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

In an Article 8 deportation challenge, a tribunal’s alternative proportionality assessment is not vitiated merely because it first found that family life was insufficiently established. The tribunal must assess the facts on the assumed basis that Article 8 is engaged and weigh the interference against the public interest. It need not repeat the impact on each family member separately where it has expressly considered the child’s interests and the relationship is two-way. An adequate proportionality assessment need not describe offending in particular adjectives if the tribunal has identified the offences and sentences and balanced crime prevention against Article 8 rights. Where the deportation decision post-dates 20 July 2006, the amended paragraph 364 of the Immigration Rules applies.

The appellant, a Turkish citizen who entered the United Kingdom as a child and later obtained indefinite leave to remain, challenged the Secretary of State’s decision to deport him on public-good grounds. He relied on Article 8 of the European Convention on Human Rights, particularly his relationship with his five-year-old British son.

The Asylum and Immigration Tribunal found that contact was limited and that family life was not established. It nevertheless considered the case on the alternative basis that Article 8 was engaged and found deportation proportionate. The renewed application for permission to appeal alleged errors concerning family life, the son’s rights, the seriousness of the offending, perversity, and the applicable version of paragraph 364.

Application refused. The Court of Appeal held that none of the proposed grounds disclosed an arguable error of law with a real prospect of success.

1. The Tribunal’s initial conclusion that the relationship between the appellant and his son did not constitute family life did not undermine its alternative assessment. On that alternative basis, the Tribunal applied its mind to the facts as found, assumed that Article 8 family life existed and that deportation interfered with it, and weighed the interference against the public interest. The assessment of the balance was a matter of judgment for the Tribunal.
2. The challenge based on Beoku-Betts [2008] UKHL 39 was not properly arguable. The Tribunal had expressly reminded itself to have due regard to the interests of the appellant’s son and to the impact of deportation on his rights. Its consideration of whether contact could continue after deportation reflected the impact on both the appellant and the child. Because the relationship was two-way, the Tribunal was not required to repeat the same analysis separately or spell out the effects on each person in identical terms.
3. The Tribunal had adequately considered the offending. It referred to the 2005 conviction for handling stolen goods, the one-year sentence imposed after a guilty plea, and the earlier convictions. It expressly balanced the prevention of crime against the Article 8 rights. It was unnecessary for the Tribunal to characterise the seriousness of the offences through particular adjectives, and the conclusion that deportation was proportionate was not perverse.
4. The amended paragraph 364 of the Immigration Rules applied because the deportation decision was made after 20 July 2006. The decision-making process, recorded in the Home Office letter of 3 April 2007, superseded any earlier deportation order. The court noted that the continuing validity of EO (Turkey) [2007] UKAIT 62 might require consideration in light of MO (Nigeria), also referred to as Odelola [2009] UKHL 25, but held that the issue did not matter in this case. There was no error of law in applying the amended rule.

• Court of Appeal (Civil Division) — Renewed application for permission to appeal refused; no real prospect of a successful appeal.
• Asylum and Immigration Tribunal — Appeal against the deportation decision considered on Article 8 grounds; deportation was found proportionate. AIT No. IA/14160/2007.