CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 décembre 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 22436/93                       by John Kwasi MINTA                       against the United Kingdom         The European Commission of Human Rights sitting in private on 1 December 1993, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber.         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 24 May 1993 by John Kwasi MINTA against the United Kingdom and registered on 10 August 1993 under file No. 22436/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a British citizen born in 1963 and resident in London. He is represented before the Commission by Mr. Philip Engelman, a barrister practising in London. The facts as submitted by the applicant may be summarised as follows.         The applicant claims that he was born in England on 11 October 1963. His full name was John Minta-Akuamoah, and his father's name John Kwasi Minta-Akuamoah. There is a birth certificate to this effect. At the age of 3, he went to Ghana with his parents.         At a date between 1971 and 1978, the applicant returned to the United Kingdom with his father. When his father returned to Ghana, the applicant was left with a guardian. In 1982, the guardian also returned to Ghana.         On 31 August 1988, the applicant obtained a British Visitor's passport (a BVP) with the intention of spending two weeks on holiday on the continent. The passport issued by a Post Office was in the shortened version of his name which he habitually used; namely, John Kwasi Minta.         On 29 September 1988, the applicant arrived in Dover from Zeebrugge. When he presented his passport at immigration control, the immigration officer was not immediately satisfied that the applicant was the rightful holder of the passport and required him to submit to further examination. It appears that when asked to confirm his name the applicant gave the full version of his name - John Kwasi Minta-Akuamoah - which did not appear on the passport. He was detained until 6 October pending further enquiries. He produced in support of his claimed identity his birth certificate, a provisional driving licence and a bank card. He gave the names of two persons to vouch for him, a lady who had known him for some years and his employer who had known him for six months.         On 6 October 1988, another immigration officer decided that the applicant required leave to enter and that he did not qualify for admission under the Immigration Rules.         The applicant appealed to an Adjudicator who, on 28 September 1989, noted that there was inconsistency in his account of when he had returned to the United Kingdom from Ghana and that there was no proof of his presence before 1987. There was no national insurance or benefits record. He held however that a passport that was not a forgery, upon which no unauthorised alterations had been made and which bore a photograph must be considered as constituting   satisfactory proof of identity for the purposes of obtaining leave to enter. He did not consider that the endorsement of a BVP to the effect that   "It will not however be accepted as definite evidence of National Status" was relevant in this context. The Adjudicator concluded that the applicant should therefore have been allowed to enter and allowed his appeal.         The Secretary of State appealed to the Immigration Appeal Tribunal. The Tribunal held on   25 May 1990 that neither the Adjudicator or itself had jurisdiction to examine the matter pursuant to section 13 (3) of the Immigration act 1971 as amended which provides that a person shall not be entitled to appeal against a decision that he requires leave to enter unless he holds a United Kingdom passport describing him, inter alia, as a British citizen. Since a BVP   does not include a description of the holder's nationality status, it held that the applicant had no possibility of appealing to the Adjudicator, whose determination was a nullity. The applicant would have had instead the right of appeal from overseas.         The applicant applied for judicial review of the Secretary of State's refusal and the Immigration Appeal Tribunal's refusal of jurisdiction. His application was refused by the High Court on 3 June 1991.         The High Court judge found that on construction of the relevant legislation all persons claiming to have the right of abode in the United Kingdom must, when on seeking entry to the United Kingdom a question as to their citizenship has arisen, prove that right by the stated means, namely, a passport describing him or her as a British citizen. He commented that:         ...<counsel for the Secretary of State> accepts that       British citizens -particularly those from ethnic minorities       - would not be well advised to travel on BVPs, for obvious       reasons....         "I have to say that this is a conclusion which I reach       without enthusiasm. The consequences... are indeed       unpalatable. It is to my mind a very unhappy result of this       legislation that British citizens entitled to enter and       leave the United Kingdom at will should, for lack of proof       by the specified means, be liable to be turned away on       returning from a daytrip to France in the course of which       they have mislaid their passports and compelled to set       about obtaining a replacement while remaining in France. It       is to be hoped that in the ordinary way persons who for one       reason or another are not in a position to furnish the       specified means of proof will be granted limited leave to       enter in order that they may from inside the United       Kingdom, either obtain the requisite documents or furnish       proof by other means...".         He concluded that no good ground had been shown for challenging the decision of the immigration officer or that of the Immigration Appeal Tribunal and that the application accordingly failed.         The applicant's appeal to the Court of Appeal was dismissed on 8 April 1992. The Court accepted the less rigorous construction put forward by the counsel for the Secretary of State that the legislation had the effect that an immigration officer might accept other evidence than a full passport as to the British citizenship of an entrant but that he was not required to do so. Only if an entrant provided a full United Kingdom passport describing him as a British citizen would an immigration officer be bound to accept it as proof.         Leave to appeal to the House of Lords was refused on 14 October 1992.         From 22 December 1988, the applicant was released on bail. Following the Court of Appeal decision, he left his address in order to avoid being deported.         On 24 May 1993, the applicant's legal representative introduced an application before the Commission. By letter dated 21 June 1993, the applicant's representative explained that the application could not have been submitted earlier since the applicant had remained incommunicado through an understandable fear of being apprehended and deported. He did not renew contact with his solicitors as a result until March 1993.   Relevant domestic law and practice         Section 13 (3) of the Immigration Act 1971 as amended provides as relevant:         "(1) Subject to the provision of this Part of this Act, a person       who is refused leave to enter the United Kingdom under this Act       may appeal to an adjudicator against the decision that he       requires leave or against the refusal...         (3) A person...shall not be entitled to appeal on the ground that       he has a right of abode in the United Kingdom against a decision       that he requires leave to enter unless-              (a) he claims to be a British citizen and produces... a            United Kingdom passport describing him as such a citizen or            a United Kingdom passport describing him as a citizen of            the United Kingdom and Colonies having a right of abode in            the United Kingdom;..."   COMPLAINTS         The applicant complains that the refusal of entry constituted discrimination on the grounds of race and that this amounts to degrading treatment within the meaning of Article 3 of the Convention. He submits that the refusal was based on the assumption that the he was not a British citizen despite his BVP and that this assumption would not have been made if he was not black.         The applicant complains under Article 5 para. 3 that he had no opportunity of challenging the impugned decisions by a trial of the factual issues. He invokes Article 5 para. 4 in that the Immigration Appeal Tribunal refused to accept jurisdiction in his case. The applicant complains under Article 6 in respect of the same matters.         The applicant further complains that he has no effective remedy in respect of his complaints as required by Article 13 of the Convention and that he has been discriminated against contrary to Article 14 of the Convention.   THE LAW         The applicant complains of the refusal of entry to   the United Kingdom, invoking Articles 3, 5 paras. 3 and 4, 6, 13 and 14 (Art. 3, 5-3, 5-4, 6, 13, 14) of the Convention.         The Commission however is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of these provisions, as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with the matter...within a period of six months from the date on which the final decision was taken".         In the present case, the decision of the House of Lords, which was the final decision regarding the subject of this particular application was given on 14 October 1992, whereas the application was submitted to the Commission on 24 May 1993, that is, more than six months after the date of this decision. While the applicant has not yet been deported, the Commission does not   consider that this can be construed as a continuing situation to which the six month rule is not applicable.         Furthermore, an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of six month period. The fact that the applicant did not keep in contact with his legal representatives   after he left his address to avoid possible deportation does not constitute a special circumstance, there being no indication that his situation rendered communication with his legal representatives impossible. The Commission notes that the applicant did in fact contact his solicitor in March 1993 within six months of the House of Lords decision but that there was a further delay of two months until 24 May 1993 before the application was introduced.         It follows that the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission by a majority         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber         (M.F. BUQUICCHIO)                         (A. WEITZEL)