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

After the prescribed period in paragraph 391(a) of the Immigration Rules has expired, there is no presumption in favour of revocation and no presumption in favour of maintaining a deportation order. The earlier presumption that continuation is the proper course falls away. The application must receive a case-by-case assessment on its merits, taking account of the individual circumstances and the applicable legal framework. Revocation is therefore neither automatic nor presumed. Within the prescribed period, the policy’s presumptive effect remains substantial, so countervailing factors will generally need considerable weight.

The appellant, a Turkish national who had been convicted of affray and deported, applied for revocation of his deportation order. The Secretary of State refused the application. The First-tier Tribunal dismissed his appeal, and the Upper Tribunal upheld that decision.

The Court of Appeal granted permission on the construction of paragraph 391(a) of the Immigration Rules. The central issue was whether, after ten years had elapsed since the deportation order, the Rule created a presumption or starting point in favour of revocation, or required a different weighting of the appellant’s compliance with the order.

1. Appeal dismissed. The only issue before the court was the proper construction of paragraph 391(a) of the Immigration Rules.
2. The Rule’s plain language requires a case-by-case assessment after ten years. It creates no presumption either way. The earlier presumption that continuation of the order will be the proper course falls away, but revocation does not thereby become automatic or presumed. The relevant question depends on the circumstances of the individual case.
3. The court agreed with the obiter construction stated by David Richards LJ in SU (Pakistan) v Secretary of State for the Home Department. It rejected the suggested interpretation of ZP (India) v Secretary of State for the Home Department. That decision concerned revocation within the prescribed period and did not support a new presumption arising when the period expired.
4. Within the ten-year period, the Secretary of State’s policy has a presumptive effect which it will generally be difficult for other factors to counterbalance. After ten years, it becomes easier to contend that the balance has shifted, because the presumption has fallen away. The decision remains an individual proportionality assessment.
5. This approach is consistent with Hesham Ali (Iraq) v Secretary of State for the Home Department: appellate tribunals must make their own assessment on the facts and law, while giving considerable weight to a Secretary of State policy based on a general assessment of proportionality.

1. Court of Appeal (Civil Division): Appeal dismissed. The court upheld the Upper Tribunal’s decision on the construction of paragraph 391(a) of the Immigration Rules.
2. Upper Tribunal (Immigration and Asylum Chamber): On 29 June 2017, Judge Eyre QC dismissed the appeal and upheld the First-tier Tribunal’s decision.
3. First-tier Tribunal: On 4 July 2016, Judge Macdonald dismissed the appeal against the refusal to revoke the deportation order.