he enlisted in the Indian Air Force on a 15-year contract. In August 1974 he married N K, a patrial residing in London since 1968. The applicant's requests for discharge from the Indian Air Force were refused. On the suggestion of his father-in-law that the discharge could be arranged from England, the applicant applied for and obtained an entry certificate from the British immigration authorities in Delhi. While on leave from the Indian Air Force, he went to England and on 5 April 1978 was granted unlimited leave to enter or remain in the United Kingdom, no restrictions being made regarding his employment. It appears, however, that the applicant at no time disclosed his occupation to the immigration authorities. He told the Entry Clearance Officer in Delhi that he had been unemployed for three years. The applicant obtained and remained in employment in the United Kingdom. On 3 July 1979 a son was born to the couple. On 8 November 1979, the applicant was arrested pursuant to a certificate sent to the Metropolitan Police by the Indian High Commission in London to the effect that the applicant was a deserter from the Indian Air Force since on or about 8 March 1978 (S. 14 (b) Visiting Forces Act 1952). Details of the applicant and his address were also provided. The applicant was bailed the following day and on 30 November 1979 attended the Magistrates Court before which he admitted being a deserter. The Court was satisfied that the requirements of S. 13 and 14 of the Visiting Forces Act 1952 and S. 186-188 and 190 of the Army Act 1955 had been complied with, i.e. that the applicant had acknowledged being a deserter and that the Secretary of the Defence Council had certified that a general request for the surrender of deserters from the Indian Forces had been received from the Government of India. The Court, having no discretion under the law to take the applicant's personal circumstances into account, ordered that the applicant be handed over to an Indian Air Force Escort. On 7 December 1979, the applicant obtained High Court leave to apply for a writ of Habeas Corpus and an order of certiorari. He was again released on bail on 19 December 1979. His applications were refused on 7 March 1980 by the Divisional Court; his removal as a deserter not being protected by European Community law. The Divisional Court refused to refer the matter to the Court of Appeal, this refusal being upheld by the House of Lords on 7 May 1980. He claims to have exhausted all available domestic remedies. It appears that the applicant was handed over to the custody of the Indian Air Force on 17 May 1980 and was returned to India. Since then his legal representatives have been unable to contact him. According to the Government's information, the applicant's court-martial is still proceeding, the maximum penalty for desertion in peacetime under Indian law being 14 years' imprisonment. Under the immigration rules currently in force, a citizen of the United Kingdom and Colonies who holds a United Kingdom passport and who has previously been admitted for settlement is freely readmissible to the United Kingdom. The Government state, however, that it is not possible to give any undertaking that the applicant would qualify to enter the United Kingdom at any time in the future should the rules change, but it is open to him to apply for an entry certificate when he wishes to return and his application would be carefully considered in the light of all the circumstances then prevailing. The applicant comments that he has no enforceable right to return to the United Kingdom and that he has no guarantee about the future position. COMPLAINTS The applicant complains that his compulsory return to India to face a court-martial for desertion is unjust and oppressive and in breach of his right to respect for family life. He invokes Arts. 5 (4), 6, and 8. As regards Art. 8, the applicant submits that the Visiting Forces Act denies all discretion to the competent court to take into account valid family considerations or other pressing circumstances of the deserter. He contends that his removal as a deserter cannot be shown to be "necessary in a democratic society." It is claimed that the lack of discretion to consider the merits of a case also denied the applicant a fair and public hearing in the determination of his civil rights, in breach of Art. 6. It is further submitted that the summary procedure for the return of a deserter under the said Act does not furnish the guarantees of a judicial procedure required by Art. 5 (4). The applicant's legal representatives comment that the applicant's non-disclosure of his employment is irrelevant to the complaint of being handed over to the Indian Air Force. If he had been deported as an illegal immigrant (cf. Zamir v. the Secretary of State for Home Affairs (1980) 3 WLR 249), at least he would have had the choice of destination or could even have returned to India undetected by the Indian authorities. THE LAW The applicant has complained of his compulsory return to India. The Commission notes that the United Kingdom Government was responsible for this measure by detaining the applicant and handing him over to the Indian Air Force Escort. As regards Art. 5, the applicant has alleged that his compulsory return to India as a deserter, in accordance with the Visiting Forces Act 1952, denied him the guarantees of a judicial procedure required by Art. 5 (4) of the Convention. Art. 5 (1) of the Convention guarantees "the right to liberty and security of person," except "in accordance with a procedure prescribed by law" in certain cases, such as the lawful detention of a person against whom action is being taken with a view to deportation or extradition (Art. 5 (1) (f)). Art. 5 (4) provides that "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." The Commission notes that the applicant was apparently detained for short periods: on his arrest on 8 November 1979, after the Magistrates Court hearing from 30 November 1979 to 19 December 1979, and presumably prior to his handing over to the escorting officer of the Indian Air Force. The Commission considers that such detention was in accordance with a procedure prescribed by law, with a view to deportation or extradition as envisaged by Art. 5 (1) of the Convention. The Commission also notes that the applicant was detained as a deserter from the armed forces of a Commonwealth country for the purpose of returning him to his country to face a court-martial. He was brought before the Magistrates Court, and subsequently he had access to the High Court. At no stage, however, did the applicant challenge the fact that he was a deserter. The Commission finds that the applicant was entitled to, and indeed took advantage of, the possibility to have the lawfulness of his detention speedily determined before the said courts. An examination of the complaint as it has been submitted by the applicant does not therefore disclose any appearance of a violation of Art. 5 of the Convention, in particular, paragraph (4) thereof. It follows that this part of the application is manifestly ill-founded within the meaning of Art. 27 (2) of the Convention. As regards Art. 6, the applicant also claimed that the proceedings against him under the Visiting Forces Act 1952 also denied his right under Art. 6 (1) to a fair and public hearing in the determination of his civil rights and obligations. The Commission refers to its decision on admissibility in the case of the S/U family against the United Kingdom, Application No. 8244/78, which concerned the deportations from the United Kingdom of a couple whose parents and children were entitled to reside there. The Commission has considered, in the context of previous cases brought before it, the question of the applicability of Art. 6 (1) of the Convention to deportation matters. The Commission has held in these cases that a decision as to whether an alien should be allowed to stay in a country is a discretionary act by a public authority. Consequently, the decisions to expel the applicant's parents in the present case were of an administrative order and they were made in the exercise of the discretionary powers of the immigration authorities. They did not therefore involve as such the determination of civil rights within the meaning of Art. 6 (1) of the Convention and, even assuming that the respective rights of grandparents, parents, and children to maintain a life in common is a civil right within the meaning of that provision, the decision of the United Kingdom immigration authorities to expel the applicant's parents does not determine such a right. It follows that Art. 6 (1) of the Convention is not applicable in the present case. The Commission is of the opinion that similar considerations apply to proceedings by which an alien deserter is obliged to return to the country of his military service. It finds that the court decisions of which the applicant complains did not determine his civil rights.

or obligations within the meaning of Art. 6 (1) and that, therefore, no issue arises under this provision of the Convention. It follows that this part of the application is also manifestly ill-founded within the meaning of Art. 27 (2) of the Convention. As regards Art. 6, finally, the applicant has complained that his compulsory return to India constitutes an unjustified interference with his right to respect for family life ensured by Art. 8 of the Convention. Art. 8 of the Convention provides that: Everyone has the right to respect for his private and family life ... 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 Commission recalls its constant jurisprudence that the Convention does not guarantee a right, as such, to enter or reside in a particular country. However, the Commission has also held that the expulsion of a person from a country where close family members reside may raise an issue under Art. 8 of the Convention (cf. e.g. Application No. 8041/77, X. v. the Federal Republic of Germany, DR 12, p. 197). In this present case, the Commission considers that the handing over of the applicant to the Indian Air Force, thereby effecting his involuntary return to India, and the consequential separation of the applicant from his wife and child, did constitute an interference with his right to respect for family life ensured by Art. 8 (1) of the Convention. The Commission notes, however, that Art. 5 (1) (f) of the Boovenmlend specifically envisages the possibility of extradition and other such expulsion agreements between States. The applicant was not being deported as an illegal immigrant, but was in effect extradited under a special procedure in compliance with a request for his surrender under the Visiting Forces Act (1952). It considers that such arrangements for the return of deserters from the armed forces constitute a normal form of assistance between States in the maintenance and regulation of their military and penal codes and could be said, in principle, to be necessary in a democratic society for the prevention of crime, within the meaning of Art. 8 (2). Taking into account the fact that the applicant enlisted in the Indian Air Force of his own free will at the age of 18 1/2, the Commission finds that the interference with the applicant's right to respect for family life by his return to India was justified for the prevention of crime within the meaning of Art. 8 (2). An examination of the complaint, as it has been submitted, does not therefore disclose any appearance of a violation of Art. 8 of the Convention. It follows that this aspect of the case is manifestly ill-founded within the meaning of Art. 27 (2) of the Convention. For these reasons, the Commission DECLARES THIS APPLICATION INADMISSIBLE. Secretary to the Commission Acting President of the Commission (H.C. Kruger) (C.A. Norgaard)