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

When a person who has no right, or no settled right, to remain in the United Kingdom has committed rape, the public interest will very likely require removal or deportation. Only the most pressing compassionate factors will ordinarily outweigh that interest. A decision-maker must give the gravity of the offending proper weight, rather than merely acknowledge the convictions and list factors favouring the individual. The risk of reoffending, family circumstances, immigration status, children’s circumstances and a sentencing recommendation may all be relevant to the balance under paragraph 364 of the Immigration Rules and Article 8 of the European Convention on Human Rights.

The appellant, a Turkish national, appealed against an Asylum and Immigration Tribunal determination dismissing his challenge to a deportation decision. The Secretary of State made the deportation order after the appellant was convicted of rape, two batteries and attempting to intimidate a witness, and after he had served a sentence of five years and seven months.

An immigration judge had allowed the appeal under paragraph 364 of the Immigration Rules and Article 8 of the European Convention on Human Rights. On reconsideration, the AIT found an error of law, substituted its own decision and dismissed the appeal. The central issues were whether the immigration judge had given insufficient weight to the public interest in deportation and whether the AIT’s substituted decision was legally sustainable.

1. Appeal dismissed. The AIT was entitled to find a material error of law in the immigration judge’s decision. The issue was not whether she had forgotten the convictions, but whether she had given their gravity anything like due weight.
2. Rape causes profound public revulsion. Where it is committed by an alien with no right or settled right to remain in the United Kingdom, public policy will very likely call for removal or deportation. Only the most pressing compassionate factors are capable of tilting the balance in favour of remaining. The immigration judge’s perfunctory acknowledgement of the crime, followed by a list of favourable factors, failed to recognise this critical aspect of the balance.
3. The AIT’s substituted merits decision was legally sustainable. It was entitled to rely on the nature and combination of the offences; the appellant’s absence of any legal entitlement to remain apart from initial visitor’s leave; the precarious immigration status when the second marriage was contracted; the older children’s ability to choose where to live; the younger children’s capacity to adapt to life in Turkey; the stepdaughter’s age and expressed choice to remain with her mother; and the sentencing judge’s recommendation for deportation.
4. The AIT was not required expressly to refer to the section 37 report or the Social Services material. The appellant’s fitness as a parent was treated as a given in its reasoning. Reliance on the sentencing recommendation was permissible, and the submission that overstaying was irrelevant was misconceived. Arden LJ and Moore-Bick LJ agreed with Laws LJ.

• Court of Appeal (Civil Division): [2008] EWCA Civ 249. The appeal against the AIT’s determination was dismissed. The court upheld the AIT’s finding of an error of law in the immigration judge’s determination and its substituted dismissal of the appeal.
• Asylum and Immigration Tribunal: On reconsideration, the AIT found an error of law in the immigration judge’s decision and dismissed the appeal against the Secretary of State’s deportation decision.
• Immigration judge: The appeal had originally been allowed under paragraph 364 of the Immigration Rules and Article 8 of the European Convention on Human Rights.