Douglas v Hello! Ltd (No 1)

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Thursday, 21st December 2000

Mehmet Sezek is a Turkish national who came to this country in 1976. In 1983 he was granted indefinite leave to remain, as were his Turkish wife and daughter. In 1991 his wife and daughter were granted British nationality but his application was refused presciently for want of good character. Mr. Sezek also has a 20 year old son who has British nationality by birth. Mr. Sezek, his wife, daughter and son also all have Turkish nationality and passports.

In March 1994 Mehmet Sezek was convicted before the Chelmsford Crown Court of an offence of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of heroin. The quantity involved was some 34 kilograms with an estimated street value of £4 million. He was sentenced to 16 years' imprisonment from which he expects to be released early on licence on 23rd January 2001. No recommendation for deportation was made by Chelmsford Crown Court —so far as can be inferred, because the issue was not raised rather than because it was raised but the recommendation positively rejected.

In November 1994 the Secretary of State for the Home Department wrote to Mr. Sezek notifying him that his immigration status was being reviewed, and in January 1995 he was served with notice of intention to deport him under section 3(5)(b) of the Immigration Act 1971 on the grounds that his continued presence in this country was not conducive to the public good.

Mr. Sezek appealed to the Immigration Appeal Tribunal and, by a decision in December 1995, his appeal was rejected. He and his wife gave evidence at the tribunal, seeking to avoid his deportation on the grounds that it would break up his family. He said that his children did not speak Turkish (a fact which his wife contradicted) and said that they had no links with Turkey. The Immigration Appeal Tribunal considered the circumstances of his immediate and more extended family and his ties with the United Kingdom and with Turkey. Having heard from his wife, and believing that Turkish was spoken a great deal within his home, the tribunal took the view that the whole family regularly visited Turkey and, although the wife and elder child had been granted British nationality in 1991, both had also retained their Turkish passports and nationality, leading to the conclusion that they had somewhat stronger links with Turkey than the letter from Mr. Mehmet Sezek, which had been before the tribunal, had suggested. Indeed, as they pointed out, the younger child, who had British nationality by birth, also had a Turkish passport.

The Immigration Appeal Tribunal in its decision continued:

"The appellant has a sister in the United Kingdom: in Turkey he has four brothers and four sisters. His wife has, so far as we know, no relatives in the United Kingdom, but has her parents, two brothers and three sisters in Turkey: she also has two brothers in France. The appellant has a house on mortgage in the United Kingdom, the interest on which is presently being paid by the DSS: we were not told what equitable interest the appellant has in the house or what, on its sale, he would receive. He told us he had sold his house and land in Turkey. During the time he has been in England he has owned or part-owned three restaurants in succession. It seems that now all these businesses have closed, or at least he has no interest in any of them."

After commenting that they were prepared to proceed on the basis that he has usually supported his family, has usually been in work and only had the criminal conviction which led to the deportation notice (that is to say, for importing heroin), the tribunal continued:

"The appellant and his wife both stated that they would find it difficult to re-settle in Turkey. We do not agree. They both have extended families there: they are of an age when they could pick up the threads of their lives. Of course, it would be a matter of choice for the appellant's wife whether she went with him, but we had the impression that she would do so. The appellant has a great deal of catering experience and formerly worked as a waiter in Turkey, employment he should not find difficult to resume.

"The only compassionate circumstances prayed in aid before us were the alleged difficulty of the appellant re-settling in Turkey, and the possible break-up of the family, in particular the position of the children. In this case the circumstances of the children do not, in our view, amount to significant compassionate circumstances. The daughter is already an adult: she is now aged 20: she is not it seems employed, she speaks Turkish, and again, if she elected to do so, her position on return to Turkey would not be difficult. The son is still at school, but again, by the time the appellant is released on parole that second child, now aged 15, will also be an adult.

"The appellant was convicted of a very serious offence. When we weigh the compassionate circumstances of the case against the serious nature of that offence we conclude that his deportation is conducive to the public [good]: none of the circumstances outweighs that."

Leave to appeal to the Court of Appeal was refused and the Court of Appeal itself refused leave to appeal in February 1996.

A subsequent request by Mehmet Sezek to serve his prison sentence in Turkey was rejected for the very reason which inspired it, namely that there were more favourable early release provisions in Turkey than in the United Kingdom.

In April 1999 the deportation order was made and it was served in May 1999. Further representations were made on behalf of Mehmet Sezek seeking the revocation of the deportation order, principally on compassionate grounds but also referring to his good prison record and providing references as to his good character from friends and acquaintances. They also invoked the provisions of the European Convention on Human Rights, especially Article 8. On 27th October 1999 the request for revocation was rejected by letter.

Mr. Sezek, the claimant in these proceedings, seeks to challenge the refusal to revoke contained in that decision. In the letter from the Immigration and Nationality Directorate, it was said as follows: "In your representations you referred to the fact that your client has already been punished for his offence and therefore should not have deportation added onto the end of his sentence. However, you may wish to note that he was recommended for deportation as an integral part of his punishment meted out by the judge and not added at all. He will accordingly not have completed his punishment until he has been deported. The compassionate factors relating to his family being British citizens was taken into account by both the judge and the Secretary of State but it was considered that these were not sufficiently compelling or compassionate circumstances to outweigh the seriousness of his crime.

"It is also the position of the Secretary of State that the European Convention of Human Rights cannot overrule each member country's own laws but that its statutes should be taken into account. The Secretary of State is of the view that your client's family background is a compassionate factor worthy of consideration in that his deportation is likely to affect both the future welfare of himself and his family. It is noted that he has been separated from his family during his length of custody but they have been allowed limited access to visiting him. This treatment is clearly not in breach of any active or yet to be enacted human rights legislation any more than it is a breach of his human rights to carry out his punishment and deport him from this country. In fact, it will provide his family with the opportunity of either travelling with him or visiting him abroad for long periods, an option that was not open to him when he was in prison. It should also be noted that your client did not appeal against either his sentence or his deportation which indicated to the Secretary of State that he accepted the judgment as fair and proper. Furthermore, and more to the point, the human rights of your client and his family have been weighed against the human rights of all those countless people who would have had their lives ruined at best, and terminated altogether at worst, if they had come into contact with a substantial quantity of very dangerous drugs he was attempting to import into this country."

The reasoning in that decision has been elaborated in a letter date 20th June 2000. After an extensive recitation of the claimant's employment history (which is relevant because the claimant was claiming rights as a Turkish national under the EU/Turkish Association Agreement and decision 1/80 of the Association Council), and after concluding that the material before the Secretary of State did not show that the claimant had been in legal employment for the four years necessary to qualify for the rights relied on under Article 6 of decision 1/80, the Secretary of State continued as follows:

"Even if your client did produce the relevant documentation to show that he had been in legal employment...