Case No: C5/2006/2389
Neutral Citation Number: [2007] EWCA Civ 270
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL 
[AIT No. IM/18274/2005]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 21st February 2007

Before:

LORD JUSTICE RIX
and
LORD JUSTICE GAGE

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Between:

	DD (Turkey)	
Appellant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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MISS N MALLICK (instructed by Messrs Stuart Karates) appeared on behalf of the Appellant.

MISS E GREY (instructed by Secretary of State for the Home Department) appeared on behalf of the Respondent.
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Judgment
Lord Justice Gage:

1.	The applicant in this application for permission to appeal is a native of Turkey.  On 11 November 2002 she arrived in the United Kingdom and claimed asylum.  On 26 November 2002 she withdrew her asylum claim.  On 21 March 2003 she lodged an application for leave to remain in this country.  On 7 May 2003 that application was rejected by the Secretary of State.  She made a further application for leave to enter which was also rejected.  She appealed to the Immigration Appellate Authority. Her appeal was heard and rejected by Immigration Judge James Devittie.  His decision is dated 24 November 2005.

2.	  She then applied to the Asylum and Immigration Tribunal for reconsideration.  On 15 December 2005 a single Immigration Judge ordered her appeal to be reconsidered on two grounds.  They were expressed in the reasons for decision as follows: “First, the Immigration Judge may have failed to give reasons why evidence produced by the appellant that she merely lists at paragraph 6 of the determination enabled him to conclude as he did in paragraph 11.  Secondly, the Immigration Judge may have failed to follow section 85(1) of the Nationality Immigration and Asylum Act 2002 in not dealing with the refusal of the appellant’s application for variation of leave based on the Turkish Workers’ Association Agreement.  The appellant will, however, have to explain to the tribunal why that figure was material.”

3.	On 30 August 2006 her appeal to the AIT was dismissed.  She was refused permission to appeal to this court by the AIT and then applied for permission to this Court. Laws LJ directed that the application for permission be adjourned for an oral hearing with the appeal to follow if permission was granted.  It is on this application for permission that the matter comes before us today. I would grant permission.  

4.	The appellant’s case is summarised in the decision of the AIT as follows.  The appellant said that she and her husband had been in a relationship since November 1997.  They went through a religious ceremony and wedding reception in Bodram in Turkey in 1998.  Their son, S, was born on 1 May 1999.  Her husband had been married before to EJM in 1992 and was settled in the United Kingdom.  He came and went to Turkey, it being the plan that at some stage the appellant would come to England and live with him.

5.	She contended that her father did not like her husband because he discovered that according to Turkish law he was still legally married to his first wife, E.  Her father was angry both with him and with her.  The appellant said that her father was well known in Turkey, being the head of a national electricity company before he retired.  She said that her father had taken her green passport away from her to stop her from leaving Turkey.  After a row with him she had gone to stay with her sister, then with other relatives, before leaving Turkey to join her husband in this country.  She and her husband went through a service of marriage at the Haringey Register Officer on 28 January 2003.  Both were involved in running a restaurant.  As to the green passport which had been confiscated by her father she said that was sent to her by her mother although by 2003 it had expired.

6.	 The appellant’s husband has indefinite leave to stay in this country.  In her first application for leave to remain in this country, the appellant applied on compassionate grounds to stay with her husband.  This was refused by the Secretary of State because no passport was included in the application and accordingly her application did not comply with the Immigration Rules.

7.	The application was resubmitted with an explanation as to why the appellant had not lodged it with a valid passport.  Once again, the application was rejected.  This time the Secretary of State rejected her application because she was unable to comply with paragraph 283 of the Immigration Rules.  In particular she could not comply with condition 6 of Rule 283, namely a requirement that she held a valid United Kingdom clearance for entry in the capacity of a wife.  This was set out in the Secretary of State’s letter.  The Secretary of State was asked again to consider admitting the appellant to stay, this time on the basis of the variation of her application for leave to remain on the ground that she was entitled to take advantage of the provisions of the EC-Turkey Association Agreement “the ECTAA”.  This was rejected by the Secretary of State on the ground that the ECTAA does not permit a worker to remain in the United Kingdom for the purpose of self‑employment.  The appellant appealed to the Immigration Judge.  Before him, the issue was whether the Secretary of State’s refusal to allow the appellant to remain in the United Kingdom was a breach of her rights under Article 8 of the European Convention on Human Rights.  The Immigration Judge found that the appellant had established a private and family right and that she had participated in her husband’s business.  He also held that her return to Turkey would breach her Article 8 rights but the decision to remove her was not disproportionate.  He found that the appellant could without difficulty return to Turkey and make a further application for settlement in the United Kingdom.

8.	The appellant next applied for reconsideration by an Asylum and Immigration Tribunal.  There were three issues before the AIT.  First, whether the Immigration Judge had failed to pay proper attention and regard to some of the evidence when he rejected the appellant’s case; that she would have had difficulty in getting her passport renewed in Turkey.  Secondly, and in a ground which is much the same as the first ground, it was argued that the Immigration Judge incorrectly rejected the appellant’s evidence that her father would be able to prevent her from renewing her passport and that her husband would be killed if he returned to Turkey.  Thirdly, the final ground was that when deciding whether it was not disproportionate to return the appellant to Turkey in breach of her Article 8 rights the Immigration Judge failed to take into account her right to remain here as a businesswoman under ECCTA.  

9.	I have referred to these grounds because it is the AIT’s decision on the third ground which is the principal focus of the appellant’s application for permission to appeal to this court.  In dealing with the appellant’s right to take advantage of ECTAA the AIT referred to the Immigration Rules applicable to a foreign national’s right to enter as a businessman or woman under ECTAA.  It held that the appellant was unable to comply with the requirement of the relevant rules, rules 30 and 32 of the 1973 Immigration Rules.  It did so on two grounds.  These rules are set out in the decision of the AIT at paragraph 13 and read as follows:

“30.  Passengers who obtain entry clearances for the purposes of establishing themselves in the United Kingdom in business, whether a new or existing business should be admitted for a period not exceeding twelve months with a condition restricting their employment.  Passengers who are unable to present such clearance but nevertheless seem likely to be able to satisfy the requirements of one of the next two paragraphs should be admitted for a period of not more than two months, with a clear prohibition on employment, and are advised to present their case to the Home Office.
“32.  If the appellant wishes to establish a business in the United Kingdom on his own account, he will need to show that he will be bringing into the country sufficient funds to establish a business that can realistically be expected to support him and any dependants without recourse to employment for which a work permit is required.”

10.	The reasons given by the AIT for dismissing the appellant’s appeal were as follows.   First, it held that the appellant was an illegal entrant who has not been granted temporary admission as required by Rule 30; and secondly she could not satisfy the requirement of Rule 32.  The AIT’s findings are set out in paragraphs 14 to 16 of its decision and it is necessary for me to refer to those paragraphs:

“It is argued on behalf of the appellant that she is a port applicant who has not deceived the immigration officers at entry and was granted entry on a temporary admission and therefore deemed to have entered legally under the 1973 Rules.  She has established her self employment, as was accepted by the Immigration Judge at paragraph 7 of the determination, and accordingly therefore her claim fell to be considered also under those relevant immigration rules.  The fact that the Immigration Judge has failed to do so amounted, it can be submitted, to a material irregularity amounting to an error of law. 

“Mr Blundell, on behalf of the respondent, invites us to find that the whole basis of that argument is misconceived.  As the Immigration Judge commented in the summary of evidence at paragraph 5(v) of the determination the appellant entered the United Kingdom illegally in 2002.  Evidence in relation to that entry was presented to us in a document signed by a J N Burnfield and was an immigration document.  That particular witness discovered the appellant hiding in the toilet of a carriage on 11 November 2002.  The appellant attempted to prevent him from opening the door.  When the appellant was eventually removed she held only a Nufus card, a driving licence and US$60 in cash.  Thus the appellant was seen to use deception to get herself into the United Kingdom and only claimed at the port because she had been discovered.  Mr Blundell submits that there is no suggestion whatsoever that the appellant was granted any form of leave to come into the United Kingdom, certainly not of the nature of leave that was required out of the provisions of EC-Turkey Association Agreement.

“However, his argument was reinforced by reference to the decision in Genkay Yolmaz [2005] EWHC 1068 (Admin).  Mr Blundell invited our attention to that decision which confirms that the exception to the operation of the standstill clause is that where deception has been employed.  In any event he submits there has been no evidence as to the nature of the business and whether or not the requirements of rules 30 and 32 of HC 509 were satisfied.  No evidence was presented on that matter and none has been considered.”

11.	A notice of appeal was entered against the decision of the AIT.  A number of grounds were put forward but those have now been refined by Miss Mallick, who appears before this court on behalf of the appellant, to three grounds of appeal.  Miss Mallick was not counsel who appeared before either the Immigration Judge or before the AIT.  In their amended form the grounds are as follows.  First, it is contended that the AIT failed to adopt the correct procedure on reconsideration under Rule 31 of the AIT Procedure Rules 2005.  Secondly, it is said that the AIT made a material error of law in considering an issue in relation to ECTAA which had not been considered by the Immigration Judge; and had done so without deciding whether an adjournment should be allowed to the appellant to adduce evidence or otherwise deal with this issue. Thirdly, it is argued that the AIT erred in failing to consider proportionality by reference to the appellant’s Article 8 rights in respect of her business interests.  It is submitted that an error in relation to any one or all of these issues is sufficient to demonstrate that the AIT made an error of law in reaching its decision.  

12.	Underlying all these grounds as they have been argued today is a submission by Miss Mallick that the Immigration Judge and the AIT did not take into account factual evidence which they ought to have heard and dealt with.  In particular it is submitted that the appellant was not an illegal entrant.  Secondly, it is submitted there was evidence of a partnership and business activity by the appellant which was before the Immigration Judge and which was not properly dealt with by him.  

13.	It has to be said that in the grounds of appeal before the Senior Immigration Judge, who directed reconsideration, none of these matters are specifically spelled out.  The closest that the grounds get to dealing with the question of whether or not the appellant was an illegal immigrant is at paragraph 25 of the grounds which state:

“For all the reasons given above, it is respectfully submitted that the appellant is a port applicant who has not deceived the Immigration officers at the entry and she was granted entry on temporary admission is deemed to have been considered as entered legally under 1973 Rules where the applicant has established a self‑employment which was accepted by the learned Judge at paragraph 7.”

14.	As is pointed out on behalf of the respondent by Miss Grey in her skeleton argument and in oral argument before this court, there is not one word in the grounds of appeal, which gave rise to the reconsideration, of an application that the AIT consider fresh evidence.  Accordingly, it seems to me that we must deal with the matter on the basis of the facts found by the Immigration Judge.

15.	I turn now to the first ground of appeal.  The submission in the skeleton argument, which has been amplified in the course of oral argument, is that the Immigration Rules provide that the AIT must first find a material error of law in order to reconsider the decision.  Rule 31 in the material parts reads:

“(1) Where an order for reconsideration has been made, the Tribunal must consider an appeal as soon as reasonably practicable after that order has been served on both parties to the appeal.
“(2) Where the reconsideration is pursuant to an order under section 103A – 
(a) the Tribunal carrying out the reconsideration must first decide whether the original Tribunal made a material error of law; and 
(b) if it decides that the original Tribunal did not make a material error of law, the Tribunal must order that the original determination of the appeal shall stand.
“(3) Subject to paragraph 2, the Tribunal must substitute a fresh decision to allow or dismiss the appeal.”

16.	As originally set out in the appellant’s skeleton argument, the submission was that the AIT failed to address the question of whether or not the Immigration Judge had made an error of law before it went on to consider ground three of the grounds of appeal from the Immigration Judge’s decision.  Ground three was the ground in respect of which it was submitted that the Immigration Judge had not taken into account ECTAA.  As it is now put before this court, Miss Mallick submits that the Immigration Judge, having failed completely to consider the Secretary of State’s decision in his letter of 22 September 2005, the AIT ought to have heard further evidence and ought to have heard evidence from the appellant herself.  

17.	In my judgment this ground of appeal must fail.  For my part, it seems to me that the AIT was considering the Immigration Judge’s failure to deal with the ECTAA issue.  It is clear from the order of the Senior Immigration Judge, directing  reconsideration, that that was to be the focus of the appeal and the matter upon which leave to appeal was granted.  It was the reason for the AIT dealing with the facts and arguments recited in the paragraphs to which I have already referred.  In that respect it was reconsidering the decision of the Immigration Judge on the basis of whether or not he had made an error of law by not taking into account the arguments under ECTAA which were relied on by the appellant.  In the circumstances, it seems to me that the AIT quite clearly considered that the Immigration Judge in that respect had made an error of law. It then went on to decide whether or not it was a material error of law.  In the result, the AIT decided that it was not a material error of law.  Accordingly, in my judgment this ground must fail.  I simply add that the submission that the AIT should have heard further evidence from the appellant was not something which was raised in the grounds of appeal considered by the Senior Immigration Judge and in the circumstances was not a course of action which should have been adopted by the AIT.

18.	I turn to the second ground.  The submission in relation to this issue is that the AIT was in breach of Rule 32 when considering evidence adduced by Mr Blundell, the Home Office Presenting Officer, relating to the appellant’s entry to this country.  This ground focuses on the issue of whether or not the appellant was an illegal entrant.  We have been referred by Miss Grey, for the respondent, to section 33(1) of the Immigration Act 1971, which deals with the question of whether a person, on entering a country, is or is not illegal.  Miss Mallick has referred us to passages in Macdonald's Immigration Law and Practice which indicates that it is not always easy to determine whether someone is or is not an illegal immigrant.    

19.	I have already referred to paragraph 15 of the AIT’s decision.  In that paragraph the AIT deal with evidence presented to it in the form of a statement from Mr Burnfield.  There is no doubt that that was evidence which was not before the Immigration Judge.  Accordingly, it is submitted on behalf of this appellant that the AIT ought not to have considered that evidence since its admission of the evidence was in breach of the rules.  The specific rule is rule 32(2) and (3).  In the material parts it reads under the heading Evidence on Reconsideration of Appeal:
 “(2) if a party wishes to ask the Tribunal to consider evidence which was not submitted on any previous occasion when the appeal was considered, he must file with the Tribunal and serve on the other party written notice to that effect, which must --
(a) indicate the nature of the evidence; and 
(b) explain why it was not submitted on any previous occasion.
“(3) A notice under paragraph (2) must be filed and served as soon as practicable after the parties have been served with the order for reconsideration.”

20.	As I have said this was, or the evidence considered by the AIT was, essentially fresh evidence, but it does not appear from the AIT’s decision that any objection was made on behalf of the appellant to it being admitted.  There may or may not be a number of reasons for that.  It is submitted by Miss Mallick on behalf of the appellant that it was mandatory requirement for the AIT not to consider that evidence without granting an adjournment or to allow the appellant the right to present further evidence.  The fact is that there is no reference to any such application being made to the AIT.  The appellant was represented by counsel and in my judgment it would be astonishing that if counsel had made any such objection and had asked for an opportunity to consider further evidence the AIT would not have not referred to that in the decision.  Be that as it may, it is submitted on behalf of the respondent that no submission has been to this court that the appellant was in any way prejudiced by this omission other than that the procedure was unfair.  It seems to me that there are a number of answers to this ground of appeal. 

21.	First of all, the AIT clearly did have power under rule 32 to receive this evidence.  If the appellant had genuinely been taken by surprise and had evidence which she wished to submit to the AIT, it seems to me that there would inevitably have been an application for an adjournment.  Furthermore, in my judgment nothing has been placed before this court to suggest that there was such evidence that the AIT ought to have considered which was not considered by the Immigration Judge.

22.	Secondly, and importantly, in my judgment the AIT would have been quite entitled to reach the same conclusion without any further evidence.  As is pointed out in her skeleton argument by Miss Grey, the appellant’s case before the Immigration Judge was put forward on the basis that she had entered the United Kingdom illegally.  It is clear from paragraph 5 of the Immigration Judge’s decision that that was the position.  He said at paragraph 5:
“She states the following in support of her claim:
…
“(b) She entered the United Kingdom illegally in 2002 in order to reunite with her husband.  She was advised to make an asylum application upon arrival.  She was motivated in part by the abuse that she was receiving from her parents.”  

23.	In those circumstances, in my judgment it is clear that her case before the Immigration Judge was that she was an illegal entrant.  The basis for Miss Mallick’s challenge to this appears to be that the Secretary of State, in the two letters rejecting the application for leave to remain, did not state that the appellant was being treated as an illegal entrant.  In my judgment that does not overcome the way in which the appellant’s case was subsequently put to the Immigration Judge, which as I have said was clearly on the basis that she was an illegal entrant.  Furthermore, in my judgment there is force in the submission made by Miss Grey that if the appellant had wished to challenge that finding by the Immigration Judge, she ought to have made that clear in her grounds of appeal to the Senior Immigration Judge asking for a reconsideration and she ought to have sought the right to adduce fresh evidence under either rule 30 or rule 32, the latter to which I have already referred.  

24.	A further point taken by the respondent in relation to this particular matter  is that the AIT was entitled in any event to reject the appellant’s claim under the ECTAA on the basis that no attempt had been made to satisfy Rule 32 of the 1973 Rules.    That rule provides that:
“An appellant who wishes to establish a business… must show that he will be bringing into the country sufficient funds to establish a business that can realistically be expected to support him …”

There was no such evidence before the AIT.  It is true that there was reference to a partnership between the appellant and her husband before the Immigration Judge.  He plainly did not have in mind at that stage whether or not it was sufficient to satisfy Rule 32.  There is nothing in his findings of fact to show that it would and no application was made for further evidence to be placed before the AIT.  In the circumstances, that is in my judgment another reason for rejecting this ground of appeal.  

25.	In the third ground of appeal it is submitted that the AIT and the Immigration Judge only dealt with the appellant’s Article 8 rights in respect of her right to family life. It did not deal with her right to private life.  In particular neither the Immigration Judge nor the AIT referred to the issue of proportionality in respect of the appellant’s private life.  In that respect what is said is that the private life was her business interests together with those of her husband.  

26.	In my judgment, this ground also must fail.  The Immigration Judge, when he considered proportionality on the basis of the need for the appellant to an establish exceptional circumstances before he could hold that the interference in family life could be proportional, directed himself correctly in relation to family life.  In doing so he expressed his decision, as I say, in terms of family life but it is quite clear that he had in mind her business interests to which he referred in paragraph 5(a) of his decision.  He made it clear that in his view the appellant could have returned to Turkey and obtained a renewal of her passport before reapplying.  

27.	The AIT in its decision endorsed this finding by the Immigration Judge.  At paragraph 26 it said:

“It is clear to us from the appellant’s immigration history that this is a classic case of ‘queue jumping’ that the appellant sought to evade proper immigration control in order to be with her husband in the United Kingdom.  There is nothing exceptional in her circumstances and nothing has been advanced before us to make it so.  There is no reason to suppose that the appellant need have any contact with her family were she to return to Turkey and even if contact was made there is nothing to suggest that anything untoward would happen to her.”

It seems clear from that paragraph that what the AIT was deciding was that there were no exceptional circumstances which would make it disproportionate to return the appellant to Turkey, where she could renew her passport and then return to this country.  That finding, even if it is not specifically expressed in terms of private as well as family life, seems to me to apply to both.  In either circumstance, that ground also must fail.  

28.	There is one further matter to which I must refer.  At paragraph 27 the AIT said:

“We find that the Immigration Judge had considered for all relevant matters in assessment and that there is no error of law in his findings or decision.”

Miss Mallick replies that was in itself an error of law, since the tribunal had been discussing and making findings in relation to the ECTAA which had not been considered by the Immigration Judge.  The answer to that, in my judgment, is that the AIT were dealing with two different matters.  First, the point about the ECTAA which was a free-standing ground of appeal; it dealt with that obligation at paragraph 22.  It stated:

“Thus, although the Immigration Judge did not consider that aspect of the EC Agreement we do not find, even if he had, that it would have made any material difference to the overall considerations which had been applied.”

That is clearly a reference to that ground, whereas paragraph 27 in my judgment is a reference to the Article 8 ground.
  
29.	For all those reasons, in my judgment this appeal must fail. As I have said I would, however, grant permission to the appellant but would, for myself, dismiss this appeal.

Lord Justice Rix: 

30.	I agree.  So the position is, having heard full argument, we grant permission to appeal but dismiss the appeal.

Order: Application granted.  Appeal dismissed.