Jasarevic v Secretary of State for the Home Department

Judgement

1. The appellant, Mr Ismet Jasarevic, complains of removal directions that the Secretary of State issued in his case as long ago as 20 September 2001 following refusal by the Secretary of State of an asylum application.

Mr Jasarevic has a long history in this country, some of it of a rather chequered nature. He was born in September 1957 so he is now 47 years of age. He was born as a citizen of what was then the Federal Republic of Yugoslavia. He is now, by nationality, a citizen of the Republic of Serbia and Montenegro. He came to this country in November 1986 and was granted leave to enter as a visitor, he being then 29 years of age. That leave was extended until 31 December 1987. Since that date he has had no permission to be in this country and has been here unlawfully. During that time, according to evidence given in the tribunals below, he had learned to speak fluent English, engaged in certain business activities and also had a relationship, of a nature that the tribunals below were not able fully to apprehend, with a lady, Miss Brady.

On the other side of the coin, during that time he had committed a number of offences. He was given a 24-month conditional discharge and fined £50 in November 1991 for an offence about which we know no more than that, although it will be noted that it did not attract a very condign penalty. However, much more seriously, in March 1993 he was sentenced to 42 months' imprisonment for an offence of supplying a class A drug. It is to be noted in passing that apparently the judge who sentenced him did not make any recommendation for deportation. That offence—and Mr Jasarevic's presence in this country when committing it—does not appear to have come to the attention of the Secretary of State; or, if it did, no action was taken in respect of Mr Jasarevic's presence by the Secretary of State. His next offence was in May 1999 when he was fined £150 for possession of cocaine. Also it seems that in November 1999—though the date is not quite certain on the papers before us—Mr Jasarevic was arrested for an assault upon the lady we have mentioned, Miss Brady. He was convicted of that assault and received another prison sentence of four months duration.

When he was arrested he was found to be in possession of a false passport. We were told from the bar that he had that passport not in order to avoid any immigration rules or any inability to visit other countries, because he had apparently no intention of doing the latter; he had it in order to enable him to obtain work in this country. Nonetheless, first of all, holding a false passport is an extremely serious matter, particularly for a person in Mr Jasarevic's situation; and, secondly, its use unfairly and dishonestly places Mr Jasarevic in a position in the job market in this country that he does not lawfully hold.

It was when he came to the notice of the authorities on that occasion of his arrest that he claimed asylum, as long ago as 20 September 1999. That claim was refused in September 2001 and removal directions were set. He claims to remain in a relationship with Miss Brady, though the evidence as to that before the tribunals below was far from clear. He has a sister who is a British citizen and also a brother who is present in this country, and whose immigration status is not clear to us.

Mr Jasarevic's appeal against the refusal of asylum and the removal directions came before an adjudicator as long ago as November 2003. He appealed both in respect of the asylum decision and under the European Convention on Human Rights. The adjudicator, who gave a careful and detailed judgment, rejected the asylum claim on the basis that Mr Jasarevic did not have a reasonable fear of persecution should he be returned to his home country, and also held that the conditions that would meet him there were not such as to infringe his rights against the authorities of this country under Article 3 of the European Convention. There is no appeal in respect of either of those determinations, both of which, if I may respectfully say so, were clearly correct.

The adjudicator then turned to Article 8 of the Convention, saying this in his paragraph 28:

"The appellant has been in the United Kingdom since November 1986, ie, for almost 17 years. He has previously, although he may not now have, a relationship with a British citizen. He has a sibling resident in the United Kingdom and he has undergone medical treatment in the United Kingdom. I find that the appellant has a private life sufficient to engage Article 8 and that his removal would be an interference in his right to respect for that private life."

The adjudicator went on to hold that, by contrast, Mr Jasarevic had no claim to a family life under Article 8 in this country: principally, but not exclusively, because the blood family to which he appealed consisted of adult siblings, a situation which does not normally attract Article 8. As to his relationship with Miss Brady, the evidence before the adjudicator was far from sufficient to establish the certainty of that relationship. Granted that the adjudicator found that a private life existed in Article 8 terms in the United Kingdom, that was sufficient to engage that Article.

The adjudicator then went on to address in some considerable detail the question of whether, if Mr Jasarevic were to be removed from the United Kingdom that would be a proportional determination, having regard, as she said, to the legitimate pursuit by the State of its objectives in relation to immigration control. She set out in detail the factors that she had taken into account, which it is only fair to her to record in this judgment:

"31 The factors I have taken into account include (in summary) :

• Although the appellant has previously established a business that employed an unspecified number of people, he is not currently employed and does not appear, on the basis of the evidence before me, to have been for at least a year. Although his brother said that he intended establishing a business with the appellant next year there was no evidence other than oral evidence to this effect, no business plan and no indication to what extent the appellant would, in the light of the medical evidence be able to work in any event.

• The length of residence of the appellant in the United Kingdom at the time of his application for asylum (13 years) , that a further 13 months elapsed prior to the respondent interviewing him in connection with his asylum application, that a decision on the application was not made for a further 7 months (September 2001) by which time the appellant had been in the United Kingdom for almost 15 years, that a supplementary reasons for refusal letter was served almost a year after that which did not address the '14 year concession' application and that by the time of the hearing the appellant has been in the United Kingdom for almost 17 years.

• That the appellant applied for asylum when arrested.

• That the appellant speaks fluent English.

• The appellant has been convicted of four offences, two of which (in 1993 and 1999) resulted in custodial sentences, although he was not recommended for deportation. One of the serious offences was for passport offences and the other for supply of a Class A drug.

• The '14 year concession'. Although I am unable to adjudicate on Home Office policies, the principles set out in the policy can be considered as elements to be considered in assessing the balance to be drawn between maintaining effective immigration control and the effect on individuals. This concession was introduced to enable the respondent to comply with the European Convention on Establishment, which was ratified by the United Kingdom in 1969. Criminal offences which are spent under the Rehabilitation of Offenders Act 1974 (the conditional discharge in 1991 would fall into this category) and behaviour which happened over 5 years previously have not normally been considered sufficient to outweigh positive ties with the United Kingdom. My understanding of the operation of the policy was that where the continuous residence was in excess of 14 years, unless the countervailing factors were exceptionally serious indefinite leave to remain would usually be granted.

• I have doubts whether there is in fact a subsisting relationship between the appellant and Ms Brady. If there is and she is 'much better' and if the relationship has subsisted for the length of time claimed I can see no reason why at the very least a letter could not have been written by her or her parents or others who have seen them together to confirm this.

• He is suffering from depression.

• His mother and another brother are in Serbia although his contact with them is limited and he is not close to them.

• There have been significant changes in Serbia since he left there, some of which mean that he would no longer be at risk of...