Mutlu v Secretary of State for the Home Department

On a renewed application for permission to appeal, an arguable failure by an immigration tribunal to confront materially relevant authority on revocation of a deportation order may justify permission. This is particularly so where the authority addresses transitional provisions, an alternative removal route, and the exceptional nature of revocation. Non-service of a notice of intention to deport, loss of an appeal opportunity and substantial delay may also make the issue arguable. Complaints about the weight given to factors under a long-residence policy or to Article 8 circumstances ordinarily raise factual matters unless legal error is shown. Permission may be limited to the deportation issue and does not confer leave to remain.

The applicant, a Turkish national who had overstayed in the United Kingdom since 1990, sought indefinite leave to remain under the 14-year long-stay policy in the Immigration Rules. The Secretary of State refused the application and did not revoke an earlier deportation order. The Asylum and Immigration Tribunal dismissed the appeal on reconsideration, including challenges under the long-stay policy and Article 8, and declined to revoke the order. On a renewed application for permission to appeal, the central issue was whether the tribunal had failed to confront the reasoning in ES (Ukraine) concerning revocation.

1. Disposition. The renewed application was granted only on the issue of revocation of the deportation order. Permission was not granted on the long-stay policy or Article 8 challenges.
2. Long residence. The first-stage reconsideration had proceeded on the basis that the applicant had 14 years’ computable residence. A deportation order was not one of the notices listed in rule 276B(i)(b) as stopping the clock, and there was no clear evidence that the notice of intention to deport had been served. Under rule 276B(ii), unlawful residence was relevant to the public interest but did not itself bar a grant under the policy. The immigration judge had considered the relevant factors, including personal history and domestic circumstances. The complaint that he should have given greater weight to matters favouring the applicant disclosed no point of law.
3. Article 8. The immigration judge had directed himself correctly as to the law, referring to Huang v SSHD [2007] UKHL 11 and Mahmood v SSHD [2001] Imm AR 229. The alleged failure to assess more fully the effects of the wife’s disability and the depth of family and private-life interference concerned factual evaluation. No legal error was identified.
4. Revocation. Rules 390 and 391 concerned revocation following a change of circumstances. ES (Ukraine) [2006] UKAIT 00056 emphasised the exceptional nature of revocation and reasoned that transitional provisions did not permanently preserve the former deportation regime. It also concluded that, if the order were revoked, removal as an overstayer could remain available. The tribunal in the present case appeared to have distinguished ES only on its facts without confronting those final propositions. In the context of the unserved notice, the lost appeal opportunity and the passage of time after the order, that was an arguable error of law.
5. Scope. Permission on the revocation issue did not grant leave to remain or imply that the applicant was entitled to remain. The court made no determination that removal would be disproportionate.

1. Court of Appeal (Civil Division). On 17 December 2007, Laws LJ granted the renewed application for permission to appeal, limited to the issue of revocation of the deportation order.
2. Asylum and Immigration Tribunal. On reconsideration, promulgated on 23 May 2007 in AIT No IM/000783/2006, Immigration Judge Lewis dismissed the appeal against the Secretary of State’s refusal of indefinite leave to remain and refusal to revoke the deportation order.
3. Earlier proceedings. Immigration Judge Forster QC dismissed the original appeal in a determination promulgated on 24 February 2006. Reconsideration was ordered on 13 March 2006. Permission to appeal to the Court of Appeal was refused on the papers by Keene LJ on 8 October 2007 before the renewed application.