Boran v Secretary of State for the Home Department

In an immigration appeal involving removal, an adjudicator deciding an Article 8 claim under the European Convention on Human Rights must direct himself in accordance with the structured approach identified in Razgar v Secretary of State for the Home Department [2004] UKHL 27. Failure to do so is an error of law, even where the decision predates Razgar and the Secretary of State was not represented. The appellate tribunal may set aside the decision and conduct the proportionality assessment itself. A lawful immigration-control decision will be disproportionate only in a small minority of exceptional cases. If the tribunal applies the correct approach and its assessment discloses no legal error, the Court of Appeal will not interfere.

The appellant appealed to the Court of Appeal against an Immigration Appeal Tribunal decision dated 30 September 2004. The Tribunal had allowed the Secretary of State’s appeal against an adjudicator’s decision dated 16 July 2003, which had allowed the appellant’s human rights appeal under Article 8 but dismissed his Refugee Convention appeal.

The Tribunal concluded that the adjudicator had erred by failing to apply the structured approach in Razgar v Secretary of State for the Home Department. It then conducted its own proportionality assessment and allowed the Secretary of State’s appeal. The central issue was whether the adjudicator’s approach amounted to an error of law and whether the Tribunal was entitled to reassess proportionality.

1. Disposition. The appeal was dismissed unanimously. The Court of Appeal upheld the Tribunal’s decision allowing the Secretary of State’s appeal.
2. Error of law. The adjudicator had found that the appellant had established family life in the United Kingdom and that removal would be disproportionate. However, he had not directed himself in accordance with the structured decision-making approach set out by Lord Bingham in Razgar v Secretary of State for the Home Department [2004] UKHL 27, paragraphs 17 to 20. The Court held that this failure was an error of law, although the adjudicator had acted before Razgar, through no fault of his own, and without representation for the Secretary of State.
3. Tribunal’s reassessment. The Tribunal was entitled to set aside the adjudicator’s decision and undertake the Article 8 analysis itself. It considered the appellant’s extended family and community ties, his reliance on his brother’s family, his engagement, employment, capacity for independence, and family members remaining in Turkey. Even cumulatively, those matters did not make the case exceptional or place removal outside the range of reasonable responses in the lawful implementation of immigration control.
4. Administrative delay and final order. The appellant relied on Strbac v Secretary of State for the Home Department [2005] EWCA Civ 848 concerning the effect of administrative delay. The Court nevertheless concluded that the Tribunal’s approach disclosed no error of law. The appeal was dismissed.

• Court of Appeal (Civil Division) — On 29 July 2005, the court dismissed the appellant’s appeal: [2005] EWCA Civ 1141.
• Immigration Appeal Tribunal — On 30 September 2004, the Tribunal allowed the Secretary of State’s appeal against the adjudicator, held that the Article 8 proportionality approach contained an error of law, and conducted its own assessment.
• Adjudicator — On 16 July 2003, the adjudicator allowed the human rights appeal under Article 8 and dismissed the Refugee Convention appeal.