Akpinar, R (On the Application Of) v Upper Tribunal (Immigration and Asylum Chamber)
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE MAURICE KAY
- SIR STANLEY BURNTON
Areas of Law
- Immigration Law
- Human Rights Law
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
In the case of Akpinar and AV, both appealing deportation orders, the courts undertook a balancing exercise as mandated by Maslov. Akpinar's appeal was dismissed due to his serious offenses and ties to Turkey, fulfilling the requirement of very serious reasons for deportation. AV's case was remitted for rehearing to ensure fairness and proper application of the Maslov principles.
Judgment
Sir Stanley Burnton :
Introduction
We have before us two appeals. The first, by Irfan Akpinar, is against the refusal of Nicol J to grant him permission to apply for judicial review of the refusal of the Upper Tribunal (Immigration and Asylum Chamber) to grant him permission to appeal against the decision of the First-tier Tribunal dismissing his appeal against the deportation order dated 23 January 2013 made by the Secretary of State. He contends, and contended, that his deportation would infringe his rights under Article 8 of the European Convention on Human Rights. The second is by the Secretary of State, against the decision of the Upper Tribunal (Immigration and Asylum Chamber). The First-tier Tribunal had dismissed the appeal of AV against the deportation order she had made. The Upper Tribunal allowed his appeal against the Secretary of State’s decision, on the ground that his deportation would infringe his rights under Article 8.
Both appeals were heard together because they raise similar issues as to the effect and application of the judgment of the European Court of Human Rights in Maslov v Austria [ 2008] EHRR 546 , [2009] INLR 47 .
The legislative framework and applicable Immigration Rules
Sections 32 and 33 of the UK Borders Act 2007 provide, so far as material:
“32. Automatic deportation
(1) In this section “foreign criminal” means a person—
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
...
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). ...'
33. Exceptions
(1) Section 32(4) and (5)—
(a) do not apply where an exception in this section applies (subject to subsection (7) below), and
(b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
(a) a person's Convention rights, or
(b) the United Kingdom's obligations under the Refugee Convention.”
The relevant provisions of the Immigration Rules are, so far as relevant, as follows:
“A362. W