Ali Mert v Secretary of State for the Home Department

In an Article 8 appeal concerning deportation for serious crime, an adjudicator must give proper weight to the Secretary of State’s legitimate policy on crime prevention, immigration control and deterrence. The adjudicator must not decide whether that policy is correct, but must treat it as a material factor in the proportionality assessment. The approach in Huang v Secretary of State for the Home Department [2005] EWCA Civ 105 cannot be applied without modification in this context. A carefully evidenced family life may outweigh the policy in an exceptional case. Appellate bodies must confine appeals to clearly identified errors of law.

The appellant, a Turkish citizen resident in the United Kingdom for about 14 years, had a wife, four children and an extended family here. He had been convicted of supplying controlled drugs, sentenced to nine years’ imprisonment and recommended for deportation.

An immigration adjudicator allowed his appeal against the decision to deport and under the human-rights provisions, finding removal disproportionate. The Immigration Appeal Tribunal reversed that decision, holding that the adjudicator had exceeded his jurisdiction and had failed properly to balance family life against immigration policy. The appeal concerned the scope of the adjudicator’s jurisdiction, the proper Article 8 approach to serious-crime deportation, and whether the grounds of appeal disclosed a proper error of law.

Lord Justice Buxton gave the leading judgment. Lord Justice Sedley and Mr Justice Rimer agreed.

1. Jurisdiction. The adjudicator had apparently treated the matter as involving both section 65 and section 63 appeals under the Immigration and Asylum Act 1999. If he purported to quash the deportation order itself, rather than allow an appeal against the Secretary of State’s decision to deport, the Immigration Appeal Tribunal was correct to identify that jurisdictional error. The misapprehension did not materially distort the Article 8 assessment.
2. Article 8 and serious-crime deportation. The approach in Huang v Secretary of State for the Home Department [2005] EWCA Civ 105 could not be directly imposed on serious-crime deportation cases. As explained in Samaroo v Secretary of State for the Home Department [2001] EWCA Civ 1139, the adjudicator had to give weight to legitimate Secretary of State policy concerning law and order, immigration control, crime prevention and general deterrence. The adjudicator was not entitled to decide for himself whether that policy was correct.
3. The adjudicator nevertheless had to conduct the Article 8 proportionality assessment. He treated the Secretary of State’s policy as a material factor and balanced it against the established family circumstances. He recognised the seriousness of the offence, the duty to maintain law and order and effective immigration control, and the unusual nature of allowing a serious-crime deportation appeal. The criticism that he had ignored general deterrence was rejected.
4. The analysis of family life, based on the judgment in Secretary of State for the Home Department v Mahmood, was understandable. In an unusual case of this kind, it was particularly important that the adjudicator be well assured that the claimed family connections were genuine and cogent. The determination disclosed no material error of law.
5. Grounds of appeal. Grounds of appeal form the agenda for permission and the appeal. They must clearly identify a point within the appellate jurisdiction. This requirement is especially important where the Secretary of State appeals. The grounds did not clearly raise the substantive criticism argued before the Court of Appeal.

The appeal was allowed with costs.

• Court of Appeal (Civil Division) — allowed the appeal from the Immigration Appeal Tribunal and awarded costs: [2005] EWCA Civ 832.
• Immigration Appeal Tribunal — reversed the adjudicator’s decision, holding that the adjudicator had no power to allow an appeal against the deportation order itself and that the Secretary of State’s decision was within the permissible range.
• Immigration adjudicator — allowed the appellant’s appeal against the decision to deport and under the human-rights provisions, finding removal disproportionate.