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

Paragraph 364 of the Immigration Rules requires a balancing exercise. The public interest in removal, including the seriousness of the offence and the person’s conduct, must be weighed against risk of re-offending and compassionate or personal circumstances. The immigration judge decides the relative weight of those factors. A reviewing tribunal should not interfere merely because it would have struck the balance differently, absent irrationality or another legal error. A detailed discussion of risk does not show that the seriousness of the offence was ignored where the judge expressly acknowledges it and considers it in the overall balance.

The appellant challenged a deportation order made after convictions for administering poison with intent to injure or annoy and attempting to pervert the course of justice. Immigration Judge White allowed the appellant’s application to set aside the order. On reconsideration, a second tribunal upheld the Secretary of State’s position. The appellant had permission to appeal only against the setting aside of the first determination. The central issue was whether Immigration Judge White had failed to give sufficient weight to the seriousness of the offences by concentrating on the risk of re-offending, particularly the risk to the appellant’s wife.

1. Appeal and order. The appeal was allowed. The reconsideration of Immigration Judge White’s determination was set aside, that determination was restored, and the deportation order was quashed.
2. Scope of reconsideration. The purpose of an application for reconsideration is to set the agenda for the reconsideration hearing, as explained in Miftari. The Secretary of State’s original complaint alleged that insufficient weight had been given to the seriousness of the offences. It was therefore difficult to recast the complaint as one that seriousness had not been considered at all. The appeal was not decided on that point alone.
3. Balancing exercise. Paragraph 364 of the Immigration Rules requires the public interest in removal to be balanced against compassionate circumstances. The seriousness of the offence, the person’s conduct and the risk of re-offending are relevant considerations, as recognised in CW (Jamaica) [2005] UKIAT 00110. The immigration judge has the task of deciding how those factors should be weighed. In the absence of irrationality, the judge cannot be criticised merely for the way in which the balance is struck.
4. Application. Immigration Judge White had expressly recognised the seriousness of the convictions and had considered it in the balance. His fuller treatment of re-offending was justified because that issue involved several evaluative considerations and was central to the Secretary of State’s case. He also considered the low risk of future harm, the appellant’s work, his relationship with his daughter, and the effect of removal on his family. The determination therefore disclosed no material error of law.

• Court of Appeal (Civil Division): Allowed the appeal, set aside the reconsideration, restored Immigration Judge White’s determination of 9 May 2006, and quashed the deportation order.
• Asylum & Immigration Tribunal: Immigration Judge White initially allowed the application to set aside the deportation order. On the Secretary of State’s reconsideration application, the second tribunal upheld the Secretary of State’s decision.