Secretary of State for the Home Department v Abbas

Permission to appeal to the Immigration Appeal Tribunal is the gateway to considering an error of law within the permitted scope. The grounds must clearly identify that error. A challenge to factual findings or the weight of evidence does not suffice. An allegation of perversity is serious and must be pleaded expressly. The Tribunal must distinguish perversity from the conclusion that it would have reached a different view on the facts. In an Article 8 removal case, requiring a person to leave the United Kingdom to seek entry clearance plainly interferes with family life. The issue is whether that interference is proportionate to immigration control. The appeal was allowed because the Tribunal lacked a sufficient jurisdictional ground and failed, in any event, to identify the alleged error of law.

Mrs Eman Abbas, an Iraqi national, arrived in the United Kingdom in June 1997 and claimed asylum. She married another Iraqi national in 2000. The Secretary of State refused asylum in February 2001. In October 2003, the adjudicator rejected the asylum claim because conditions in Iraq had materially changed, but allowed the Article 8 appeal. He held that removal to Iraq, or travel to another country to seek entry clearance, would be disproportionate in light of the couple's family life, her health, the prolonged delay and the absence of an effective response to the marriage application.

The Immigration Appeal Tribunal allowed the Secretary of State's appeal and held that return to Iraq for an entry-clearance application in Amman would not violate private or family life. The Court of Appeal considered the scope of permission to appeal, whether a sufficient error-of-law ground had been identified, and whether the Tribunal had distinguished legal error from disagreement with the adjudicator's factual assessment. The central issue was whether the Tribunal had jurisdiction to entertain the appeal.

Appeal allowed with costs. The Immigration Appeal Tribunal's decision was quashed. The adjudicator's determination remained in force and binding on the Secretary of State.

1. The Tribunal's jurisdiction required an issue of law. Permission to appeal could be limited to particular grounds or given generally, but it was only the gateway to deciding whether the adjudicator had made an error of law. It did not authorise a general merits rehearing. The passage quoted from [2004] EWCA Civ 1165 supported that limited function. Sir Peter Gibson added that good practice requires the order to state whether permission is limited or general.
2. The Secretary of State's grounds did not expressly allege perversity. Perversity is a serious allegation and must be pleaded in terms so that the Tribunal knows the jurisdictional issue it must decide. General criticisms of factual findings or the weight of evidence were insufficient. The guidance in B [2005] EWCA Civ 61 was applied. No sufficient jurisdictional ground had been laid, so the Tribunal should have rejected the appeal in limine.
3. Even assuming that permission covered all the complaints, the Tribunal failed to distinguish between legal perversity and the conclusion that it would have reached a different view of the facts. Its conclusion that return to Amman would not violate Article 8 addressed the wrong question. Return plainly interfered with family life; the issue was proportionality in relation to the legitimate aim of immigration control.
4. As an additional merits observation, Lord Justice Buxton held that the adjudicator had properly directed himself on Mahmood [2001] 1 WLR 840. In the unusual circumstances, including poor health, prolonged delay not caused by the claimant, limited consular facilities, established family life and the practical burden on her husband, the adjudicator was entitled to find removal disproportionate.
5. The effect of the jurisdictional failure accorded with Miftari v Secretary of State for the Home Department [2005] EWCA Civ 481: the adjudicator's determination remained binding. The court also requested that the Treasury Solicitor send the determinations and judgment to the Home Office Permanent Secretary for review of the administrative failings and non-attendance.

• Court of Appeal (Civil Division): [2005] EWCA Civ 992. Appeal allowed with costs; the Immigration Appeal Tribunal's decision was quashed and the adjudicator's determination remained binding.
• Immigration Appeal Tribunal: Allowed the Secretary of State's appeal from the adjudicator and held that return to Iraq to seek entry clearance in Amman would not violate private or family life.
• Adjudicator: Rejected the asylum appeal because conditions in Iraq had changed, but allowed the appeal under Article 8 on proportionality grounds.