YM (Eritrea) v Secretary of State for the Home Department

At the permission stage, an arguable question of law arose as to whether the presumption in favour of deportation in Immigration Rules paragraph 364 carries into the Article 8 proportionality assessment under paragraph 380. Permission was granted on that single ground. A mistaken approach to family life was independently sufficient to set aside the earlier determination. The court found no substantive error in the tribunal’s evaluation of the individual proportionality factors. It did not decide the proportionality issue or treat deportation as inevitable. The court also gave guidance that administrative detention is not warehousing, must remain justified, and may cease to be justified even where the circumstances leading to detention have not changed.

The appellant, who had arrived in the United Kingdom from Eritrea as a child, faced deportation following persistent criminal offending. Immigration Judge Monro allowed his appeal on Article 8 grounds. On reconsideration, Senior Immigration Judge Waumsley found an error of law and substituted a decision dismissing the appeal. The appellant challenged both aspects of that decision. The Court of Appeal accepted that the first determination could be set aside because of the mistaken approach to family life. It granted permission to appeal on the remaining question whether the presumption in Immigration Rules paragraph 364 applied within the Article 8 assessment under paragraph 380, also noting the potential relevance of section 32 of the UK Borders Act 2007.

1. Earlier determination. The Senior Immigration Judge identified that the Immigration Judge had adopted a mistaken approach to the appellant’s family life for Article 8 purposes. That finding was sufficient by itself to set aside the first determination, regardless of whether the separate complaint concerning the weight given to the Home Secretary’s view was made out.
2. Proportionality assessment. The court found no substantive error in the Senior Immigration Judge’s tabulation and evaluation of the individual elements of proportionality. A more sympathetic assessment of the evidence might have produced a different result, but that possibility did not itself establish an error of law. A possible tension concerning the treatment of the appellant’s girlfriend’s loyalty was recognised, but the court granted permission on the distinct issue of general legal importance.
3. Arguable ground. Permission to appeal was granted on the question whether the presumption in favour of deportation under Immigration Rules paragraph 364 carries into the Article 8 proportionality exercise under paragraph 380, so that the starting point is weighted in favour of deportation. The court noted that the issue might also require consideration in light of section 32 of the UK Borders Act 2007. It did not determine the issue at the permission stage.
4. Detention. The court observed that administrative detention is not a form of warehousing. The Home Office was asked to consider immediately whether continued detention pending appeal remained justified. The court also stressed the appellant’s need for access to lawyers. Liberty to apply was granted, and expedition was left dependent on whether detention continued.

• Asylum and Immigration Tribunal: Immigration Judge Monro allowed the appeal on Article 8 grounds. On reconsideration, Senior Immigration Judge Waumsley found an error of law and substituted a decision dismissing the appeal.
• Court of Appeal (Civil Division): Lord Justice Sedley granted permission to appeal on one ground concerning the relationship between paragraphs 364 and 380 of the Immigration Rules. The substantive appeal was not determined.