Mukarkar v Secretary of State for the Home Department: CA 25 Jul 2006

The applicant, a Yemeni citizen, obtained entry clearance as a visitor by deception and then unsuccessfully sought leave to remain as a dependent relative of his many children settled here. He had numerous ailments and his health was continuing to deteriorate. In allowing his appeal the adjudicator concluded that he needed ‘permanent and constant home help’ and that it was not reasonable to expect any of his children ‘to run the risk of losing their jobs merely to accompany him back to the Yemen to stay for an indeterminate period of time whilst the application is being considered or whilst he is waiting for an appeal to be heard’. He now appealed the AIT’s reversal of that decision, and sought to be allowed to stay in the UK on human rights grounds.
Held: The appeal was allowed. The reforms brought in in 2005 were intended to restrict appeals on factual grounds. Those reforms affected the crown as much as it did applicants, and the minister had a duty to give a lead in respecting those reforms. That might mean that sometimes the government must accept decisions which went against the grain. The adjudicator was entitled to have regard to ‘the timescale likely to be involved and its consequences for the care of the appellant in the meantime. In considering the reasonableness of expecting one or more of his children to leave their commitments in this country to look after him on his return to the Yemen, it was material to consider whether such absence would be for a defined and limited period, or indeterminate.’
Carnwath LJ: ‘Ekinci was a decision on its own facts; it did not purport to lay down any general proposition of law.’ and ‘It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case . . The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law . . Nor does it create any precedent, so as to limit the Secretary of State’s right to argue for a more restrictive approach on a similar case in the future. However, on the facts of the particular case, the decision of the specialist tribunal should be respected.’


Auld LJ, Carnwath LJ, Seley LJ


[2006] EWCA Civ 1045, Times 16-Aug-2006




England and Wales


CitedEkinci, Regina (on the Application of) v Secretary of State for the Home Department CA 17-Jun-2003
The appellant, a Turkish citizen entered illegally and claimed asylum. He falsely said he had not sought asylum in another EC country. He had lived in Germany for eight years, and had twice unsuccessfully claimed asylum. Shortly after arrangements . .

Cited by:

CitedChikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .
CitedMM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another SC 22-Feb-2017
Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 18 July 2022; Ref: scu.243400