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

Under the reconsideration procedure in section 103A of the Nationality, Immigration and Asylum Act 2002, reconsideration was normally confined to the grounds on which it was sought and ordered. That restriction was a rule of practice serving efficiency, fairness and adequate notice, rather than a jurisdictional limit.

Grounds and tribunal determinations should be read as a whole, robustly and with common sense. Grounds may sufficiently allege perversity without using that word where their substance makes the challenge clear.

For Article 8 proportionality, ordinary financial advantages, self-sufficiency and an unparticularised contribution to the community cannot outweigh powerful considerations arising from unlawful immigration status and effective immigration control.

The appellant, a Turkish national who had entered the United Kingdom clandestinely, unsuccessfully claimed asylum and later established a retail business, was refused leave to remain. Immigration Judge Lingam allowed his human rights appeal on the basis that removal would interfere disproportionately with his private life.

After reconsideration was ordered, Senior Immigration Judge Freeman found a material error of law. At the second-stage reconsideration, Senior Immigration Judge McGeachy dismissed the human rights appeal. The appellant challenged McGeachy's jurisdiction, contending that Freeman had not validly identified an error of law contained in the Secretary of State's grounds.

The central questions were whether the section 103A reconsideration process was jurisdictionally confined by the formulated grounds, whether those grounds sufficiently raised perversity, and whether the original Article 8 proportionality conclusion disclosed a material error of law.

1. Appeal dismissed. Senior Immigration Judge McGeachy's determination therefore stood. Black LJ delivered the judgment, with which Patten and Ward LJJ agreed.

2. The approach in JN (Afghanistan) was a safer guide to the section 103A reconsideration procedure than Miftari, which concerned the former appeal from an adjudicator to the Immigration Appeal Tribunal. Under section 103A of the Nationality, Immigration and Asylum Act 2002, the normal confinement of reconsideration to the grounds on which it was sought and ordered was a well-established rule of practice, not a jurisdictional limitation. Departure remained exceptional. The practice promoted efficiency and ensured fair prior notice of the issues to be reconsidered.

3. The grounds, the order for reconsideration and the tribunal decisions had to be read as a whole, robustly and with common sense. A pedantic or technical construction was inappropriate. Unlike JN (Afghanistan), the appellant had adequate notice of the material challenge to the original decision.

4. The original immigration judge's Article 8 proportionality conclusion contained a material error of law. On no rational view could the identified business advantages make removal disproportionate. There was nothing else of weight on the appellant's side of the balance, while his unlawful immigration position and the public interest in effective immigration control were powerful considerations. Freedom from dependence on public funds carried no weight because it was routinely a precondition of lawful admission, not a sufficient basis for it. The alleged contribution to the community was unparticularised and could not carry significant weight.

5. The Turkey-European Community Association Agreement could not assist the proportionality balance. The immigration judge had already found that the appellant could not benefit from Article 41(1) because of fraud. His position under the standstill clause would therefore be no better if he remained in the United Kingdom than if he returned to Turkey. Treating the old rules as available if he stayed, but not if he returned, contradicted her own prior finding.

6. Although the Secretary of State's grounds did not use the word “perverse”, they sufficiently identified that challenge. Read contextually, the allegation that the judge had wrongly relied on the advantages of conducting the business in the United Kingdom necessarily alleged perversity because no other material consideration supported her conclusion. The material error of law was therefore properly within the reconsideration process.

1. Court of Appeal (Civil Division): The appeal was dismissed. Senior Immigration Judge McGeachy's determination stood: [2011] EWCA Civ 65.
2. Asylum and Immigration Tribunal, second-stage reconsideration: Senior Immigration Judge McGeachy determined that Article 8 was not engaged and, alternatively, that removal was proportionate.
3. Asylum and Immigration Tribunal, first-stage reconsideration: Senior Immigration Judge Freeman found that Immigration Judge Lingam's determination contained a material error of law.
4. Asylum and Immigration Tribunal: Senior Immigration Judge Jarvis ordered reconsideration following the Secretary of State's application.
5. Immigration Judge: Immigration Judge Lingam confined the appeal to human rights and allowed it, holding that removal would interfere disproportionately with the appellant's private life.