The adjudicator’s function is effectively to retake the Home Secretary’s decision. In doing so he will have regard to the Home Secretary’s policy in relation to the deportation of offenders as a material fact but not as a substitute for or a fetter on the adjudicator’s own judgment. The court substantially departed from the approach taken in earlier cases to the question how far should the adjudicator, in an Article 8 case, arrive at his own independent judgment in deciding whether removal of an appellant would be proportionate (given the legitimate aim of fair immigration control) and therefore lawful by force of Article 8(2). The adjudicator was required: ‘to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant’s favour notwithstanding that he cannot succeed under the Rules.’
Judges:
Lord Justice Laws Lord Justice Judge Lord Justice Latham
Citations:
[2005] 3 WLR 488, [2005] EWCA Civ 105
Statutes:
European Convention on Human Rights 8
Jurisdiction:
England and Wales
Cited by:
Cited – Machado v Secretary of State for the Home Deptment CA 19-May-2005
At issue was a decision of the Home Secretary to deport on grounds of public policy a foreign national married to an EU national with a right of establishment in the United Kingdom. The substantive issue was whether the decision of the IAT to uphold . .
Cited – Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.
Immigration, Human Rights
Updated: 29 May 2022; Ref: scu.223280