KL (Article 8-Lekstaka-delay-near-misses)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Storey |
| Judgment Date | 18 May 2007 |
| Neutral Citation | [2007] UKAIT 44 |
| Court | Asylum and Immigration Tribunal |
| Date | 18 May 2007 |
[2007] UKAIT 44
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Senior Immigration Judge Storey
Mr G F Sandall
Mrs W Jordan
For the Appellant: Mr S McLoughlin, from TRP Solicitors
For the Respondent: Mr J Singh, Home Office Presenting Officer
KL (Article 8-Lekstaka-delay-near-misses) Serbia & Montenegro
The judgment of Collins J in Lekstaka [2005] EWHC 745 (Admin) established that on Judicial Review of a refusal of the Immigration Appeal Tribunal of permission to appeal to it that claimant's case was arguable, but did not decide the merits of that case nor establish general propositions applicable to other cases.
As now clarified by AA (Afghanistan) [2007] EWCA Civ 12 and SB (Bangladesh) [2007] EWCA Civ 28 , the loss of a right of appeal (e.g. by being denied a grant of ELR as a minor) does not amount to a particularly significant “disbenefit” unless there are practical disadvantages that can be demonstrated in the individual case (e.g. being prevented from working or being denied needed assistance under the Children Act 1989).
Although the reliance placed by TK (Immigration Rules-policy-Article 8) Jamaica [2007] UKAIT 00025 on the “truly exceptional circumstances” test has been shown by Huang [2007] UKHL 11 to be wrong, its guidance on “near-misses” remains valid. Even when an individual's circumstances fall squarely within the rationale of a relevant immigration rule or policy and so accord with its spirit albeit not its letter, a “near-miss” does not of itself mean that an expulsion decision constitutes a disproportionate interference with an appellant's right to respect for private and/or family life.
The appellant is a national of Serbia and Montenegro, born on 18 May 1983. He seeks reconsideration of a determination of an adjudicator, Mr R.D. Lewis, notified on 18 May 2003 dismissing his appeal against a decision giving directions for his removal and refusing to grant him asylum. His application to the Immigration Appeal Tribunal for permission to appeal was refused (by Mr J Fox, a Vice President) but succeeded on judicial review. Noting that “[t]his is what I imagine will be one of the last extant claims for judicial review of a refusal by the Immigration Appeal Tribunal of permission to appeal”, Collins J quashed Mr Fox's refusal of permission to appeal and remitted the matter to the Tribunal for fresh consideration to be given. On 16 February 2006 the Asylum and Immigration Tribunal made an order for reconsideration.
The decision refusing the appellant asylum was made as long ago as 6 November 2002 and the determination was promulgated on a date prior to 9 June 2003. Accordingly the jurisdiction of the Asylum and Immigration Tribunal, who are required by transitional provisions made under the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 to treat the appeal as reconsideration, is not limited to error of law. However, since Collins J in remitting the appeal on judicial review did so on the basis of an arguable error of law, it is appropriate that we first address whether the adjudicator's determination was legally flawed.
The appellant's immigration history is of some moment in this case. He left Kosovo in January/February 1999 and went to Macedonia before arriving in the UK on 9 November 1999 and applying for asylum the same day. He was then 16. The respondent did not, however, consider his asylum claim until an interview which took place on 29 October 2002. As already noted the eventual refusal decision was made on 6 November 2002.
The basis of the appellant's claim was that he had been forced to flee his home area in Gjakova, Kosovo as a result of the Serbian campaign against ethnic Albanians. His parents decided he should leave and go to Macedonia. Subsequently he learnt that his father and paternal uncle had been killed and their family home destroyed. The whereabouts of his mother and siblings was unknown. When he came to the UK he joined his uncle and aunt and his cousin. They had fled Kosovo earlier in the war, arriving some time in 1998; they had been recognised as refugees in May 1999. Since his arrival they have treated him as their son. As a student attending college he has formed a social network of friends. He now has a British girlfriend.
Despite some misgivings the adjudicator accepted that the appellant's account was credible. In the light of the appellant's withdrawal at the hearing of his asylum grounds of appeal and the statement of the appellant's representative that the appellant would rely only on Article 8, the adjudicator went on to analyse the appellant's Article 8 claim. He found that the appellant's relationship with his uncle, aunt and cousin amounted to family life within the meaning of Article 8. He set out his analysis of the appellant's claim at paragraph 36:
“I find, however, that the respondent's action seeking to remove the appellant is in accordance with the law and has the legitimate aim of the maintenance of immigration controls. I have also considered whether removal by the respondent is proportionate in a democratic society to the legitimate aim to be achieved. I have taken into account the background evidence, which has been placed before me. The appellant has lost his father and all contact with his mother. He has formed a family relationship with his uncle's family and had developed bonds with his aunt and cousin. The appellant is now a young adult of 20 years of age. He is fit and healthy and there is no evidence that he is suffering from any psychiatric disorder because of the experiences he has undergone. The facilities available to him in Gjakova as shown in the report, are adequate for a young adult male and there are many NGOs working in the area. He will not be left to manage on his own. It is a sad fact of the troubles in Kosovo that many young men find themselves in the position of the appellant but there is no reason why he should not be able to resume an ordinary life there. Considering all these factors, I conclude that the decision to return is proportionate to the legitimate aim to be achieved.”
The application for permission to appeal raised three main grounds. First it was submitted that the adjudicator had given no consideration to the fact that the respondent had delayed three years in reaching a decision on his asylum claim. Second, it was contended that the adjudicator had not properly recognised that the appellant had no family left in Kosovo and would not be able to establish family life there. Third, it was argued that it was not reasonable to expect the appellant's uncle and aunt and cousin in the UK to follow him to Kosovo as they have been granted refugee status and his uncle was severely disabled having been shot at by Serbian forces.
In amplifying these grounds, Mr McLoughlin stated that it could not be right in general terms, that by sitting on his hands the Secretary of State can make his case stronger. As time passes, the appellant's Article 8 rights should be seen as growing stronger, not weaker. He argued further that the adjudicator had also failed to take into account the fact that the appellant's UK family had a refugee background and that the relationship between the appellant and his uncle was akin to father and son. Mr McLoughlin said it was also important that we bear in mind the opinions about the appellant's Article 8 claim expressed by Moses J (as he then was) and Collins J in the course of the judicial review proceedings. The latter had noted as relevant the European Court of Human Rights judgment in Jakupovic v Austria [2004] 38 EHRR 27 in which it had been said in the context of an Article 8 expulsion case that there would have to be very weighty reasons to remove a minor to a war torn country. Collins J had also emphasised the fact that the appellant experienced a “near-miss” under both immigration rules and policy.
Moses J in his 4 March 2004 decision granting permission to apply for judicial review stated:
“4. I do hope somebody can look at this particular case again and the claimant can stay with the only family he has. He is only 20, fit though he may be, and the idea of sending him back to Kosovo when he had been in this country since the age of 16, certainly gives pause for further thought. I hope somebody can look at this case again before it disappears without trace.”
From the subsequent letter from the respondent dated 24 April 2004 it would appear that these sentiments led the Secretary of State to review the appellant's case, but that it was decided to maintain the refusal.
In the judgment by Collins J on 18 April [2005] EWHC 745 (Admin) (hereafter “the Lekstaka case”) it was stated:
“36. One must of course also bear in mind that to remove the claimant to Kosovo would not only interfere with his family life which the Adjudicator had found to exist – and which clearly did exist – but would effectively bring it to an end. There has been a suggestion that he could keep in touch and could visit as and when he was able, it not being suggested that it would be reasonable to expect the uncle and his family to relocate to Kosovo in order to be with the claimant there. In theory that, I suppose, is possible. In reality it is a forlorn hope, partly because it presupposes that the claimant would have the means to enable him to travel to visit for any length of time; and secondly that an accommodating Entry Clearance Officer would grant him the necessary clearance to enable him to do so, because the ECO would have to be persuaded that he qualified within the terms of the visit rules. It would mean that he intended to return after the period of his visit and was able to maintain himself without working during the period when he was to be a...
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