HA (Turkey) v Secretary of State for the Home Department

This is a renewed application for permission to appeal from a decision of the Asylum and Immigration Tribunal (“the AIT”). That tribunal allowed an appeal by the Secretary of State from the decision of an adjudicator in July 2004. The latter had allowed the present applicants’ appeal on article 8 grounds alone because he found it to be, in his words, “a truly exceptional case” (see paragraph 26). He held that the removal of the applicants would not be within the range of reasonable assessments of proportionality, largely because the applicants had been in the United Kingdom for 14 years and 12 years respectively, and because of the strong ties between their children and this country and between the applicants and their children.

The AIT held the adjudicator to have erred in law, as they put it, by placing “unduly heavy reliance” on the factors to which I have just referred. The tribunal went on to say that the adjudicator had given:

“no consideration whatsoever to the basis on which the appellants had managed to facilitate their stay in the United Kingdom: he looked solely at the period for which they had been in the United Kingdom”.

Thirdly, the tribunal said that the children were adults, which would not normally give rise to a family life claim. The “very heavy reliance” on this factor was also a material error of law.

Taking those alleged errors in reverse order, if I may, it seems to me that it is properly arguable that the third was not a ground open to the tribunal: it formed no part of the Secretary of State’s grounds of appeal to the tribunal and would, arguably at least, be barred by this court’s decision in Miftari and by rule 62.7 of the 2005 Procedure Rules.

The second alleged error is challenged by the present applicants as being simply wrong factually. It is said that the adjudicator did take into account the way in which they had lost appeals because their accounts were not believed. In the light of what is said in paragraph 27 of the adjudicator’s determination, this seems to me to be a point with some merit.

The first of the alleged errors of law concerned placing, as I have indicated, unduly heavy reliance on the length of stay and their children’s ties with this country. It is now said that the weight to be attached to such factors is a matter for the decision maker, which is indeed a normal principle of administrative law, and that it cannot be said to have acted Wednesbury unreasonably. I see some force in that point too; there is certainly no express finding of perversity on the part of the AIT.

Putting all those matters together, I am persuaded that an appeal to this court does have a realistic prospect of success and for that reason I would grant permission to appeal.

I agree that permission should be granted.