The applicant challenged the decision of the Immigration Appeal Tribunal which had reversed a decision of an adjudicator and restored the Secretary of state’s decision to deport her.
Held: The adjudicator’s decision was acknowledged to be proportionate, and struck a fair balance for the parties. As such it could not be overturned by the IAT. Where, as here, the facts were undisputed, the adjudicator’s decision on a human rights appeal under section 65 the question was only whether it was reasonable and just and proportionate. The balance struck by the Home Secretary was simply wrong.
‘in cases like the present where the essential facts are not in doubt or dispute, the adjudicator’s task on a human rights appeal under section 65 is to determine whether the decision under appeal (ex hypothesi a decision unfavourable to the appellant) was properly one within the decision-maker’s discretion, ie, was a decision which could reasonably be regarded as proportionate and as striking a fair balance between the competing interests in play. If it was, then the adjudicator cannot characterise it as a decision ‘not in accordance with the law’ and so, even if he personally would have preferred the balance to have been struck differently (ie, in the appellant’s favour), he cannot substitute his preference for the decision in fact taken.’
Judges:
Lord Justice Waller Lord Justice Kay Lord Justice Simon Brown
Citations:
[2003] EWCA Civ 716, Times 07-Jul-2003, Gazette 10-Jul-2003, [2003] 1 WLR 2979
Links:
Statutes:
Immigration and Asylum Act 1999 65
Jurisdiction:
England and Wales
Cited by:
Criticised – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Lists of cited by and citing cases may be incomplete.
Immigration
Updated: 07 June 2022; Ref: scu.183070
