AG and Others (Policies; Executive Discretions; Tribunal's Powers) Kosovo [Asylum and Immigration Tribunal]
| Jurisdiction | England & Wales |
| Judgment Date | 20 February 2007 |
| Date | 20 February 2007 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
C M G Ockelton, Deputy President, King TD SIJ and Grubb SIJ
Representation
Mr Mark Blundell, Senior Home Office Presenting Officer, for the Secretary of State;
Mr John Hamilton instructed by G K Associates, for the first Claimant;
Ms Linda Veloso instructed by Edward Ismail Solicitors, for the second Claimant;
Mr Raja, of Independent Law Partnership, for the third Claimant.
Cases referred to:
Baig v Secretary of State for the Home DepartmentUNK[2005] EWCA Civ 1246
DM (ProportionalityArticle 8) Croatia *[2004] UK1AT 00024; [2004] Imm AR 211; [2004] INLR 327
Edore v Secretary of State for the Home DepartmentUNK[2003] EWCA Civ 716; [2003] Imm AR 516; [2003] INLR 361
HB (Ethiopia), FI (Nigeria), EB (Kosovo) and JL (Sierra Leone) v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 1713; [2007] Imm AR 396; [2007] INLR 150
HC v Secretary of State for the Home DepartmentUNK[2005] EWCA Civ 893
Huang v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home DepartmentUNK[2007] UKHL 11; [2007] Imm AR 571; [2007] INLR 314
Huang, Abu-Qulbain and Kashmiri v Secretary of State for the Home DepartmentUNK[2005] EWCA Civ 105; [2005] Imm AR 240; [2005] INLR 247
IA (applying policies) Mauritius[2006] UKAIT 00082; [2007] INLR 328
KL (Article 8Lekstakadelaynear-misses) Serbia & Montenegro[2007] UKAIT 00044
Klass and Others v Germany1978 ECHR 5029/71; (1978) 2 EHRR 214, ECtHR
KP (Para 317: mothers-in-law) India[2006] UKAIT 00093
MA (Seven Year Child Concession) Pakistan[2005] UKIAT 00090; [2005] Imm AR 338
Mongoto v Secretary of State for the Home DepartmentUNK[2005] EWCA Civ 751
R v Secretary of State for the Home Department ex parte Mahmood[2000] EWCA Civ 315; [2001] Imm AR 229; [2001] INLR 1
R v Secretary of State for the Home Department ex parte RazgarUNK[2004] UKHL 27; [2004] 2 AC 368; [2004] Imm AR 381; [2004] INLR 349
SB (Bangladesh) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 28; [2007] Imm AR 491; [2007] INLR 259
Secretary of State for the Home Department v R (on the application of Rashid)UNK[2005] EWCA Civ 744; [2005] Imm AR 608; [2005] INLR 550
Secretary of State for the Home Department v Abdi and Others[1996] Imm AR 148
Shkembi v Secretary of State for the Home DepartmentUNK[2005] EWCA Civ 1592; [2006] INLR 512
Silver and Others v United Kingdom1983 ECHR 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75, 7136/75; (1983) 5 EHRR 347, ECtHR
Slivenko v Latvia2003 ECHR 48321/99
SS (JurisdictionRule 62(7); Refugee's family; Policy) Somalia[2005] UKAIT 00167
Sunday Times v United Kingdom1979 ECHR 6538/74; (1979) 2 EHRR 245
R (on the application of Tozlukaya) v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 379; [2006] Imm AR 417; [2006] INLR 354
Legislation judicially considered:
Nationality, Immigration and Asylum Act 2002, ss 86(3)(b) and 86(6)
Human rights Article 8 of the ECHR Home Office policies and concessions exercise of discretion outside Immigration Rules not reviewable by Asylum and Immigration Tribunal proportionality assessment of proportionality maintenance of immigration control jurisdiction Asylum and Immigration Tribunal review of exercise of discretion outside the Immigration Rules ss 86 (3)(b) and 86 (6) of the Nationality, Immigration and Asylum Act 2002
The three Claimants appealed against decisions of the Secretary of State for the Home Department either to refuse leave to remain or to set removal directions. The Claimants were unable to meet the requirements of the Immigration Rules HC 395 (as amended) but submitted that they could meet the requirements of a relevant Home Office policy. Section 86 (3)(b) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) required the Asylum and Immigration Tribunal to allow an appeal in so far as it thought that a discretion exercised in making a decision against which the appeal was brought or was treated as being brought should have been exercised differently. In accordance with s 86(6)of the 2002 Act, refusal to depart from or to authorise departure from immigration rules was not the exercise of a discretion for the purposes of s 86(3)(b).
In each case an Immigration Judge allowed the Claimant's appeal on the ground that the Secretary of State had either failed to apply, or was wrong to depart from, the stated policy. On application by the Secretary of State, orders for reconsideration were made. The appeals were listed together for reconsideration to enable the Tribunal to give guidance on the question whether, and if so in what circumstances, the Tribunal was entitled or bound to apply policies declared by the Secretary of State.
Before the Tribunal, the Claimants submitted that where the Secretary of State had published a policy, incorporating a discretion that could be exercised in favour of a person who did not meet the requirements of the Immigration Rules, the Tribunal was not merely to decide whether the Secretary of State had acted in accordance with the law in dealing with the matter. Rather, it was to proceed to make the discretionary decision for itself. The Claimants relied on the decisions of the Court of Appeal in Baig v Secretary of State for the Home DepartmentUNK[2005] EWCA Civ 1246 and Tozlukaya v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 379 as authority for this submission.
Held, directing a further reconsideration of the first Claimant's appeal, substituting a fresh determination allowing the second Claimant's appeal to the extent that it set aside the Secretary of State's decision as not having been in accordance with the law and directing that he make a new determination in accordance with the law, and substituting a fresh determination dismissing the third Claimant's appeal:
(1) it was unlikely that the Court of Appeal had intended to undermine the following principles and rules: first, a claim based on the assessed human rights of the claimant was, even if it depended on an assessment of proportionality, different in nature from one based on an assertion that the claimant should have benefited from an exercise of discretion in his favour; secondly, although the assessment of proportionality in a human rights claim was a matter for the Tribunal, it did not follow that the exercise of a discretion was a matter for the Tribunal in a case where the claimant had not shown that a decision adverse to him was incompatible with his Convention rights; thirdly, subject to the Human Rights Act 1998, an Immigration Judge was bound to observe statutory restrictions on jurisdiction, including s 86(6) of the 2002 Act, which confirmed that there were areas of discretionary judgment where a claimant's search for a beneficial outcome was not an assertion of his human rights; fourthly, claims based on human rights ought generally to be assessed in priority to claims based on the hope of a favourable exercise of discretion; fifthly, within the category of rights, issues relating to the assessment of proportionality ought to yield priority to the specific provisions of national law, and it was only where those provisions did not give the claimant the result he sought that there was any need to consider whether his Convention rights were such that he was entitled to the result despite the rules; sixthly, the phrase in accordance with the law in Article 8(2) of the ECHR did not import the whole of the national legal order into the assessment of proportionality and did not make disproportionate every governmental act that could be the subject of a successful legal challenge (paras 2632);
(2) the Tribunal was not bound or entitled to consider or review the exercise of discretion outside the Immigration Rules; the Claimants' submissions ran counter to the established principles and it was unlikely that the decisions of the Court of Appeal in Baig and Tozlukaya, or indeed any decisions of that Court, could carry the meaning for which the Claimants argued; section 86(3) gave no reason to suppose that the Tribunal had power to exercise a discretion which had not previously been exercised, and s 86(6) removed from the Tribunal's jurisdiction the review of an exercise of discretion outside the rules; furthermore, the Human Rights Act 1998 did not demand a review of a discretion, or the exercise of the discretion itself, for if the exercise of a discretion was in issue at all, it had to be because the claimant had failed to show that human rights arguments required a decision in his favour (paras 34 and 43);
(3) it was dangerous to take a few sentences from a judgment out of context; in Baig the Court was concerned to show that the claim could not possibly succeed, and nothing in that judgment should be treated as authority on the appropriate procedure in a case that was not doomed to failure; in Tozlukaya, the Court was concerned to show that it was wrong to say that a claim could not possibly succeed, and no-one reading the judgment of Richard LJ would suppose that it was intended to herald a dramatic change in the jurisdiction of the Tribunal or any inroad into the established principles (paras 36, 37 and 42);
(4) the Tribunal was bound to consider whether a particular decision was proportionate, and in so doing assess the force of the Secretary of State's claim that the decision was necessary in order to maintain immigration control; when making that decision it took into account any declared policy that incorporated a presumption that immigration control would not be enforced against persons of a category into which the claimant fell; the reason for taking such a policy into account was that it threw light on the needs of immigration control and so helped assess the proportionality of the decision in the individual case; if there was no policy that created a presumption, or if the claimant was not, on...
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