25 Cases of Citizens of the United Kingdom and Colonies v. United Kingdom

European Commission of Human Rights

(a)Group I

Application No. 4403170 - Mr. S.M. PATEL

59. The applicant was born in Kenya on 24 July 1951. He is a citizen of the United Kingdom and Colonies and the holder of a United Kingdom passport. In his application form he stated that he had lost his job in Kenya. He applied to the British High Commission in Nairobi for a special voucher. He arrived in the United Kingdom on 24 January 1970, when he was refused admission and detained in Canterbury Prison. He was released from prison on 9 March 1970 and admitted to the United Kingdom for three months. He was subsequently reported to be working at the British Button Industry Co. Ltd. in London. His period of residence was extended to 9 September 1970. On 29 September he applied for his conditions to be revoked, to enable him to reside permanently in the United Kingdom. This application was refused and he was notified of his right of appeal under the Immigration Appeals Act 1969. The applicant lodged an appeal, but it was not heard as it was entered outside the time limits provided by the Rules of Procedure. An extension was granted until 9 March 1971, and he was told that it would be open to him to apply shortly before that date for a further extension. In June 1971 the applicant was given permission to reside permanently in the United Kingdom.

United Kingdom and Colonies and holder of a United Kingdom passport. He lived in Kenya for 10 years and subsequently moved to Uganda. In his application form he stated that he was not allowed to work, or to continue to reside, in Uganda. He arrived in the United Kingdom on 8 February 1970 and said that an application for a special voucher had been made to the British High Commission in Kampala on his behalf, but that he had been told that he would have to wait until March 1970 for the application to be dealt with and had therefore decided to come to the United Kingdom without a voucher (the British High Commission have no trace of the application). He was refused admission to the United Kingdom and detained in Ashford Remand Centre until 19 March, when he was released and admitted to the United Kingdom for three months. It was subsequently reported that he had obtained work with Rank Bush Murphy Ltd on 28 April 1970. His permitted period of stay in the United Kingdom was extended until 19 March 1971 and he was informed that it would be open to him to apply shortly before that date for a further extension. In June 1971 the applicant was given permission to reside permanently in the United Kingdom.

Application No. 4434/7O - Mr. M.R. PATEL

76. The applicant was born in India in 1914. He is a citizen of the United Kingdom and Colonies and holder of a United Kingdom passport (issued in Nairobi in 1964). He arrived in the United Kingdom at Dover on 8 February 1970, accompanied by his son, also called Mr. M.R. Patel, who was born in India in 1934 and is also a citizen of the United Kingdom and Colonies and holder of a United Kingdom passport. The applicant was refused admission and sent back, with his son, to Ostend. On 14 February 1970 he sought to enter the United Kingdom (again accompanied by his son) at London Airport. He was again refused admission and was detained, at first in the detention suite at London Airport and afterwards in Pentonville Prison until 23 February, when he was released and admitted to the United Kingdom for three months. In August 1970 the Home office were informed that the applicant and his son had opened a grocer's shop in Leicester. They were granted extensions of stay until 31 March 1971 and were informed that any application for a further extension would be considered shortly before that date. In June 1971 the applicant was given permission to reside permanently in the United Kingdom.

Application No. 4443/70 - Mr. P.J. SHAH

77. The applicant was born in India on 9 November 1945. He is a citizen of the United Kingdom and Colonies and holder of a United Kingdom passport. He arrived in the United Kingdom on 28 February 1970 stating that he was an engineering student and that he wished to enter the United Kingdom in order to continue his studies. He admitted that he had made no arrangements to follow a course of studies in the United Kingdom and he produced no evidence to show that his maintenance whilst residing in the United Kingdom was secured, He was refused admission and detained in the detention suite at London Airport until 3 March, when he was released and admitted to the United Kingdom for three months. This period was subsequently extended for a further three months, and on 1 October 1970 a further extension was granted until 3 April 1971. On 25 October 1970 the Home Office were informed that he was a full time student at Manchester University but would like to be able to take employment during the vacations. On 7 December 1970 the condition prohibiting the taking of employment which had been imposed on the applicant's admission in March was revoked, but he was requested to supply evidence of his status and means of maintenance when he next applied for a variation of his conditions, in June 1971 the applicant was given permission to reside permanently in the United Kingdom

Applications Nos. 4476/70 and 4477/70- Miss C. BAROT and Mr. B.M. BAROT

78. Miss Barot and her cousin Mr. Barot are both British protected persons (having been born in a part of Kenya which was at that time a British protectorate) and holders of United Kingdom passports. Miss Barot was born in Kenya on 16 September 1951 and Mr. Barot was born in Kenya on 2 June 1950. The applicants stated before the Commission that, not being citizens of Kenya, they were unable to get a job. Miss Barot applied to the British High Commission in Nairobi for a special voucher on 6 December 1969. Her cousin applied on 18 August 1969. They arrived in the United Kingdom at London Airport on 20 February 1970, were refused admission and detained in the detention suite at the airport until later the same day when they were released and admitted to the United Kingdom for three months. In September 1970 they applied for permanent residence in the United Kingdom. Their application was refused on 10 December and they have exercised their rights of appeal. The appeals were not heard but the applicants were granted further extensions of stay until 20 June 1971 and informed that shortly before that date it would be open to them to apply for further extensions. In June 1971 the applicants were given permission to reside permanently in the United Kingdom.

Application No. 4478/7O - Mr. P.G. CHANDARANA

79. The applicant was born in India on 16 June 1943. He is a citizen of the United Kingdom and Colonies and holder of a United Kingdom passport. In his application form he stated that he was ordered to leave Uganda before 1 May 1970. He applied to the British High Commission in Kampala on 24 November 1969 for a special voucher. The applicant's wife, who was exempt from control under the Commonwealth Immigrants Acts, left Uganda for the United Kingdom on 6 March 1970 and has since been resident in the United Kingdom. Mr. Chandarana subsequently left Uganda and tried to enter the United Kingdom indirectly, travelling overland through Europe. In June he became stranded in Belgrade, where he was in due course issued with an entry certificate admitting him to the United Kingdom for a period of three months. He applied for an extension of this period and an extension was granted until 29 April 1971. He was informed that shortly before that date it would be open to him to apply for a further extension. In June 1971 the applicant was given permission to reside permanently in the United Kingdom.

Application No. 4486/70- Mr. C.P. PATEL

80. The applicant was born in India on 5 July 1922. He is a citizen of the United Kingdom and Colonies and holder of a United Kingdom passport. He stated before the Commission that he had to close his grocery in Uganda on I January 1970. He applied to the British High Commission in Kampala for a special voucher on 11 July 1969. His wife and six children, who were exempt from United Kingdom immigration control, arrived in the United Kingdom, where they have since resided, in February 1970. The applicant arrived in the United Kingdom on 4 June 1970, was refused admission and

(b)Group II

Application No. 4501/70 - Mr. H.G. PATEL

81. The applicant was born in India in 1935. He is a citizen of the United Kingdom and Colonies and holder of a United Kingdom passport. He applied to the British High Commission in Kampala for a special voucher in March 1969. His application was considered but it was not found possible to issue him with a special voucher at that time and he was accordingly placed on the waiting list for the issue of vouchers.

At the time of his application to the Commission the applicant was still resident in Uganda. He stated in his application form that his wife, who was exempt from control under the 1962 and 1968 Acts, had arrived in the United Kingdom with their four children in March 1970. He also had a brother resident in the United Kingdom.

The applicant sought to enter the United Kingdom at Newhaven on 4 June 1970 where he was examined by an immigration officer in accordance with paragraph I (1) of Schedule I to the 1962 Act. The applicant told the immigration officer that he was coming to join his wife and four children who were already resident in the United Kingdom. As he was not in possession of an employment voucher or special voucher, the immigration officer refused him entry into the United Kingdom under section 2 of the 1962 Act. The reasons for refusal were explained to him and he was informed that he could communicate with anyone he wished. The applicant was detained in police cells at Newhaven until 1800 hours on 5 June when he was sent back to Dieppe.

The applicant subsequently sought to enter the United Kingdom at Folkestone on 7 June 1970 where he was again examined and refused admission for the same reasons. He was detained in Canterbury Prison under paragraph 4 (1) of the First Schedule to the 1962 Act until 14 June, when he was sent back by air to Entebbe (Uganda), but the Uganda authorities refused to re-admit him. He was therefore returned to the United Kingdom, arriving at London Airport on 16 June where he was again examined by an immigration officer in accordance with paragraph I (1) of Schedule I to the 1962 Act. The applicant made it clear that he was seeking entry for

Application No. 4526/70 - Mr. L.D. TANK

82. The applicant is a British protected person who was born in 1932 in the territories now comprised in Tanzania; he holds a United Kingdom passport. In his application form he stated that, having been out of work since 1968, he applied to the British High Commission in Kampala for a special voucher in January 1970 and was asked to attend for interview on 31 July. It was not possible to issue him with a special voucher at that time and he was therefore placed on the waiting list for the issue of vouchers.

The applicant decided to travel to the United Kingdom before the date of his interview and without the necessary documents. En route to the United Kingdom, he was refused entry into Austria and became stranded in Belgrade. The applicant was issued with an entry certificate by the British Embassy in Belgrade on 26 June 1970 to enable him to visit the United Kingdom. He was admitted to the United Kingdom on arrival at Dover on 29 June for a period of three months.

The applicant called at the Home Office on 26 October 1970 and an extension of his permitted stay in the United Kingdom was granted until 29 March 1971. He was invited to apply for a further extension. On 8 February 1971, the British Deputy High Commission in Bombay referred to the Home Office an application for entry certificates to enable the applicant's wife and five daughters to come to the United Kingdom from India. The issue of entry certificates was authorised by the Home Office on 18 March 1971 and the applicant was informed of this decision. In June 1971 the applicant was given permission to reside permanently in the United Kingdom.

Application No. 4530/70 - Mr. D.S. PATEL

86. The applicant was born in Uganda in 1941. He is a citizen of the United Kingdom and Colonies and holder of a United Kingdom passport.

In his application form he stated that, not being a citizen of Uganda, he was out of work from January 1970. He had applied to the British High Commission in Kampala for a special voucher on 29 October 1969 and been told that his application would be reviewed in a month's time It was not possible to issue him with a special voucher at that time and he was therefore placed on the waiting list for the issue of vouchers.

The applicant decided to travel to the United Kingdom without the necessary documents, leaving his wife and son in Uganda. After being refused entry into Holland he became stranded in Belgrade. On 26 June 1970 the applicant was issued with an entry certificate by the British Embassy in Belgrade to enable him to visit the United Kingdom and on 29 June he was admitted to the United Kingdom at Dover for a period of three months.

On 12 September 1970, the applicant applied to the Home Office for an extension of his permitted stay in this country. It was decided to grant an extension until 29 March 1971. He was invited to apply for a further extension of his permitted stay.

On 26 October 1970, the applicant also wrote to the Home Office for advice on the admission of his wife and son to the United Kingdom. It was decided that Mrs. Patel and her son might be issued with entry certificates on application and the applicant was advised that his family should make application for entry certificates to the British High Commission in Kampala.

In June 1971 the applicant was given permission to reside permanently in the United Kingdom.

PART IV
OPINION OF THE COMMISSION

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 Convention1[1]

(a)Introduction

179. 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 - 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 2[2]

180. Having considered the merits of the applications, the Commission now finds that only Article 3, and only in so far as it prohibits "degrading treatment", is relevant in this connection and it therefore proposes to examine whether the above actions of the United Kingdom authorities constituted such treatment.

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 .3[3]

181. In discussing the point at issue under Article 3, the Commission further proposes to distinguish between two groups of cases:

-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, 4423/7O, 4434/70, 4443/7O, 4478/70, 4486/70, 4501/70 and 4527/70-4530/70)

182. Article 3 of the Convention provides inter alia that no one shall be subjected to "degrading treatment".

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.

183. 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.

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, discrimiiation cannot by itself constitute "degrading treatment".

(aa)Preliminary observations concerning the right of entry

184. In its decision of 10 October 1970 on the admissibility of the applications in Group I4[4]4, 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" and in "Articles 1 to 3 of the First Protocol to 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".

185. 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.

186. The Commission now confirms this view. It refers in this connection to its case-law concerning the right of asylum and the fight of an alien not to be expelled. Although neither of these rights is guaranteed by the Convention5[5]5, 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 treaty6[6] 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 7[7]

187. 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 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

188. 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.

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 8[8] It will next take account of the preparatory work, as supplementary means of interpretation 9[9]9, and finally consider the relation of its own jurisprudence to the interpretation reached.

189. 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" 1[10]

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.

190. The Government suggest a further limitation: they submit that the term "degrading treatment" must be interpreted as referring to physical acts only.

191. The Commission considers that such interpretation of "degrading treatment" would be too restrictive. Even in the case of torture and inhuman treatrnent, such a physical element is not essential.

The Government themselves quote the passage in the Commission's Report in the First Greek case a[11] dealing with Article 3:

"The notion of inhuman treatment covers at least such treatment as deliberately causes severe suffering, mental or physicalb[12]12, 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 c[13] 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 assault" 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.

192. 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 d[14] 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 Reservations to the Convention on Genocide which, like the European Convention on Human Rights, has a humanitarian character. In that Opinion the Court statede[15]15:

"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."

193. 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 f[16]

194. 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.

195. The Commission finally recalls its own statement in the First Greek Case g[17] 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".

This definition is similar to the interpretation reached in paragraph 189 above; in 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

196. In its decision on the admissibility of the applications in Group I h[18]18, 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".

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;

-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

197. 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 i[19] This issue has been further discussed by the parties in their oral and written submissions to the Commission.

198. The Commission notes j[20] that the 1968 Act:

-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.

199. The Commission finds it established that the 1969 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 k[21]

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 Kingdoml[22]22, 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" m[23]

200. 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 of 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" n[24]24; and the Government submitted in the present proceedings that the Act was intended to promote "racial harmony".

201. 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.

202. 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.

It recalls, first, that the 1968 Act was preceded by the British Nationality Act 1964. The latter Act, as stated above o[25]25, 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 p[26]26; 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.

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 2[27]

"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

203. 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 .2[28]

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 Independence 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 2[29]292;

-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 2[30]303;

-the provision of the 1962 Act2[31] 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 of 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 Colonies2[32]

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 Kingdom2[33] 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.

204. 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.

205. 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.

206. 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" 2[34]347, which had been introduced by the East African States in the years following their independence2[35]358, most of the Asians concerned were deprived of their livelihood and rendered destitute: their trading licences and trading areas were restricted2[36] 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 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 factors3[37]

(ff)Conclusion

207. The Commission has stated above3[38] 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 discrimination based on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 of the Convention3[39]

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 question3[40]

208. 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 above3[41]414, amounted to "degrading treatment" in the sense of Article 3 of the Convention.

209. It therefore concludes, by six3[42] votes against three3[43] votes, that Article 3 has been violated in the present cases.

(gg)Final observations (Article 25)

210. The Commission notes that during the present proceedings all 25 applicants were 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.

211. 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.

212. 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.

(c)The six cases of British protected persons (Applications Nos. 4410/70, 4411/70, 4414/70, 4476/70, 4477/70 and 4526/70)

213. 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:

-according to English law, British protected persons, although not aliens, are not British subjects3[44]447;

-they became and remained subject to immigration control under the 1962 Act3[45]458;

-their position as regards entry to the United Kingdom was not changed by the 1968 Act3[46]469;

-the immigration legislation concerned did not distinguish between different groups of British protected persons on any ground of race or colour.

214. The Commission considers that, in view of the above circumstances, the legislation complained of cannot in the present cases of British protected persons be regarded as discriminatory and even less as constituting degrading treatment in the sense of Article 3 of the Convention.

215. The Commission therefore concludes unanimously4[47] that Article 3 has not been violated in these cases.

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

216. The second point at issue in the present applications4[48] 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.

(a)Article 5

217. Article 5 para. 1, first sentence, states that everyone has the right "to liberty and security of person" (in the French text: "A la liberté et A la sûreté").

It follows from the terms of its decision on the admissibility of the applications in Group I4[49] that, at the present stage, the Commission is only concerned with " security" and not with "liberty" of person.

218. 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 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.

219. The Commission considers that the term "security of person" under Article 5 of the Convention must be interpreted in its particular context4[50] The full text of Article 5 reads as follows:

"(1)Everyone has the right to liberty and security of person.

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 I (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 of the provisions of this Article shall have an enforceable right to compensation."

220. 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".

221. 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.

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.

222. 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.

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.

223. 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.

224. The Commission concludes, by eight4[51] votes against one4[52] vote, that Article 5 of the Convention has not been violated in the present cases.

(b)Article 14 in conjunction with Article 5

225. 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.

226. It is accepted by both parties, following the judgment of the European Court of Human 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 alone4[53] 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 Articles4[54] 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.

227. 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.

228. The Commission therefore concludes, by eight votes4[55] against one4[56] vote, that there has been no violation of Article 14 in conjunction with Article 5.

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

229. 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".'

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".

230. 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 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.

231. The Commission notes that:

(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 Commonwealth citizen resident in the United Kingdom: she was entitled to admission for settlement, provided she held an entry certificate evidencing fulfilment of this provision5[57]570;

(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 expressly5[58]581:

"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 employment 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.

232. 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.

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.

233. It concludes, by seven5[59] votes against two5[60] votes, that there has in these cases been a violation of Article 14 in conjunction with Article 8.

234. The Commission finally notes that during the present proceedings the three applicants concerned were eventually given permission to stay permanently in the 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

235. 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.

236. It concludes unanimously that they need not be examined further5[61] and therefore expresses no opinion in regard to them.

RESOLUTION DH (94) 30
(adopted by the Ministers' Deputies on 21 March 1994)
RELATING TO APPLICATIONS N°° 4403/70-4419/70, 4422/70, 4423/70, 4434/70, 4443/70, 4476/70-4478/70, 4486/70, 4501/70 and 4526/70-4530/70 EAST AFRICAN ASIANS against the UNITED KINGDOM

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.



[1]

1 See also Part V - individual opinions of MM. Fawcett and Welter [not reproduced in this volume].

[2]

2 Cf. paragraph 4, above.

[3]

3 The Commission also refers in this connection to the considerations set out in paragraph 226, below.

[4]

4 Collection 36 p. 92, Yearbook 13 p. 928.

[5]

5 Cf., for example, Nos. 4802/71 and 5564/72, Collection 42 pp. 35, 39 and 114, 121 respectively.

[6]

6 No. 4314/69, Collection 32 pp. 96, 97.

[7]

7 No. 1802/62, Yearbook 6 pp. 462, 480.

[8]

8 Cf. Article 31 of the Vienna Convention,

[9]

9 Cf. Article 32 of the Vienna Convention.

[10]

10 Memorial on the merits, paragraph 15 [not reproduced in this volume].

[11]

a Report of 5 November 1969, Yearbook 12 p. 186

[12]

b Emphasis added

[13]

c Loc. cit., p. 461

[14]

d Report of 1 June 1973, paragraph 44, loc. cit.

[15]

e I.C.J. Reports 1951, pp. 15. 23

[16]

f Cf. Golder Report, paragraph 44, loc. Cit., with a quotation, in footnote 1, from No. 788/60, Austria v. Italy, Dec. 11,1.61, Yearbook 4 pp, 116,140.

[17]

g Loc. cit.

[18]

h Collection 36, pp. 92, 117, Yearbook 13 pp. 928, 994.

[19]

i See paragraphs 34 and 40-41, above.

[20]

j See paragraph 32, above.

[21]

k See paragraphs 34 et seq., above.

[22]

l See paragraph 36, footnote [5], above.

[23]

m Cf. the statement made by Lord Stonham, Minister of State at the Home Office, before the House of Lords on 29 February 1968, quoted in paragraph 41, above.

[24]

n See paragraph 40, above.

[25]

o See paragraph 27, above.

[26]

p See paragraph 44, above.

[27]

20 See paragraph 44, p. 32, footnote [1], above.

[28]

21 See paragraphs 34 et seq., above.

[29]

22 Cf. paragraph 22, footnote [1], above.

[30]

23 CL paragraph 23, above.

[31]

24 Section 1 (2); cf. paragraphs 17 and 23, above.

[32]

25 Cf. paragraph 28, above.

[33]

26 See e.g. paragraph 35, above (Mr. Maudling).

[34]

27 See paragraphs 29 et seq., above.

[35]

28 As stated in paragraphs 19 and 24, footnote [1], above, Tanzania became independent in 1961, Uganda in 1962 and Kenya in 1963.

[36]

29 See paragraphs 29 et seq., above.

[37]

30 See paragraph 196 in fine.

[38]

31 Paragraphs 201 and 202.

[39]

32 See paragraph 196, above.

[40]

33 See the Commission's decision on the admissibility of the applications in Group I Collection 36 pp. 92, 117, Yearbook 13 pp. 928, 994.

[41]

34 Paragraphs 203-206.

[42]

35 In addition, two other members of the Commission, who were not present when the vote was taken, expressed their agreement with this conclusion.

[43]

36 Vote taken on 11 October 1971.

[44]

37 See paragraphs 9 and 11, above.

[45]

38 See paragraphs 18 and 24, above.

[46]

39 See paragraph 32 in fine (p. 24, footnote [1]), above.

[47]

40 Vote taken on 11 October 1973.

[48]

41 Cf paragraph 4, above.

[49]

42 Collection 36 pp. 92, 118, Yearbook 13 pp. 928, 996.

[50]

43 Cf the principles of interpretation set out in paragraph 188, above.

[51]

44 In addition, two other members of the Commission, who were not present when the vote was taken, expressed their agreement with this conclusion.

[52]

45 Vote taken on 11 October 1973.

[53]

46 Judgment of 23 July 1968, loc. cit., p. 33, paragraph 9.

[54]

47 See paragraph 221 above.

[55]

48 In addition, two other members of the Commission, who were not present when the vote was taken, expressed their agreement with this conclusion.

[56]

49 Vote taken on 11 October 1973.

[57]

50 See paragraphs 33 and 48, footnote [5], above.

[58]

51 See paragraph 48, footnote [5], above.

[59]

52 In addition, two other members of the Commission, who were not present when the vote was taken, expressed their agreement with this conclusion.

[60]

53 Vote taken on 11 October 1973.

[61]

54 Vote taken on 11 October 1973.

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