GS (Article 8 – public interest not a fixity)

JurisdictionEngland & Wales
Judgment Date09 August 2005
Neutral Citation[2005] UKAIT 121
CourtAsylum and Immigration Tribunal
Date09 August 2005

[2005] UKAIT 121




Dr H H Storey (Senior Immigration Judge)

Dr J O De Barros

Mrs M Padfield JP

Secretary of State for the Home Department

For the appellant: Mr S Muquit of Counsel instructed by Aston Clark Solicitors

For the respondent: Mr L Parker, Home Office Presenting Officer

GS (Article 8 — public interest not a fixity) Serbia and Montenegro


The appellant is a national of Serbia and Montenegro. The respondent decided on 18 February 2004 to refuse his application for further leave to remain and to give directions for his removal. His appeal against that decision was heard by an Adjudicator, Mr D.E. Collyer who in a determination notified on 20 May 2004 allowed the appeal on Article 8 grounds. The respondent then appealed against that decision to the Tribunal. By virtue of Article 5 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005, the appeal now comes before us as a reconsideration.


The grounds of appeal brought by the Secretary of State were threefold. The first two alleged that the Adjudicator had failed to pay due deference to the decision of the respondent. Mr Parker conceded that these two grounds have now fallen away in the light of the recent Court of Appeal judgment in Huang [2005] EWCA Civ 105. Despite accepting that it was unlikely that the appeal would have been pursued had it been known what Huang was to establish, Mr Parker confirmed that he wished to pursue the appeal on the third ground (set out in paragraphs 3 and 4). This contended that the Adjudicator had been wrong in finding the appellant's case to be exceptional.


We have some reservations whether ground 3 was entirely free-standing; it appears to further develop the due deference/review points arising under the first two grounds. Paragraph 4 reads:

“It is submitted that this is not an exceptional case in which the Adjudicator has been correct in finding the decision was outside the range of reasonable responses open to the Secretary of State…”


However, we are prepared to consider it as freestanding since if the Adjudicator was indeed wrong to regard the cases as exceptional, then it follows from the principles set out by the House of Lords in Razgar that he had perpetrated a material error of law.


The grounds contend that the reasons given by the Adjudicator for allowing the appeal did not demonstrate that the case was an exceptional one:

“His reasons were the length of time the appellant had been in the UK, in this case 5 years, his positive contribution since he had been in the UK and that he has no family or social ties, education, employment and housing if he was returned to Kosovo.”


This is not a promising start for a ground of appeal since it plainly fails to identify all of the reasons given by the Adjudicator. In particular the Adjudicator placed considerable emphasis on two additional quite separate factors.


Firstly there was the fact that when the appellant arrived in the UK in April 1999 as an orphaned unaccompanied minor from Kosovo, he had legitimate reasons for coming to the UK. Both this Adjudicator and the Adjudicator who had dealt previously with his asylum appeal had accepted that the appellant had genuine asylum-related reasons for leaving Kosovo when he did.


Furthermore, there was the factor of delay. It was accepted that it was not until 16 March 2001 that the respondent had made a decision on the asylum application the appellant made in April 1999. The Adjudicator earlier found that “Any delay in decision making … are not caused by the appellant or his representatives”. And at paragraph 37 he stated: “I find that the fact that the appellant was in the United Kingdom legitimately and that his earlier claims were subject to delay that were not his cause is a further positive factor when assessing the proportionality of the respondent's decision”. We also note that, even though the appellant had only been granted six months exceptional leave to remain until September 2001, his subsequent in time application for further leave to remain made on 10 August 2001 had not been the subject of decision until 18 February 2004, a date well past the time when he turned 18 (5 September 2001).


Before leaving the issue of delay, we should clarify that the Adjudicator here treated it as a relevant factor only and going to the effect that it had on the appellant becoming as a result an “integrated alien within the United Kingdom with few if any remaining ties to his country of origin” (paragraph 45). Had he sought to treat it as decisive or as a factor on its own he would have been in plain error...

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