FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 7673/08
by Hayri IYISAN
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 9 February 2010 as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 30 January 2008,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Hayri Iyisan, is a Turkish national who was born in 1947 and lives in Adana. He was represented before the Court by Mr H Tepe, a lawyer practising in Ankara. The United Kingdom Government (“the Government”) were represented by their Agent, Ms J Gladstone of the Foreign and Commonwealth Office.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant came to the United Kingdom in 1970. He was granted leave to enter and remain, which permitted him to work in the United Kingdom. On 12 January 1975 he was granted Indefinite Leave to Remain.
In December 1972 the applicant married a British citizen. His wife was born in Cyprus in 1952 but she came to the United Kingdom when she was twelve years old, while Cyprus was still under British control. She speaks Turkish.
The applicant and his wife have a daughter, who was born in the United Kingdom on 12 January 1976. She is a British citizen. She married in 2001 and has two children, born on 30 August 2002 and 1 May 2006, who are also British citizens. Her husband's family are Turkish and she travels to Istanbul approximately once a year to visit them.
On 19 September 2001 the applicant was convicted of the importation of controlled drugs. Together with two accomplices, he had imported 7.1 kilograms of pure heroin, worth GBP 426,000. Although it was the applicant's first offence, the sentencing judge noted that he had organised the importation and although he had pleaded guilty, he had only done so at a late stage. He was sentenced to thirteen years' imprisonment but was not recommended for deportation. He did not appeal against sentence or conviction.
On 6 September 2006 the Secretary of State for the Home Department wrote to the applicant, asking him to submit reasons why he should not be deported. The applicant's representations were considered but on 15 March 2007 the Secretary of State advised the applicant that he intended to deport him on the ground that his deportation would be conducive to the public good. On 19 March 2007 the applicant was issued with a Decision to Make a Deportation Order. The applicant appealed to the Asylum and Immigration Tribunal (“AIT”). In a decision dated 15 August 2007, the AIT dismissed the appeal, holding, inter alia, that the applicant's crime was too serious for his deportation to be found to be disproportionate, notwithstanding the interference with his private and family life in the United Kingdom. On 11 September 2007 the AIT decided not to make an order for reconsideration. The applicant considered renewing his application to the High Court, but counsel advised him that it would be virtually impossible to challenge the AIT's decision.
On 5 December 2007 the applicant was served with a deportation order. He was deported to Turkey on 7 January 2008.
B. Relevant domestic law and practice
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. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision on the grounds, inter alia, that the decision is incompatible with the Convention.
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
A person who has been deported may apply to have the deportation order revoked. Paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended) provide that:
“390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:
(i) the grounds on which the order was made;
(ii) any representations made in support of revocation;
(iii) the interests of the community, including the maintenance of an effective immigration control;
(iv) the interests of the applicant, including any compassionate circumstances.
391. In the case of an applicant who has been deported following conviction for a criminal offence continued exclusion
(i) in the case of a conviction which is capable of being spent under the Rehabilitation of Offenders Act 1974, unless the conviction is spent within the meaning of that Act or, if the conviction is spent in less than 10 years, 10 years have elapsed since the making of the deportation order; or
(ii) in the case of a conviction not capable of being spent under that Act, at any time, unless refusal to revoke the deportation order would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees.
will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before, or the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order.
392. Revocation of a deportation order does not entitle the person concerned to re-enter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or direct to the Home Office.”
COMPLAINT
The applicant complained that his deportation violated his right to a private and family life under Article 8 of the Convention.
THE LAW
A. The parties' submissions
1. The Government
The Government submitted that the applicant's application was manifestly ill-founded and so should be declared inadmissible in accordance with Article 35 § 3 of the Convention.
They accepted that the applicant's deportation constituted a serious interference with his rights under Article 8 of the Convention. They submitted, however, that the decision was made in pursuance of legitimate aims, namely the prevention of disorder and crime and the protection of health, morals and the rights and freedom of others. They further submitted that the applicant's deportation struck a fair balance between his rights under Article 8 and the legitimate aim pursued.
In particular, the Government argued that the Secretary of State was entitled to regard offences involving the trafficking of heroin and similar drugs as offences which were particularly serious and harmful to society. They noted that the Court has, on numerous occasions, held that deportation orders made against drug trafficking offenders were compatible with Article 8, even where they entailed a serious interference with Article 8 rights (see Dalia v. France, 19 February 1998, Reports of Judgments and Decisions 1998‑I; C. v. Belgium, 7 August 1996, Reports of Judgments and Decisions 1996‑III; D. v. the United Kingdom, 2 May 1997, Reports of Judgments and Decisions 1997‑III; and El Boujaïdi v. France, 26 September 1997, Reports of Judgments and Decisions 1997‑VI).
The Government accepted that the applicant had lived in the United Kingdom since 1970 and enjoyed family life there by virtue of his marriage. Nevertheless, they submitted that the applicant had spent the first twenty-three years of his life in Turkey and must have established social and other relationships during that time. Moreover, he spoke Turkish and his siblings lived in Turkey. In this respect the facts were analogous to Dalia v. France, in which no violation was found, and to Caglar v. Germany, which was found to be manifestly ill-founded. In relation to the applicant's wife, the Government submitted that while it would be difficult for her to move to Turkey, it would not be “practically impossible”. Although she had not lived in Turkey, she spoke Turkish and was close to her son-in-law's family in Turkey. Moreover, the applicant's daughter and her family regularly travelled to Turkey to visit her husband's family and the applicant would therefore be able to maintain contact with his daughter and grandchildren following his deportation.
In conclusion, the Government submitted that in view of the severity of the offence committed by the applicant, the interference with his rights under Article 8 was proportionate to the legitimate aims pursued and his application to the Court was therefore manifestly ill-founded. Alternatively, if the application was found to be admissible, for the reasons set out above the Government submitted that there had been no breach of the Convention.
The applicant
The applicant submitted that his deportation violated his right to respect for his private and family life. He submitted that he had lived in the United Kingdom since 1970 and, with the exception of the one conviction which gave rise to the deportation order, his behaviour had been exemplary. Moreover, his wife was a British citizen who had never lived in Turkey and she could not join him there. His deportation therefore resulted in separation from his wife, his daughter and his grandchildren.
The applicant further submitted that the Secretary of State for the Home Department waited until five years after his conviction before serving him with notice of intention to deport, which meant that at the date of deportation he was sixty years old, and it was therefore extremely difficult for him to relocate to Turkey. Since his deportation he has been unemployed and living alone in extremely difficult conditions.
Finally, the applicant submitted that his deportation was contrary to paragraph 4 (b) of the Council of Europe's Recommendation Rec(2000)15 Concerning the Security of Long-Term Migrants which recommended that “after twenty years of residence, a long-term immigrant should no longer be expellable”.
B. The Court's assessment
The Government have accepted that the applicant's deportation constituted a serious interference with his right to respect for his private and family life under Article 8 of the Convention and the Court endorses this view. The applicant lived in the United Kingdom for thirty-eight years. He was married to a British citizen and they lived together in the United Kingdom for thirty-six years. His relationship with his wife clearly constituted “family life” for the purposes of Article 8. The Court recalls, however, that in immigration cases it has held that there will be no family life between parents and adult children unless they can demonstrate additional elements of dependence (Slivenko v. Latvia [GC], no. 48321/99, § 97, ECHR 2003‑X; Kwakye-Ntl and Dufie v. the Netherlands (dec.), no. 31519/96, 7 November 2000). The applicant's daughter, who was born in 1976, is married with two children and the applicant has not demonstrated that his relationship with her constituted family life for the purposes of Article 8 of the Convention.
The Court finds that the impugned measure had a basis in domestic law, namely section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999). Moreover, the applicant has not disputed that the interference with his Article 8 rights served a legitimate aim, namely the prevention of disorder and crime and the protection of health and morals. The principal issue to be determined is therefore whether the interference was “necessary in a democratic society”. The relevant criteria that the Court uses to assess whether an expulsion measure is necessary in a democratic society have recently been summarised as follows (see Üner v. the Netherlands [GC], no. 46410/99, §§ 57 - 58, ECHR 2006‑...):
“57. Even if Article 8 of the Convention does not therefore contain an absolute right for any category of alien not to be expelled, the Court's case‑law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision (see, for example, the judgments in Moustaquim v. Belgium, Beldjoudi v. France and Boultif v. Switzerland, [cited above]; see also Amrollahi v. Denmark, no. 56811/00, 11 July 2002; Yilmaz v. Germany , no. 52853/99, 17 April 2003; and Keles v. Germany, 32231/02, 27 October 2005). In the case of Boultif the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria, as reproduced in paragraph 40 of the Chamber judgment in the present case, are the following:
- the nature and seriousness of the offence committed by the applicant;
- the length of the applicant's stay in the country from which he or she is to be expelled;
- the time elapsed since the offence was committed and the applicant's conduct during that period;
- the nationalities of the various persons concerned;
- the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life;
- whether the spouse knew about the offence at the time when he or she entered into a family relationship;
- whether there are children of the marriage, and if so, their age; and
- the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.
58. The Court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment:
- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and
- the solidity of social, cultural and family ties with the host country and with the country of destination.”
The Court reiterates that in view of the devastating effects of drugs on people's lives, it understands why the authorities show great firmness with regard to those who actively contribute to the spread of this scourge (Dalia v France, cited above, § 54; Bhagli v France, cited above, § 48). The applicant's offence was particularly serious as it involved the importation of a large quantity of heroin and the sentencing judge noted that he played a central role in organising the crime. The severity of the offence is reflected in the fact that the applicant was sentenced to thirteen years' imprisonment. Even though this was the only offence that the applicant was convicted of while he was resident in the United Kingdom, the severity of the offence must weigh heavily in the balance.
The Court observes that while the applicant has lived in the United Kingdom for thirty-eight years, he was twenty-three when he left Turkey and his siblings and his son-in-law's family still live there. It is therefore clear that he maintains social, cultural and family ties in Turkey. While the applicant's wife has never lived in Turkey, she speaks Turkish and is close to her son-in-law's family there. Moreover, the applicant's daughter and her family regularly visit relatives in Turkey and it is therefore likely that the applicant will still enjoy regular direct contact with his daughter and his grandchildren following his deportation.
The Court does not find any substance in the applicant's complaint that it was unfair of the Secretary of State to wait five years before serving the notice of intent to deport. The Secretary of State is free to take this decision at any time. Nothing in the Immigration Act 1971 or the Immigration Rules HC 395 (as amended) could have given rise to a legitimate expectation that a decision would be taken within any given time-frame (Onur v. the United Kingdom, no. 27319/07, § 52, 17 February 2009).
In spite of the length of the applicant's residence in the United Kingdom, and notwithstanding the Council of Europe's Recommendation Rec(2000)15 Concerning the Security of Long-Term Migrants, the Court finds that, if considered against the criteria set down in Boultif v. Switzerland, no. 54273/00, ECHR 2001‑IX and Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006‑..., the interference with the applicant's private and family life was proportionate to the legitimate aims pursued, namely the maintenance of an effective system of immigration control, the prevention of disorder and crime and the protection of health and morals. In particular, the Court has had regard to the seriousness of the applicant's criminal offence and the maintenance of social, cultural and family ties to Turkey.
It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares application inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy