EB (Kosovo) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 25 June 2008 |
| Date | 25 June 2008 |
| Court | House of Lords |
House of Lords
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood
Representation
Mr Richard Drabble QC and Mr Duran Seddon instructed by Immigration Advisory Service, for the Claimant;
Mr Philip Sales QC and Mr Parishil Patel instructed by the Treasury Solicitor, for the Secretary of State.
Cases referred to:
Advic v United Kingdom1995 ECHR 25525/94, EComHR; (1995) 20 EHRR CD125
Boultif v Switzerland2001 ECHR 54273/00; (2001) 33 EHRR 50
Chikwamba v Secretary of State for the Home DepartmentUNK[2008] UKHL 40; [2008] 1 WLR 1420
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
Huang, Abu-Qulbain and Kashmiri v Secretary of State for the Home DepartmentUNK[2005] EWCA Civ 105; [2005] Imm AR 240; [2005] INLR 247
Huang v Secretary of State for the Home Department;, Kashmiri v Secretary of State for the Home DepartmentUNK[2007] UKHL 11; [2007] 2 AC 167; [2007] 4 AllER 15; [2007] Imm AR 571; [2007] INLR 314
Konstatinov v Netherlands2007 ECHR 16351/03
Mokrani v France2003 ECHR 52206/99; (2005) 40 EHRR 5
Mthokozisi v Secretary of State for the Home DepartmentUNK[2004] EWHC 2964 (Admin)
Nnyanzi v United Kingdom2008 ECHR 21878/06; (2008) 47 EHRR 18
R (on the application of Mrs A) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 655
R (on the application of Mahmood) v Secretary of State for the Home Department[2000] EWCA Civ 315
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
Secretary of State for the Home Department v AkaekeUNK[2005] EWCA Civ 947; [2005] Imm AR 701; [2005] INLR 575
Senthuran v Secretary of State for the Home DepartmentUNK[2004] EWCA Civ 950; [2004] 4 All ER 365
Sezen v Netherlands2006 ECHR 50252/99; (2006) 43 EHRR 30
Shala v Secretary of State for the Home DepartmentUNK[2003] EWCA Civ 233; [2003] INLR 349
Strbac and Anor v Secretary of State for the Home DepartmentUNK[2005] EWCA Civ 848; [2005] Imm AR 504
International instruments judicially considered:
European Convention on Human Rights, Article 8
Human rights Article 8 of the ECHR proportionality precarious immigration status strength of relationship relevance of delay in decision-making process procedure and process unaccompanied minors immigration policy inconsistent and unfair outcomes
The Claimant, a Kosovar, arrived in the United Kingdom with his cousin in September 1999 and applied for asylum. They were both unaccompanied minors and had fled Kosovo as a result of the conflict there. The policy at that time in relation to Kosovan asylum seekers who were unaccompanied minors was to grant exceptional leave to remain for four years with the prospect of then being granted indefinite leave. The cousin was granted four years' exceptional leave to remain and subsequently indefinite leave. Following a series of administrative errors and delays, the Secretary of State for the Home Department did not consider the Claimant's substantive asylum claim until April 2004. By that time, he was eighteen years of age and no longer entitled to benefit from the policy relating to unaccompanied minors. The Secretary of State refused the Claimant's application and served notice of removal. In the meantime the Claimant had begun a relationship with a Somali national. She later gave birth to a daughter from a previous relationship and the Claimant treated the child as his own.
An Adjudicator dismissed the Claimant's appeal under Article 8 of the ECHR. On reconsideration, the Asylum and Immigration Tribunal upheld that decision. The Claimant appealed. The Court of Appeal was prepared to assume that, had an earlier decision been made, it would probably have been favourable to the Claimant, but held that removal would not interfere with his family life and that the argument on delay did not therefore arise. The Claimant appealed to the House of Lords.
Held, allowing the appeal and remitting the case to the Asylum and Immigration Tribunal for reconsideration:
(1) it was difficult to follow the Adjudicator's reasoning in his conclusion that removal would not violate the Claimant's rights under Article 8 of the ECHR as he had failed to consider whether it was proportionate to separate the Claimant from his girlfriend and informally adopted child and whether it was reasonable to expect the girlfriend to move to an unfamiliar country taking into account the fact that she had exceptional leave to remain in the United Kingdom; the Adjudicator had not accurately or adequately addressed the human problem raised by the appeal; furthermore, the Adjudicator had failed to assess the strength of the relationship between the Claimant and his girlfriend; the Tribunal had done nothing to make good these deficiencies (paras 18 and 23);
(2) although there was no specific period in which an immigration decision had to be made, it did not follow that delay in the decision-making process was necessarily irrelevant; delay could be relevant in any one of three ways; first, during the period of delay, a claimant might develop closer personal and social ties and establish deeper roots in the community than he could have shown earlier; the longer the period of delay, the more likely it was that the Article 8 claim would necessarily be strengthened; plainly, the Secretary of State's delay in resolving the Claimant's application was relevant in this way (paras 14, 23, 27, 28 and 35);
(3) secondly, a claimant without leave to enter or remain was in a precarious position as he or she could be removed at any time; in these circumstances, any relationship entered into was likely to be initially tentative; that was particularly the case where the other party to the relationship was aware of the claimant's precarious position; that had been treated as relevant to the quality of the relationship: R (on the application of Ajoh) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 655 considered; with time, the sense of impermanence would fade and an expectation would grow that if the authorities had intended removal they would have taken appropriate steps (paras 15, 28 and 35);
(4) (Lord Brown of Eaton-under-Heywood dissenting) finally, delay could be relevant in reducing the weight otherwise to be attached to the requirements of fair and firm immigration control if the delay was shown to be the result of a dysfunctional system that yielded unpredictable, inconsistent and unfair outcomes; in the present case, the Claimant's cousin, whose position was not materially different and whose claim had been dealt with by the Secretary of State at an earlier stage, was granted exceptional leave to remain; to the extent that inconsistency had been shown, it might have a bearing on the proportionality of removal: Akaeke v Secretary of State for the Home DepartmentUNK[2005] EWCA Civ 947 applied (paras 16, 28 and 32);
(5) the process of determining whether, and to what extent, delay was relevant to an assessment of proportionality under Article 8 required a judgment in the round: Strbac v Secretary of State for the Home DepartmentUNK[2005] EWCA Civ 848 applied; the appellate authority had to make its own judgment which would be influenced greatly by the particular facts and circumstances of the case; there was no hard-edged or bright-line rule that could be applied to Article 8 cases (paras 12 and 23);
(6) (per Lord Scott of Foscote) in the circumstances, it was grossly unfair for the Claimant to be deprived of the benefit of the policy relating to unaccompanied minors from Kosovo that had been applied to his cousin; that policy would have been applied to him had his asylum application not been woefully mishandled by the Secretary of State; therefore the case should not be remitted to the Tribunal for reconsideration (paras 3031).
Lord Bingham of Cornhill:
My Lords,
[1] The appellant, a Kosovar, arrived in this country from Kosovo, via Macedonia, on 2 September 1999. He was then aged 13. He claimed asylum four days later. It was refused on 27 April 2004, a delay of over four and a half years. Conditions in Kosovo having changed, the appellant now has no ground for claiming asylum. But had his application been decided before 10 December 2003, when he became eighteen and so ceased to be an unaccompanied minor, he would, depending on the date of the decision, under the policies in force, from time to time, have been granted exceptional leave to remain in this country for four years or until his eighteenth birthday, with at least the chance of obtaining indefinite leave to remain thereafter. The respondent Secretary of State now seeks to remove him to Kosovo. The appellant resists removal, relying on his rights under Article 8 of the European Convention on Human Rights, the right to respect for private and family life. It is not suggested that four and a half years is a reasonable time for the respondent and his officials to take to resolve an application for asylum. Thus arises the question at the heart of this appeal: what (if any) bearing does delay by the decision-making authorities have on a non-national's rights under Article 8?
[2] In March 1999 the appellant's family was forced out of its home by Serb forces. He and his cousin, a boy about a year older, were separated from their respective families and directed, with other children, to join a convoy to Macedonia. They were there accommodated in a series of refugee camps until the opportunity offered to come to this country, which they did together. The appellant has had no further contact with his family. It seems likely that the cousin, like the appellant, applied for asylum almost immediately on arrival.
[3] After seven months in the care of foster...
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