CASE OF A.H. KHAN v. THE UNITED KINGDOM
No violation of Art. 8
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
5. The applicant was born in 1971 and lives in Pakistan. He is the elder brother of the applicant in the case of A.W. Khan v. the United Kingdom, no. 47486/06, 12 January 2010. 6. The present applicant appears to have travelled from Pakistan to the United Kingdom with his family in 1978. He was subsequently granted indefinite leave to remain in the United Kingdom as the dependant of his parents. There is some dispute as to whether he remained continuously in the United Kingdom after his arrival, but it is clear that he returned to Pakistan at least twice prior to his deportation and that he married there in 1989. His current marital status and the whereabouts of his wife are not known. 7. The applicant’s mother and siblings still live in the United Kingdom and are all naturalised British citizens. The applicant claimed, furthermore, that his mother was in poor health with diabetes and a heart condition and as such was more than normally dependent on the applicant and her other children. The applicant has six children, all of whom were born in the United Kingdom, by two separate partners. His children are aged between 12 and 17 years. At the time of his deportation, the applicant claimed to be in a relationship not with either of the mothers of his children but with a third British citizen, whom he had started seeing whilst in immigration detention in 2008. 8. On 18 February 1992, the applicant was convicted of having sexual intercourse with an underage female and of two counts of attempted robbery. He was sentenced to four years’ imprisonment in a young offenders’ institution. On 30 November 1994, he was convicted for the theft of a vehicle and sentenced to two hundred hours of community service. On 4 January 1996, the applicant was convicted of driving whilst disqualified and without insurance and sentenced to twenty weeks’ imprisonment. He was also disqualified from driving for three years. 9. The applicant appears to have spent three months in Pakistan in 1998. On 19 December 2000, he was convicted of two counts of battery and of resisting or obstructing a constable, and sentenced to four months’ imprisonment. On 26 January 2001, following a conviction for dangerous driving and other related offences, the applicant was sentenced to eighteen months’ imprisonment, disqualified from driving for a further three years, and disqualified until he passed a driving test. 10. On 5 July 2001, the applicant was convicted of robbery, for which he was initially sentenced to six years’ imprisonment. The sentence was reduced to five years on appeal. As a result of this conviction, deportation proceedings against the applicant commenced and on 22 May 2006, he was notified of the Secretary of State’s intention to make a deportation order against him. 11. The applicant did not exercise his right of appeal against the decision to deport him and the deportation order was signed on 2 October 2006. The applicant was convicted of a further driving offence in 2006. Directions were set for his removal to Pakistan on 25 June 2008, but cancelled when the applicant sought judicial review. The judicial review application was withdrawn by consent following agreement that further consideration would be given to the applicant’s case on human rights grounds. A decision was made on 15 October 2008 to refuse to revoke the deportation order but to grant the applicant an in-country right of appeal against this decision. 12. The applicant’s appeal was dismissed by the Asylum and Immigration Tribunal (“the Tribunal”) on 27 January 2009. The appeal was argued purely on the grounds of Article 8. The Tribunal accepted that the applicant enjoyed family life in the United Kingdom. Although there were no insurmountable obstacles to his two partners, both of whom were of Pakistani origin, and his children accompanying him to Pakistan, it was accepted that it would be unreasonable to expect them to do so, given that all were British citizens and the children had been educated in the United Kingdom. There was little evidence before the Tribunal as to the impact that the applicant’s deportation would have on his children, since neither of the two mothers of his children nor any third party had attended the hearing to give evidence. In any event, it was noted that the applicant had not seen any of his children since he had been remanded in custody in 2000, though he claimed to speak to all of them by telephone every day. 13. The Tribunal did not believe the applicant’s claims not to have returned to Pakistan since his arrival in the United Kingdom and not to have married there, since there was evidence to the contrary. It was not therefore accepted that he had no connections in Pakistan. No serious difficulty for the applicant in re-establishing himself in Pakistan was envisaged. 14. The Tribunal accepted that Article 8 would be engaged by the applicant’s deportation, since he would inevitably be separated from his partners and children. However, the interference with his family life would be proportionate, having regard on the one hand to the applicant’s persistent offending and the high risk he posed to p ublic safety, as assessed by his probation officer, and, on the other, to the lack of evidence as to a meaningful relationship between the applicant and his children over the past eight years. 15. An application for reconsideration of the Tribunal’s decision was refused on 15 May 2009. Directions were again set for the applicant’s removal, but cancelled when he claimed asylum on 25 June 2009. The basis of his claim was that his parents’ families in Pakistan might seek to harm him because they had disapproved of his parents’ love marriage and their emigration to the United Kingdom; and that the relatives of three women with whom he had had relationships in the United Kingdom were also after him. It is not clear who the women concerned were. His asylum claim was refused on 20 October 2009, since the applicant had had no direct contact with any of those persons whom he claimed to fear and it was not believed that any of them would recognise him, or know that he had returned to Pakistan, or be able to trace him. In any event, there was found to be a sufficiency of protection against the actions of non-state actors available in Pakistan. The applicant’s asylum claim was certified as clearly unfounded, meaning that he had no further right of appeal from within the United Kingdom. 16. The applicant made further representations on 16 November 2009 and 13 and 14 January 2010, claiming that he feared his current partner’s ex-husband, who had recently been deported to Pakistan, and that he was taking medication, namely methadone and various sleeping tablets, which would not be available to him once deported. His representations were rejected on 18 January 2010, as the applicant had not raised any new issues regarding his fear of return and his family life had previously been considered by the Tribunal. As to his concerns regarding his health, there were mental health facilities available in Pakistan. In any event, the applicant had been assessed by medical staff at the immigration detention centre as being fit to fly and had not been noted as having any particular medical problems. 17. Directions were set on 5 January 2010 for the applicant’s deportation to Pakistan on 20 January 2010. The applicant sought permission to apply for judicial review of the decision to set removal directions, but his application was refused by the High Court on 12 February 2010. In the meantime, the applicant had also sought interim measures from this Court under Rule 39 of the Rules of Court on 2 February 2010, to prevent his deportation which had been reset for 15 February 2010. His application for interim measures was refused on 12 February 2010. 18. The applicant was deported to Pakistan on 15 February 2010. 19. Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. 20. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision, inter alia, on the grounds that the decision is incompatible with the Convention. 21. 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. 22. Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides: “353. When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.” A fresh claim, if it is accepted as such by the Secretary of State, and if refused, gives rise to a fresh right of appeal on the merits. If submissions are not accepted as amounting to a fresh claim, their refusal will give rise only to a right to seek judicial review of the decision not to treat them as a fresh claim.