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

An immigration tribunal deciding whether the Secretary of State’s deportation discretion should have been exercised differently must make its own judgment. It must nevertheless address and give proper weight to the public-good and public-interest considerations for which the Secretary of State has primary responsibility.

Where deportation follows a sentencing court’s recommendation, a tribunal should not negate that assessment without a clearly explained reason. A conditional discharge does not create a rule that deportation requires exceptional circumstances. The criminal sentence and the recommendation address distinct matters. Nor can lack of lawful immigration status rationally count against deportation.

The appellant, a Turkish national, had entered the United Kingdom clandestinely and had no lawful immigration status. After pleading guilty to two sexual assaults, he received conditional discharges and the Crown Court recommended deportation.

The Secretary of State decided to make a deportation order under the Immigration Act 1971. The first Asylum and Immigration Tribunal allowed the appellant’s appeal. Following reconsideration, a differently constituted tribunal found material errors of law in that decision and substituted a determination dismissing the appeal.

The appellant appealed to the Court of Appeal. The central questions were whether the first tribunal had materially erred in law and whether the reconsideration tribunal’s dismissal of the deportation appeal was lawful.

1. Appeal dismissed. Toulson LJ, with whom Tuckey LJ agreed, held that the reconsideration tribunal had correctly concluded that the first tribunal’s determination contained material errors of law. Its substituted decision dismissing the deportation appeal disclosed no error of law.

2. Section 84(1)(f) of the Nationality Immigration and Asylum Act 2002 had to be construed as extending to the Secretary of State’s statutory discretion to make a deportation order. A narrower construction would substantially deprive the statutory right of appeal of effect. Under section 86, the tribunal makes an independent judgment, but must understand and give due weight to the public-good and public-interest considerations identified in N (Kenya) v SSHD [2004] EWCA Civ 1094.

3. Those considerations carried additional force where the Secretary of State had acted upon a sentencing court’s recommendation for deportation. A tribunal could take a different view where, for example, circumstances had materially changed or removal would be unduly harsh because of conditions in the country of origin. It had to explain clearly why departure from the sentencing court’s assessment was justified, since coherence in the administration of justice was itself a public-interest consideration.

4. The first tribunal wrongly treated a two-year conditional discharge as meaning that deportation could be justified only in the most exceptional circumstances. Neither the statute nor the Immigration Rules supported that threshold. There was no necessary anomaly between a mild sentence for the offences and a recommendation based on the risk posed by the offender’s continued presence in the United Kingdom. The first tribunal should not have speculated about the sentencing judge’s reasons.

5. The appellant’s absence of any lawful right to remain could not count as a factor against deportation. Lawful and substantial residence might be relevant because of the life established in the United Kingdom, but the contrary position would produce a perverse result. The reconsideration tribunal was entitled to find minimal Article 8 interference and no substantial reason to exercise the Secretary of State’s discretion differently.

• Court of Appeal (Civil Division) — dismissed the appellant’s appeal: [2008] EWCA Civ 671.
• Asylum and Immigration Tribunal (reconsideration) — on 26 June 2007 found that the first tribunal had materially erred in law and substituted a determination dismissing the appeal against the deportation decision.
• Asylum and Immigration Tribunal — on 14 September 2006 allowed the appeal against the Secretary of State’s decision to make a deportation order.