DD (Turkey) v Secretary of State for the Home Department

On reconsideration under the AIT Procedure Rules 2005, the Tribunal must first decide whether the original decision contained a material error of law. It may receive fresh evidence, but alleged procedural surprise ordinarily requires a timely objection or adjournment request supported by relevant prejudice. A party cannot recast before the appellate tribunal a factual case not advanced in the reconsideration grounds. An omission to consider an EC–Turkey Association Agreement argument is immaterial where it could not affect the result. An Article 8 proportionality assessment may cover family and private life without separate labels where the tribunal has addressed relevant business interests and its findings apply to both.

The appellant, a Turkish national, entered the United Kingdom in 2002 and later sought leave to remain with her husband. Her applications were refused because she lacked a valid passport, did not satisfy the relevant immigration rules, and was not accepted as entitled to remain under the EC–Turkey Association Agreement. An Immigration Judge found that removal would interfere with Article 8 rights but was not disproportionate because she could return to Turkey, renew her passport and reapply.

The Asylum and Immigration Tribunal ordered reconsideration on specified grounds and dismissed the appeal on 30 August 2006. The appellant challenged the reconsideration procedure, the admission of evidence concerning her entry, and the treatment of her private and business interests under Article 8.

Lord Justice Gage gave the judgment, with Lord Justice Rix agreeing. Permission to appeal was granted, but the appeal was dismissed.

1. Reconsideration procedure. Rule 31 required the AIT first to decide whether the Immigration Judge had made a material error of law. The AIT correctly treated the failure to address the EC–Turkey Association Agreement issue as an error of law, then assessed whether it was material. It concluded that consideration of the issue would not have affected the outcome. The proposed further evidence from the appellant had not been sought in the reconsideration grounds, so the AIT was not required to adopt that course.
2. Fresh evidence and entry status. Rule 32 gave the AIT power to receive evidence not previously submitted. No objection or adjournment application was recorded, and the appellant showed neither relevant prejudice nor further evidence which should have been considered. The AIT could reach the same conclusion on the existing record. That record showed that the appellant’s case before the Immigration Judge had been that she entered illegally. The absence of that description from the Secretary of State’s refusal letters did not displace the basis on which her case had been presented.
3. Business claim. Independently, Rule 32 of the 1973 Immigration Rules required evidence of sufficient funds to establish a business capable of supporting the applicant and dependants. A reference to a partnership did not establish compliance. The EC–Turkey Association Agreement issue therefore could not have made a material difference.
4. Article 8. The Immigration Judge had the appellant’s business interests in mind when assessing proportionality, although the reasoning was expressed principally in terms of family life. The AIT’s finding that there were no exceptional circumstances, together with the ability to return, renew the passport and reapply, addressed both family and private life. Its reasoning was therefore sufficient.
5. The distinction between the free-standing EC–Turkey issue and the Article 8 issue explained the AIT’s apparently different statements about the Immigration Judge’s findings. The formal order was: application granted; appeal dismissed.

• Asylum and Immigration Tribunal: On 30 August 2006 dismissed the reconsidered appeal and refused permission to appeal.
• Court of Appeal (Civil Division): Granted permission to appeal after an oral hearing and dismissed the appeal: [2007] EWCA Civ 270.