European Court of Human Rights

1 April 2009

FOURTH SECTION

Application no. 7673/08
by Hayri IYISAN
against the United Kingdom
lodged on 30 January 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Hayri Iyisan, is a Turkish national who was born in 1947 and currently lives in Adana.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant came to the United Kingdom in 1970. He appears to have been 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 only pleaded guilty at a late stage. He was sentenced to thirteen years imprisonment but was not recommended for deportation.

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 5(3)(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 complains that his deportation violated his right to a private and family life under Article 8 of the Convention.

QUESTION TO THE PARTIES