COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Asylum and Immigration Tribunal (single judge)
The Asylum and Immigration Tribunal
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
LADY JUSTICE BLACK
| ZY (Turkey)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Robert Palmer (instructed by Treasury Solicitors) for the Respondent
Hearing dates : 7th December 2010
Crown Copyright ©
Lady Justice Black :
The Ankara Agreement
The focus of the appeal
"First, the grounds are the basis, and the only basis, on which permission to appeal is granted or refused. The Vice-President who considers that application must determine jurisdiction on the basis of the grounds; subject, if he does discern a point that the parties have not taken, to his being able to invite an amendment of the grounds. But all that must take place within the boundary of the grounds as finally formulated. Second, as the Master of the Rolls said in paragraph 18 of the judgment of the court in B [v Secretary of State  EWCA Civ 61]:
"the grounds form the agenda on which the IAT considers the grant of permission and, if granted, conducts the appeal...with the recent limitation of the IAT it is particularly important that the grounds should clearly establish that the appeal does at least in form fall within that jurisdiction"
That means that the IAT can only consider what is legitimately found in the actual or amended grounds. It does not have jurisdiction to consider anything that is not there found. Third, whilst a court will not ordinarily be required, in the absence of the point being raised, to consider whether it has jurisdiction to take a particular case, that is not so of the IAT. It has to consider jurisdiction expressly because it has to pass on the grounds of appeal. It is very difficult to see how a decision as to jurisdiction can be saved by demonstrating that although the basis on which it was taken was unjustified, the Vice-President could have granted permission on a different basis that was not before the court."
"20.40 By contrast to an appeal under s 101, the Tribunal's jurisdiction was said not to be limited by what could be found in the grounds on which reconsideration was sought or granted.1"
The footnote to which the reader is there referred reads
"See for example AH (Sudan)  UKAIT 00038; DK (Serbia) v Secretary of State for the Home Department  EWCA Civ 1747; AA v Secretary of State for the Home Department  EWCA Civ 401 and Hussain v Secretary of State for the Home Department  EWCA Civ 382 where the Court said that 'by virtue of section 103A, the AIT has jurisdiction if there is an error of law. The section does not require the error to be pleaded in the grounds'."
"[T]he whole process [of reconsideration] is going to be limited in the normal case to the grounds on which the first judge has ordered reconsideration, which in themselves, in the normal case, will be limited to those on which reconsideration has been sought. I accept as Latham LJ makes clear that is not mandatory in the sense that no departure is possible. But, as he says, that should be very much the exception."
"In HF (Algeria) v Secretary of State for the Home Department  EWCA Civ 445 Carnwath LJ pointed out the two factors which underlie this new approach:
"One is efficiency, the other fairness. On the one hand, the approach gives effect to the policy objective 'to streamline the overall appellate process' . . . . On the other, the Appellant should not be subjected without good reason to the stress and uncertainty of a new hearing on an issue on which he has succeeded."
It is important that the practice is followed in a consistent manner by the tribunal. The parties preparing for a first stage reconsideration are entitled, at least in the absence of any prior indication to the contrary from the Appellant, to prepare their submissions on the basis that the subject matter of the reconsideration will be limited to the ground or grounds on which reconsideration has been ordered. Any other approach, allowing an Appellant to raise, without any prior notice to the Respondent or the tribunal, further alleged errors of law, even including matters which had not been raised in the grounds for reconsideration, would be most prejudicial to the Respondent (more often than not the Secretary of State), who would either have to prepare submissions for the first reconsideration stage on a "defensive" basis, covering all possible criticisms of the Determination including matters not previously raised in the application or the order for reconsideration, an inefficient and wasteful process; or face the risk of being "ambushed" by a new point which might result in the Determination being unfairly set aside."
"[d]eterminations should be read as a whole, and in a common sense manner, always bearing in mind the fact that….they are addressed not to the world in general, but to the parties who will be familiar with the factual context in which the appeal has been heard".
Similar comments could be made in relation to the Grounds and the initial order for reconsideration. Furthermore, I can see no justification for looking at the Grounds in a complete vacuum. The complaint in JN was not confined to the Grounds but was that the error of law was neither identified there nor in the reasons given by the senior immigration judge for ordering reconsideration. The applicant therefore arrived at the first stage of the reconsideration without notice of the challenge to the immigration judge's credibility findings. That cannot be said of the appellant in the present case as we shall see when we come to the detail of the Grounds and of the decisions made by the various immigration judges at the various stages of the reconsideration process.
Immigration Judge Lingam's Determination
"19. I had indicated to Mr Saeed [for the appellant] that the relevant provision applicable in this appeal was Immigration Rules HC 509 rather than HC 510. However, on reading all the papers carefully, I am satisfied that since the appellant's method of entry to the United Kingdom was clandestine i.e. fraudulent; according to the decision in Dari and Tum the appellant cannot benefit from the standstill clause under HC 509 or HC 510. Thus the appellant cannot bring an in country appeal under HC 509 and HC 510."
"37. The appellant accepts that he entered the UK clandestinely to seek asylum in the UK. There is no evidence before me that the appellant was advised to leave the UK but in any event, during 2004, the appellant became involved in private business. I am satisfied that the appellant did not at any point enter the mainstream employment market but instead invested £20,000 of his own money to open a food retail shop. It is reasonable to accept that the appellant through his business provides a service, which according to the evidence before me shows that he can make a good living. There is evidence that the appellant lives with his brother and the evidence this far is that the appellant had no recourse to public funds throughout his stay in the UK for his maintenance and accommodation. The evidence also shows that the appellant pays his dues and has never been a burden on the taxpayer.
38. I had borne in mind that the appellant has a mother, sisters and other relatives in Turkey and while it cannot be denied that the appellant can, if forced to return to Turkey, use his business skills to open up another food retail shop in Turkey, the advantages of running a private business in the UK are many and obvious. To list but a few – the appellant is likely to enjoy higher profits; to have access to better trade opportunities and most of all the appellant is entitled to enjoy the benefits of the Ankara Treaty. I had given thought to the appellant returning to Turkey to secure an entry clearance visa to return as a businessperson. However, the documentary evidence….shows that the appellant if he were to submit a fresh application for entry clearance, would be required to meet the new requirements under HC 395 (as amended) rather than HC 510; although there has been some expression of disapproval by Collins LJ. It would seem that the single most disadvantage for the appellant would be financial and thus the appellant would clearly be disadvantaged if he were to return to Turkey to process an entry clearance visa to the UK.
39. On the other hand, the appellant has demonstrated that he has worked hard to build his retail business with his partner and any interference caused by his proposed return would have an impact on business profits as well as personal profits to the appellant." [very minor matters corrected by me, otherwise sic]
"42. I have carried out the balancing exercise (at paragraph 36 – 38 of this determination) as suggested at paragraph 18 of Huang and based on that, I am satisfied that the appellant's is not a burden on the state and his contribution to the community is greater than the need to remove him in order to maintain effective immigration control in the interest of the public. I am satisfied on the facts applicable to the appellant that his proposed removal would be unjustified and disproportionate because it is not likely to serve the wider interest of the public." [sic]
"(1) She misdirected herself in having regard to the financial and other advantages that would accrue to the Appellant if he were permitted to continue to run his business in the United Kingdom rather than in Turkey ….in considering the proportionality of the decision to remove him;
(2) Her conclusion that the Appellant's removal from the United Kingdom would be a disproportionate interference with his Article 8 rights was perverse and/or inadequately reasoned."
Senior Immigration Judge Jarvis' order for reconsideration
i) That the IJ applied the wrong test in relation to the Razgar assessment, in particular failing to assess whether the removal of the appellant would constitute an interference with private life of sufficient gravity to bring Article 8 into play;
ii) That the IJ took into account irrelevant considerations and failed to take account of relevant matters;
iii) That the IJ failed to give evidence based reasons or adequate reasons to support the findings she made.
iv) That the IJ was wrong to find that the circumstances of the case outweighed the public interest and that removal would not be a disproportionate breach;
v) That the IJ was wrong in taking into account, contrary to the guidance in SB (Bangladesh) v SSHD, the consideration that the appellant may have difficulty meeting the requirements for entry clearance.
First stage reconsideration: Senior Immigration Judge Freeman
"[The IJ] found as a fact that the appellant's real (and it would seem only serious) loss by having to return to Turkey would be financial. The Home Office challenged her decision to allow the appeal on that basis as perverse, given the degree of interference still required under Huang  UKHL 11 to make removal disproportionate to the legitimate purpose of immigration control."
"be regarded as reasonable on the basis she gave for it, without further investigation of the appellant's position under the relevant domestic and EEA law, which may include how far he could benefit from consideration (wherever that took place) under the old rules applied by the 'standstill clause' (HC509/510), as well as the new ones (HC 395)".
Although puzzling in some respects (in so far as it appears to allow for there being more life in the appellant's Ankara application than the authorities would suggest there was), when one reads the totality of SIJ Freeman's reasons, this amounts, in my judgment, to an acceptance of the case that the Secretary of State had put to him and accords with my own view, set out above, that the IJ's conclusion that the removal of the appellant to Turkey was disproportionate was one that was simply not open to her.
Senior Immigration Judge McGeachy
i) "[the IJ] did not properly consider whether the removal of the appellant will constitute such an interference of sufficient gravity as to bring Article 8 into play. If the Immigration Judge had approached the case on the correct basis she would have failed to disclose why legitimate immigration control is itself not to be accorded its customary weight."
ii) "[t]he Immigration Judge erred by relying on the advantages the appellant has in running his business here as opposed to Turkey to justify finding that his return would bring about a breach of Article 8. It is submitted that the appellant set up his business in the full knowledge that his immigration status was not settled and the Immigration Judge has failed to attach sufficient weight to the Secretary of State's public interest view at paragraph 37 of the determination."
iii) "the Immigration Judge has erred in law by assessing the appellant's prospects of return in an entry clearance exercise when carrying out the balancing exercise. SB (Bangladesh) v SSHD  EWCA Civ 28 is relied upon."
Lord Justice Patten
Lord Justice Ward