Turkish national loses challenge against decision he had no right to fresh deportation appeal

About this case:

• Citation:
  [2025] CSOH 49
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Poole

Veysel Erturk, aged 23, was convicted of six offences in June 2017 and sentenced to 3 years and 9 months of imprisonment. The decision to deport him was made by the respondent on 21 September 2018, which prompted two sets of proceedings in the tribunal system and the court primarily based on the petitioner’s rights under article 8 ECHR.

The petition was considered by Lady Poole in the Outer House of the Court of Session, with Forrest, advocate, appearing for the pursuer and Massaro, advocate, for the respondent.

Significantly different claim

The petitioner entered the UK in 2011 as the family member of an EEA national, his father having Dutch citizenship. The order to deport the petitioner was not immediately executed because at the time he was in prison. In July 2018 solicitors acting for the pursuer sought a reconsideration of the decision based on his family life with his mother, stepfather and sister under article 8 ECHR.

In April 2021, the respondent reconsidered the decision but concluded that a deportation order still ought to be made. That decision was challenged unsuccessfully before the First-tier Tribunal, with permission to appeal refused by the Upper Tribunal in June 2022. Later that year, the petitioner entered into an arranged marriage with a Lithuanian national, NB, who later returned to Lithuania and gave birth to the petitioner’s son, whom he had never met.

After removal directions were issued by the respondent in February 2024, she received new submissions from the petitioner’s solicitor based on his family, marriage, and child. The petitioner was released from the immigration detention centre at Dungavel, where he had been since January 2024, while the new submissions were considered. However, once again the respondent declined to revoke the deportation order.

It was submitted for the petitioner that the matters raised in the representations of February 2024 amounted to a human rights claim, and he should therefore have an appeal to the FTT under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002. The respondent argued that the petitioner had already made a human rights claim in July 2018 and therefore his additional representations fell to be dealt with under paragraph 353 of the Immigration Rules and did not give rise to a right of appeal.

The petitioner’s second ground of challenge was that the respondent had erred in finding that his claim had no reasonable prospects of success. The nature of his claim was now significantly different from his earlier representations, and while it might not be easy for him to succeed before an immigration judge, it could not be said there were no prospects of success.

No claim to attach to

In her decision, Lady Poole said of the correct approach to the petitioner’s representations: “Had the representations in the letter of 22 February 2024 stood alone, there is little dispute that they would have amounted to a human rights claim within the definition in section 113 of the 2002 Act. But they do not stand alone, because there was an earlier human rights claim that was determined and unsuccessfully appealed through the tribunal system.”

She continued: “Following Robinson v Home Secretary (2019), the Secretary of State was correct to assess the human rights representations in the letter of 22 February 2024 under paragraph 353 of the Immigration Rules. The outcome of that exercise was that the Secretary of State did not accept there was a fresh claim. There was therefore no ‘claim’ to which the appeal rights under section 82(1)(b) of the 2002 Act could attach.”

Considering the second ground of challenge, Lady Poole said: “The material provided in 2018 had already been found of itself not to give rise to any violation of the petitioner’s human rights were he to be deported. The new material was not of the nature that it created any realistic prospect that, even when considered with the earlier material, the petitioner would succeed at tribunal. The petitioner had never met his child. The child and the petitioner’s wife were in Lithuania and had been for some time. They were not UK nationals. The marriage had been entered into when the petitioner knew he was liable to be deported.”

He concluded: “The new information, together with the previous information, created no realistic prospect of success on the basis of human rights before an immigration judge applying anxious scrutiny. The Secretary of State was entitled to find that the submissions of 22 February 2024 did not amount to a fresh claim, and that no right of appeal arose under section 92 of the 2002 Act.”

The petition was accordingly refused.