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

Permission to appeal may be granted where the proposed appeal has a realistic prospect of success. That threshold may be met where an immigration tribunal arguably relied too heavily on length of residence and family ties, failed to consider the circumstances in which the stay was secured, or relied on a point absent from the respondent’s grounds of appeal. The weight given to relevant factors is ordinarily for the decision-maker, and the absence of an express finding of Wednesbury unreasonableness may be significant. The Court did not finally determine the Article 8 issues, including the significance of adult children in a family-life claim.

The applicants sought permission to appeal from an Asylum and Immigration Tribunal decision which had allowed the Secretary of State’s appeal against an adjudicator’s decision in July 2004. The adjudicator had allowed the applicants’ appeal solely on Article 8 grounds, finding removal disproportionate in view of their length of residence and family ties in the United Kingdom.

The AIT held that the adjudicator had placed undue weight on those matters, had failed to consider how the applicants had secured their stay, and had relied excessively on the children’s adult status. The central question was whether those alleged errors gave the proposed appeal a realistic prospect of success.

Permission granted. Lord Justice Keene granted the renewed application for permission to appeal. Lord Justice Pill agreed. The Court determined only whether the proposed appeal had a realistic prospect of success; it did not decide the merits of the Article 8 appeal.

1. Ground not raised below. The AIT had treated the fact that the children were adults as a reason why family life would not normally arise. It was properly arguable that this ground was not open to the AIT because it had not formed part of the Secretary of State’s grounds of appeal. The point might also be barred by the decision in Miftari and rule 62.7 of the 2005 Procedure Rules.
2. Consideration of the basis of the stay. The AIT said that the adjudicator had considered only the period for which the applicants had remained in the United Kingdom. The applicants relied on paragraph 27 of the adjudicator’s determination as showing that the circumstances in which their earlier appeals had failed had been considered. Lord Justice Keene regarded that challenge as having some merit.
3. Weight given to proportionality factors. The applicants argued that the weight attached to length of residence and the children’s ties was for the decision-maker, consistent with a normal administrative-law principle, and that the adjudicator’s assessment could not be characterised as Wednesbury unreasonable. The Court saw force in that argument and noted that the AIT had made no express finding of perversity.
4. Overall assessment. Taken together, the three points gave the proposed appeal a realistic prospect of success. The formal order was that the application was granted.

1. Court of Appeal (Civil Division): On a renewed application for permission to appeal, permission was granted: [2007] EWCA Civ 337.
2. Asylum and Immigration Tribunal: Allowed the Secretary of State’s appeal against the adjudicator’s decision.
3. Adjudicator: In July 2004, allowed the applicants’ appeal solely on Article 8 grounds.