RP (Zimbabwe) & Anor v Secretary of State for the Home Department

On a first-stage reconsideration, an immigration appeal may be overturned only for an identifiable error of law. In an exceptional case, perversity may qualify, but the appellate decision-maker must distinguish irrationality from mere disagreement. A finding of perversity requires a scrupulous assessment showing that, on the evidence, only one conclusion was rationally available. The reasons must address the competing factors, including those supporting the decision under challenge.

An adult’s dependence on family members may establish family life for Article 8 purposes where the relationship has sufficient reality. Article 8 does not create an automatic route to family reunion for adults, and removal to a poor or disturbed country is not disproportionate for that reason alone.

These conjoined appeals concerned two Zimbabwean nationals whose Article 8 appeals had initially succeeded before immigration judges. On first-stage reconsideration, Senior Immigration Judge Chalkley found errors of law and directed second-stage reconsideration. The Asylum and Immigration Tribunal then dismissed both claims.

In Raquel Peters’ case, the alleged error concerned the adequacy of the reasons for finding that Article 8 family life existed with her parents and siblings. In Rodney Peters’ case, the alleged errors concerned the relevance of possible future visa applications and the finding that removal would be disproportionate because of his limited support and employment prospects in Zimbabwe. The central issue was whether either initial determination contained an error of law sufficient to justify second-stage reconsideration.

1. Raquel Peters. The initial immigration judge adequately explained the finding that she enjoyed family life with her parents and siblings. The evidence that she had lived continuously within that family environment was uncontested, and the Home Office had accepted that family life existed. No further explanation was required. The first-stage reconsideration was therefore unjustified, and the second-stage determination was overturned.
2. Rodney Peters. The immigration judge was entitled to address the Home Office submission that the appellant could return to the United Kingdom through a student visa or work permit. His conclusion that such an application would be viewed sceptically as an attempt to circumvent the Immigration Rules was rationally open to him. SB (Bangladesh) v SSHD concerned the relevance of prospects of future entry in that particular case and did not establish a general rule that such an argument could never be considered.
3. The more substantial issue was the alleged perversity of the proportionality assessment. A first-stage reconsideration cannot be used merely because the second decision-maker strongly disagrees with the first. A successful perversity challenge requires the competing factors to be set out and a demonstration that, even accepting the factors supporting the original decision, removal could rationally be regarded only as proportionate. Senior Immigration Judge Chalkley’s reasons identified only factors favouring removal and did not perform that analysis.
4. The initial decision did not establish a general entitlement to family reunion for adults. It required proof of an extant family life in the United Kingdom sufficient to engage Article 8. Although more than one view might be possible on proportionality, an initial Article 8 decision cannot be overturned on first-stage reconsideration without an identifiable error of law.
5. Both appeals were allowed. The initial immigration judges’ decisions were left standing.

• Asylum and Immigration Tribunal: On first-stage reconsideration, Senior Immigration Judge Chalkley found errors of law in the initial determinations and directed second-stage reconsideration. On second-stage reconsideration, both Article 8 appeals were dismissed.
• Court of Appeal (Civil Division): The court held that neither initial determination contained an error of law. Both appeals were allowed and the initial decisions were restored.