ZY (Turkey) v Secretary of State for the Home Department [2011] EWCA Civ 65

Case No C5/2010/0108[2011] EWCA Civ 65IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Asylum and Immigration Tribunal (single judge)
The Asylum and Immigration Tribunal
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/02/2011
Before
LORD JUSTICE WARDLORD JUSTICE PATTENLADY JUSTICE BLACK
Between
ZY (Turkey)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Basharat Ali (instructed by Aman Solicitors Advocates) for AppellantRobert Palmer (instructed by Treasury Solicitors) for RespondentHearing Hearing dates : 7th December 2010
JudgmentLady Justice Black :
[1]ZY (“the appellant”), a Turkish national in his mid-thirties, appeals against the determination of Senior Immigration Judge McGeachy who conducted a second stage reconsideration hearing in November 2009 as a result of which the appellant was refused leave to remain in the United Kingdom.[2]The appellant originally applied for leave to enter the United Kingdom under the Turkey-European Community Association Agreement (also called the Ankara Agreement and the ECAA) in March 2005. The Secretary of State refused that in July 2005. The appellant sought to change the Secretary of State’s mind, submitting further information and adding a human rights application, but in January 2007 the Secretary of State finally refused both the ECAA application and the human rights application. The appellant appealed.[3]In June 2007, Immigration Judge Lingam (“the IJ”) permitted the appellant’s appeal to proceed in relation to the human rights decision only and allowed it. This would have entitled the appellant to stay in the United Kingdom. However, the Secretary of State applied for reconsideration which was ordered, on 11 July 2007, by Senior Immigration Judge Jarvis.[4]Senior Immigration Judge Freeman duly reconsidered Immigration Judge Lingam’s decision and found it to contain a material error of law for reasons which he set out in a document dated 12 January 2009. The second stage reconsideration hearing before Senior Immigration Judge McGeachy with which we are concerned resulted from that decision of Senior Immigration Judge Freeman.[5]The objective of the appellant now is, of course, to have the IJ’s decision restored so that he can remain in this country.

Background history

[6]Before I deal with the main issues that arise in the appeal, it is necessary to give a little background history.[7]ZY was, in fact, already in the United Kingdom when he applied to the Secretary of State for leave in March 2005. He had come in clandestinely as an illegal entrant in January 2000. He applied unsuccessfully for asylum. By August 2004, he had exhausted his rights of appeal in that regard. Since then he has been on temporary release and it has been assumed by both sides that he is subject to the standard condition that he should not engage in business whilst here. However, in July 2004, he invested money in a kebab house, upon the basis of which business he made his first Ankara Agreement application to the Secretary of State in 2005. Subsequently, he developed a new food retail business which he runs in partnership with his brother and it was upon this business that he relied in making the Ankara Agreement application that culminated in the Secretary of State’s refusal in January 2007.

The Ankara Agreement

[8]As the Ankara Agreement is a thread that runs through this appeal, it may be convenient to set out the law in relation to it immediately.[9]Non-EU nationals who wish to establish themselves in business here must apply for leave to enter or to remain. The general provisions applicable to such an application in the period with which this case is concerned are contained in the Immigration Rules (HC395). Under those rules, an applicant has to demonstrate that he has access to a specified (sizeable) amount of capital to invest here; the appellant has never been in a position to demonstrate this. However, Turkish nationals are normally in a special position by virtue of Article 41(1) of the Ankara Agreement. Article 41(1), sometimes called “the standstill clause”, prevents the UK from introducing “any new restrictions on the freedom of establishment and the freedom to provide services”. In practice, where this applies, it means that Turkish nationals cannot be subjected to any more restrictive provisions than were in force on 1 January 1973, the date of the UK’s adherence to the European Union. Accordingly, they need only satisfy the less onerous requirements of the Immigration Rules HC509 and HC510 which were then in force and which, for example, have no requirement as to a particular minimum capital sum.[10]Certain Turkish nationals do not have the benefit of Article 41(1). There is what was called “the fraud exception”. This originally focused on whether the applicant has tried to seek an immigration advantage by fraud.[11]The mere fact that someone has made a claim for asylum which has not succeeded does not necessarily exclude him from Article 41(1) as R (on the application of Tum) v SSHD; R (on the application of Dari) v SSHD [2004] EWCA Civ 788 shows. The Court of Appeal was there concerned with two Turkish claimants, both of whom unsuccessfully claimed asylum here then stayed on and applied for leave to enter to establish themselves in business, relying on the standstill provision in Article 41(1). The Secretary of State argued that Article 41(1) could only benefit a person who has lawfully entered the United Kingdom and, having done so, seeks to establish himself here and to operate a business. His case was that as Tum and Dari were treated for legal purposes as not having entered the country, their applications were to be determined according to the current domestic law. The Court of Appeal rejected that argument, holding that, with the exception only of “a person who achieves entry to this country by the use of fraud”, Article 41(1) applied whatever a person’s status with regard to his right to enter or remain in this country. Lord Woolf made it clear that there was no suggestion that either of these claimants had acted in any way fraudulently and pointed out that claims for asylum can be bona fide claims, albeit that they are unsuccessful.[12]The Secretary of State petitioned the House of Lords for leave to appeal and the House of Lords referred the matter to the European Court of Justice for a preliminary ruling. R (Tum) v Home Secretary (Case C-16/05) [2008] 1 WLR 94 is the decision, delivered in September 2007, of the European Court of Justice where the Secretary of State was no more successful than he had been in the Court of Appeal. The European Court of Justice agreed that Article 41(1) applied to first admission to a member state of Turkish nationals intending to establish themselves in business and that, in particular, failed asylum seekers were not deprived of the benefit of it merely by virtue of the fact that they had made unsuccessful asylum claims. The Court referred to the settled case law establishing that Community law cannot be relied on for abusive or fraudulent ends and that national courts can, in a particular case, deny a person the benefit of provisions of Community law on the basis of objective evidence of abuse or fraudulent conduct on his part, but said that the mere fact that someone has applied unsuccessfully for asylum cannot be regarded as constituting abuse or fraud and recorded that the claimants were not accused of any other fraudulent conduct.[13]R (LF) (Turkey) v SSHD [2007] EWCA Civ 1441 was determined the month after the decision of the European Court of Justice in the Tum case and in the light of it and illustrates that the exception is not confined simply to fraud but includes other forms of abuse of rights. The applicant was a Turkish national who was granted temporary admission to the United Kingdom whilst his asylum claim was being considered, subject to a requirement that he should not enter employment or engage in any business or profession. His asylum claim was refused and his appeal rights finally exhausted, at which point he should have made arrangements to return to Turkey. In fact, in breach of the terms of his temporary admission, he entered into business running a café-restaurant. He then applied for leave to enter the UK as a self-employed businessman, relying on Article 41(1). The Secretary of State refused to give him the benefit of the standstill provision because he had established his business by failing to depart from this country when required to do so and breaching the conditions of his temporary admission. The Court of Appeal endorsed that approach which it considered permissible because the application depended on the applicant’s “own wrongdoing” in establishing a business “in plain contravention of a then extant prohibition against his doing so”.[14]The precise extent of the application of the abuse of rights principle remains open; we are told that this court has made a reference to the Court of Justice of the EU in Oguz v SSHD [2010] EWCA Civ 311 concerning the position, vis-à-vis the Ankara Agreement, of a Turkish national with leave to remain here on condition that he does not engage in any business or profession who enters into self-employment in breach of the condition and then seeks leave to remain on the basis of the business he has established. However, the existence of the principle is not in doubt and the circumstances of the issue referred to Europe are not those of this case.

The focus of the appeal

[15]The appeal has not, in fact, been concerned with the substance of Senior Immigration Judge McGeachy’s decision, the appellant having failed to obtain permission to argue his proposed grounds of appeal in relation to that. The focus has been on whether Senior Immigration Judge McGeachy had jurisdiction to entertain a second stage reconsideration at all. If he did, then his decision stands. If he did not, the decision of the IJ is restored.[16]Senior Immigration Judge McGeachy was only entitled to look again at the appellant’s human rights claim if there was a material error of law in the IJ’s decision about that. Accordingly, the ultimate focus of the appeal before us has been her decision. Such are the contortions of this area of the law, however, that it is impossible to approach this question simply by examining the IJ’s Determination and Reasons. We have also had to have regard to what Senior Immigration Judge Jarvis and Senior Immigration Judge Freeman said and we have been taken particularly to the grounds set out in the Application Notice dated 26 June 2007 by which the respondent launched his application for reconsideration (“the Grounds”). This concentration on the Grounds arises because the appellant argues that the issue is not whether we consider the IJ made a material error of law, nor even whether Senior Immigration Judge Freeman validly identified a material error of law in the Immigration Judge’s determination, but whether Judge Freeman validly identified an error of law that was identified in the Grounds. Mr Ali, who represents the appellant, says that it is only by that route that Senior Immigration Judge McGeachy could have had jurisdiction to engage in the exercise that he did and to overturn the IJ’s decision.[17]Mr Ali relied particularly upon Miftari v SSHD [2005] EWCA Civ 481. There the adjudicator had, in fact, made an error of law in misconstruing the jurisprudence in relation to Article 3 and Article 8 ECHR but the grounds of appeal presented to the IAT did not allege that error of law. What the Tribunal purported to characterise as an error of law was not an error of law. Dealing with the source of the IAT’s jurisdiction, Buxton LJ said, in paragraphs 22 and 24 of his judgment, that not only was the identification of a point of law a necessary preliminary to the IAT having jurisdiction to entertain an appeal, “the IAT only had jurisdiction to consider the appeal if a point of law could be found within the formulated grounds”. At paragraph 23, he set out three points of principle as follows:
“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 [2005] 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.” “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”[18]Miftari concerned an appeal from the decision of an adjudicator to the IAT. Appeals from an adjudicator to the IAT were replaced in 2005, by a new section of the Nationality Immigration and Asylum Act 2002 (section 103A), with a process of reconsideration by the single tier Asylum and Immigration Tribunal. The s 103A regime was the regime that applied to the current case. It is by no means certain that the approach adopted under the former regime continued to apply to s 103A cases. The current edition of Macdonald’s Immigration Law and Practice says this of the situation under s 103A (now, of course, replaced in its turn with the advent of the Upper Tribunal) :
“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)[2006] UKAIT 00038; DK (Serbia) v Secretary of State for the Home Department[2006] EWCA Civ 1747; AA v Secretary of State for the Home Department[2006] EWCA Civ 401 and Hussain v Secretary of State for the Home Department[2006] 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'.”[19]We were not provided with copies of any of these authorities or addressed directly about them. Hussain, which might perhaps have beenthe most useful, is not readily available in the law reports or on the internet. Mr Palmer, counsel for the Secretary of State, submitted that the matter should be approached as in JN(Afghanistan) v SSHD [2010] EWCA Civ 723 and that it was important that the requirement for the error of law to be identified in the Grounds should be seen in context.[20]In JN, the immigration judge had found the applicant a credible witness who had a valid asylum claim. On the application of the Secretary of State, reconsideration was ordered. The senior immigration judge who held the first stage reconsideration hearing decided that there was a material error of law for a reason that had not been raised in either the Secretary of State’s application for reconsideration or the reasons of the senior immigration judge who ordered reconsideration, that is to say a failure by the immigration judge to give adequate reasons for rejecting the Secretary of State’s challenges to the applicant’s credibility. The effect of this was to put credibility again at large in relation to findings of fact that had already been made. The applicant argued that this should not have happened because it was the “normal rule” that save in exceptional circumstances any reconsideration would be confined to matters on which reconsideration had been ordered. The Court of Appeal agreed that credibility should not have been put in issue in the way that it was, there being no exceptional circumstances.[21]Sullivan LJ considered the “normal rule” to be a rule of practice and not of jurisdiction (in contrast, I note, to the approach of Buxton LJ in Miftari) but said that the practice is well established and quoted from Carnwath LJ in HS (Afghanistan) v SSHD [2009] EWCA Civ 771 applying the words of Latham LJ in DK (Serbia) v SSHD [2006] EWCA Civ 1787 (one of the authorities in the footnote in Macdonald). The passage quoted appears at paragraph 27 of Sullivan LJ’s judgment and is as follows:
“[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.”
[22]Sullivan LJ examined the rationale for the rule of practice in paragraph 28 of his judgment:
“In HF (Algeria) v Secretary of State for the Home Department[2007] 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.” “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.”[23]Mr Palmer submitted that the rationale for the practice can be seen to be to ensure proper prior notice of a particular challenge to an immigration judge’s decision and thereby to ensure a fair process. In JN it was unfair that the applicant’s credibility came under attack when no issue had been taken with the immigration judge’s decision on that basis in advance. He submits that this does not turn the Grounds into an exercise in technical drafting but simply requires that the material issues have been properly raised.[24]In my view, Mr Palmer is right and JN is a safer guide than Miftari to the role of the Grounds, the order requiring reconsideration and setting its parameters, and the decision at the first stage reconsideration hearing. A robust common sense approach must, in my judgment, be taken when considering the ambit of the Grounds, as well as the other documentation. Sullivan LJ comments in JN about the inappropriateness of a pedantic approach to the decision of the senior immigration judge who held the first reconsideration hearing and to the interpretation of the initial decision by the immigration judge saying, in paragraph 26, “[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.[25]The appellant would not accept, I think, that even a robust common sense construction of the Grounds (the Grounds being the critical document on his case) would have alerted him to the errors of law that would be identified by Senior Immigration Judge Freeman.[26]We will need to come to Judge Freeman’s Reasons shortly but it may be convenient, if perhaps naively simplistic, to commence with an examination of what the IJ decided and an objective consideration of whether she made any errors of law.

Immigration Judge Lingam’s Determination

[27]The IJ’s Determination commences with her reasons for her decision on a preliminary issue as to whether the appellant had a right to appeal at all with which she had dealt earlier, announcing her decision but reserving her reasons. She decided that the appellant’s appeal was restricted to his human rights argument and did not extend to his Ankara Agreement application. Paragraph 19 sets out her reasoning for this:
“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.”
[28]Mr Ali, who has represented the appellant before us, argues that the IJ’s finding that the appellant’s entry to the United Kingdom was clandestine and thus fraudulent is wrong and, in any event, is confined to her decision on the preliminary issue. It is apparent from the Determination that the appellant and his representative accepted before the IJ that there had been a clandestine entry. There was no formal cross-application at any stage thereafter in an attempt to overturn the IJ’s decision that the appellant had behaved fraudulently and could not therefore benefit from the standstill clause in the Ankara Agreement or appeal in relation to that aspect of his claim. An attempt by the appellant’s representative at the hearing before SIJ McGeachy to argue “that the appellant’s application should have succeeded on immigration grounds” before the IJ ended when SIJ McGeachy found that that was not a live issue before him (see paragraphs 8 and 9 of his decision) and the issue was not revived in the appellant’s documentation thereafter except in so far as it was argued in one of the proposed grounds of appeal to this court (a ground that was not permitted to proceed) that the hearing before SIJ McGeachy was flawed in its treatment of the Article 8 issue because it did not follow the “directions” given by SIJ Freeman to investigate the standstill clause. Furthermore, I cannot see any reason to treat the finding, made by the same IJ and set out in the same set of reasons as the substantive determination of the appellant’s extant appeal, as being of no significance except to the determination of the preliminary issue. The issue of clandestine entry is, in fact, referred to later in paragraph 37 when the IJ is dealing with the substance of the human rights appeal. Any consideration of this case must, therefore, be conditioned by the findings of the IJ in relation to this aspect of it.[29]The evidence before the IJ about the appellant’s personal circumstances was that he lived with his brother and had contact with his maternal aunt and cousins in the United Kingdom but “was not involved in any relationships”. His mother, sisters and paternal uncles continued to live in Turkey. He relied only on private life under Article 8 which he said would be infringed if he were to be removed from the country.[30]The Secretary of State accepted that the appellant had an established private life here but took the view that he had entered the country fraudulently and remained and entered into business without leave and that, when balanced against the wider rights of the public, removal was necessary and proportionate.[31]The IJ approached the issue by means of the questions set out in R v SSHD, ex parte Razgar [2004] UKHL 27.[32]She made various findings about the appellant’s business in which he had invested £20,000 of his own money. She found that he had a 50% ownership of the lease, had responsibility for the daily management of the business and played an active role at the shop. She was satisfied that the appellant’s removal would be an interference with his right to respect for his private life and, although in accordance with the law, would potentially engage Article 8.[33]Dealing with the question of whether removal was necessary and proportionate, she alluded (at paragraph 36) to the Secretary of State’s view that the appellant’s immigration history and his failure to comply with immigration law justified his removal in the interests of maintaining effective immigration control. The central passage of her Determination for the purposes of this appeal then continues at paragraph 37: “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][34]The IJ thereafter directed herself in accordance with Huang and Kashmiri v SSHD [2007] UKHL 11 and concluded: “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][35]The appellant argues that the IJ directed herself properly in law and in fact and determined the appeal in an entirely lawful manner. She took into account all that was relevant and nothing that was irrelevant and reached a conclusion that was open to her; the Secretary of State’s argument amounts to no more than a disagreement with her conclusions. Mr Ali points out that an immigration judge’s reasons need not be elaborate or totally comprehensive and will be sufficient if what he says shows the parties and, if need be, an appeal tribunal, why he reached his decision and that an appeal court should not be too ready to overturn an immigration judge’s decision.[36]The appellant’s submissions in relation to the IJ’s reliance on the Ankara Agreement appear to revolve around what Mr Ali says was the Secretary of State’s policy at the time of the IJ’s decision of refusing to accept Ankara Agreement applications from applicants in Turkey which would have meant that there would have been no question of the applicant making an Ankara Agreement application at all if he was removed from this country. The appellant’s case was that this made removal disproportionate or contributed to its being disproportionate. Mr Ali’s skeleton argument says that a system for accepting such applications from Turkey was not set up until September 2009. Whether the implication that no applications from Turkey were being processed before then is strictly accurate in the light of the case of IY (Ankara Agreement – fraud and abuse)Turkey [2008] UKAIT 00081 I do not know, but there was no argument about this before us and I will assume the point in the appellant’s favour.[37]Mr Palmer’s written submissions for the Secretary of State suggested that he was disposed to argue that the IJ erred in finding that the appellant had established private life in the United Kingdom. However that argument was not open to him, given that the Secretary of State himself had accepted in front of the IJ that the appellant has an established private life here. Mr Palmer’s submission (amended accordingly) is therefore that IJ erred in law in that: “(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; and (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.”

and

[38]Mr Palmer submits that it is well established that Article 8 does not confer any right to enjoy family life or private life in a particular country. He also notes that the IJ found that the appellant could set up a business in Turkey and submits that the relative advantages of conducting business here as opposed to in Turkey were irrelevant to whether removing the appellant from this country was a disproportionate interference with his private life. He also points out that the IJ failed, when considering proportionality, to consider the impact of the facts that the appellant’s presence here was illegal and that he had established his business in breach of a condition prohibiting that sort of activity.[39]Mr Palmer also criticises the IJ’s approach to the Ankara Treaty. She referred to the appellant being entitled to enjoy the benefits of that and yet she had already concluded that the appellant was not entitled to rely on the only part of it that might have benefited him, the standstill clause in Article 41(1). In so far as the appellant’s complaint relates to an inability to apply under the Ankara Agreement from Turkey as opposed to from within the United Kingdom, he says firstly that it disregards the IJ’s finding that it was not open to the appellant to rely on Ankara Agreement from within the United Kingdom either and secondly that it wrongly assumes that the appellant would have been entitled to rely upon the business that he had established here unlawfully in making an Ankara Agreement application. In any event, Mr Palmer says, even if the IJ was right to have regard to this factor, it was insufficient to cure her decision which would still be fundamentally flawed by a material error of law.[40]In support of his argument that the IJ’s conclusion was perverse/inadequately reasoned, Mr Palmer invites attention to the jurisprudence subsequent to Huang which identifies that it will be rare, in practice, that an otherwise lawful removal which disrupts family or private life cannot be shown to be compliant with Article 8 (KR (Iraq) v SSHD [2007] EWCA Civ 514) and recognises that there will be cases in which it can properly be said by an appellate tribunal that on no view of the facts could removal be disproportionate (AG (Eritrea) v SSHD [2007] EWCA Civ 801). This case, he argues, is one of those cases in which it can properly be said that on no rational view of the facts could removal be disproportionate or, if there is some material aspect of the facts that might permissibly lead to that conclusion, then the IJ failed to identify it and her lack of reasoning amounted to an error of law.[41]Even when read as a whole and with the appropriate measure of robust common sense, the IJ’s Determination does, in my judgment, contain a material error of law. Mr Palmer is right, in my view, to say that on no rational view of the facts could the removal of the appellant be regarded as disproportionate. It may be going too far to say that IJ should have had no regard at all to the advantages to the appellant of continuing to run his business here but the business advantages identified in this case were not capable, on any proper view of the totality of the facts, of rendering the removal of the appellant disproportionate and there was nothing else of any weight to put into the scales against removal whereas there were the very powerful factors related to the appellant’s own immigration status and the general need to maintain effective immigration control which supported removal. The fact that the appellant was not a burden on the state is not capable of carrying any weight in the equation; not needing to have recourse to public funds is a pre-condition routinely imposed by the Immigration Rules on those who wish to enter the country but, as Mr Palmer submits, it is not a sufficient condition for entry in the ordinary course and it is impossible to understand how, alone or together with other matters, it could outweigh the need for effective immigration control. The contribution that the IJ perceived the appellant to be making to the community is not particularised. It is difficult to understand how, in the circumstances of this case, it could ever add significant weight to the appellant’s case and it is certainly impossible to understand the IJ’s approach in the absence of any detail at all about either the contribution or her view of it.[42]I accept Mr Palmer’s submission that there was nothing arising from the Ankara Agreement that could carry any weight in the appellant’s side of the scales. I find it impossible to see what the IJ was thinking of in relation to the Agreement in her substantive determination. The fact was that the appellant had actually made an application under the Agreement from within this country and she had refused to allow him to appeal from the Secretary of State’s refusal of it, expressly finding that he was not entitled to benefit from the standstill clause because of fraud. His future position would therefore be no better in this regard if he stayed here than if he were to be returned to Turkey, whether or not the Secretary of State was prepared to process applications from outside this country. In so far as the IJ appears to have thought that the new rules would have applied if he returned to Turkey and the old rules if he remained here, that was simply contrary to what she herself had already decided. This mistaken approach to the Ankara Agreement led to the inclusion as a factor in the Determination of a matter that should not have entered the IJ’s consideration and her decision is further flawed in this respect.

Senior Immigration Judge Jarvis’ order for reconsideration

[43]For the moment I will skip the Grounds and come to the order for reconsideration made by SIJ Jarvis on 11 July 2007. This identified the following arguable material errors of law, derived by SIJ Jarvis from the Grounds: 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

[44]The parties attending the hearing in front of SIJ Freeman who heard argument and later gave written reasons setting out his decision.[45]At paragraph c) of his Reasons, SIJ Freeman says:
“[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 [2007] UKHL 11 to make removal disproportionate to the legitimate purpose of immigration control.”
[46]He distils the Secretary of State’s case as being “essentially that no reasonable immigration judge could in those circumstances have regarded the appellant’s removal as other than proportionate to the legitimate purpose of immigration control”.[47]He went on to find, in paragraph j), that the IJ’s decision could not “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.[48]I have to say that I have not found it entirely easy to understand from SIJ Freeman’s reasons what his precise route to this conclusion was. SIJ McGeachy understood the central conclusion to have been that the IJ “erred in placing the economic benefit to the appellant in a central position in concluding that the appellant’s rights under Article 8 would be infringed by his removal and further finding that it would not be appropriate for him to be expected to make an application abroad having first considered that it would be unlikely that such an application would succeed”. I would add that he was also influenced by the fact that the appellant had arrived here by clandestine means, remained without authority after his asylum claim was finally decided against him, and established his business without entry clearance or other form of permission. He took into account that in IY (supra), where the applicant had made an Ankara application from Turkey, the AIT had made clear that clandestine entry, coupled with setting up a business here as an unsuccessful asylum-seeker, whether fraudulent or not, might amount to an abuse of EEA law which might not be cured even by leaving the country to apply for entry clearance.

Senior Immigration Judge McGeachy

[49]Paradoxically, for the reasons I have already set out, the detail of SIJ McGeachy’s decision is of very little moment in this appeal, even though it is his decision against which the appellant appeals. He determined that the appellant’s Article 8 rights were not, in fact, engaged. As Sedley LJ said when he gave permission for this appeal, that finding was undoubtedly appealable. However SIJ McGeachy went on to reach what Sedley LJ described as “a perfectly respectable alternative finding” that even if Article 8 was engaged, removing the appellant would not be disproportionate.

The Grounds

[50]At last, I return to the Grounds. They are set out in two paragraphs under a heading that reads “1. The Immigration Judge failed to give adequate reasons for findings on a material matter/made a material misdirection in law”.[51]The passage that follows includes the following assertions: 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 [2007] EWCA Civ 28 is relied upon.”[52]The appellant argues that it is not clear from the Grounds what error of law was being alleged but that what is clearly not being alleged is that the IJ’s decision was perverse which, it is submitted, is what would have had to be shown to justify reconsideration here. The Grounds, he says, reveal nothing more than a disagreement with the IJ’s conclusions or, in relation to SB, a misconception.[53]Mr Ali reminds us of what was said in R (Iran) & Ors v SSHD [2005] EWCA Civ 982 about perversity. It is “a very high hurdle”, albeit not requiring a wilful or conscious departure from the rational and embracing decisions which are unreasonable in the Wednesbury sense and also a finding of fact on a material matter that is wholly unsupported by the evidence.[54]Mr Palmer accepts that a failure to attach sufficient weight to certain factors does not amount to an error of law unless it is perverse. He says that that was what the Grounds complained of, even though the word was not used expressly, and SIJ Freeman properly interpreted them that way.[55]It is no surprise to me that the Grounds were interpreted as a challenge on the basis that the IJ’s decision was perverse. They have to be approached as a whole, on a common sense basis, and in the context of the reconsideration process where what is required to establish a material error of law is well known. The factors to which the IJ attributed sufficient weight to outweigh the countervailing requirements such as effective immigration control were all related to the appellant’s business interests to which reference is expressly made in the Grounds. If she “erred in 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”, her determination was necessarily perverse because there was nothing else to go into the balance, the Ankara point being specious. Accordingly, I am satisfied that there was sufficient in the Grounds to indicate the nature of the challenge to the IJ’s decision and to identify the material error of law upon the basis of which the case properly proceeded, ultimately, to a hearing in front of SIJ McGeachy.

Outcome

[56]It follows that I would dismiss the appeal, with the result that SIJ McGeachy’s determination stands. Lord Justice Patten[57]I agree. Lord Justice Ward[58]I also agree.

Cited in 2 later judgments