EB (Kosovo) v Secretary of State for the Home Department

CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL, BARONESS HALE OF RICHMOND, LORD HOPE OF CRAIGHEAD, LORD SCOTT OF FOSCOTE, LORD BROWN OF EATON-UNDER-HEYWOOD
Judgment Date25 Jun 2008
JurisdictionEngland & Wales
Neutral Citation[2008] UKHL 41

[2008] UKHL 41

HOUSE OF LORDS

Appellate Committee

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Scott of Foscote

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

E B Kosovo (FC)
(Appellant)
and
Secretary of State for the Home Department

Appellants:

Richard Drabble QC

Duran Seddon

(Instructed by Immigration Advisory Service)

Respondents:

Philip Sales QC

Parishil Patel

(Instructed by Treasury Solicitors)

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 parents, the appellant, with his cousin, were taken in by an uncle living in this country and lived as members of his family. He went to school and entered the sixth form. In June 2003, when he was nearing eighteen, the appellant met Latifa Quresh. They began a relationship and Latifa moved in to live with the appellant and his uncle a month later. Latifa is a Somali national. She had entered this country with her mother in about 2000, was granted four years' exceptional leave to remain in January 2002 and now has indefinite leave to remain.

4

When the appellant met Latifa she was five weeks pregnant by another man, who had abandoned her. A daughter was born in February 2004 and the appellant has treated her as his own child. Later Latifa became pregnant by the appellant, but she miscarried. They have expressed an intention to remain together and marry.

5

The appellant's application for asylum provoked no immediate response and in March 2000 his solicitors wrote to the respondent, enclosing a copy of the original application. In April they submitted, in time, a form required by the respondent. Six months later, in October 2000, the respondent refused the appellant's application on the ground of his non-compliance in failing to return the form. The appellant's present solicitors did not receive a copy of this decision, and in April and June 2002 they wrote to the respondent seeking a decision and (on the latter occasion) permission for him to work. They received no response. Then, in September 2002, the respondent acknowledged that an incorrect refusal had been issued, and it was withdrawn. The solicitors, who had not received the refusal decision, pressed for an answer on the substantial application, but received no reply. There was further inconclusive correspondence. Not until 27 April 2004 was the appellant interviewed about the substance of his claims. A letter informing him of the respondent's intention to remove him was sent on 10 May 2004.

6

The appellant appealed to an adjudicator on asylum and human rights grounds, but it seems that he virtually abandoned the asylum claim and in a decision dated 13 September 2004 the adjudicator (Mr Peter Telford) found against him on both grounds. A further appeal to the Asylum and Immigration Tribunal (Mr T B Davey, Immigration Judge, Mrs L R Schmitt and Mr G F Sandall) was mounted on article 8 grounds only, but was rejected in a decision dated 27 January 2006. Because issues concerning the effect of delay were arising with some frequency and giving rise to some differences of judicial approach, it was decided to list four appeals to be heard by the Court of Appeal as test cases. The present case was one of the four. In the event, as Buxton LJ (giving the leading judgment in the Court of Appeal: [2006] EWCA Civ 1713, [2007] Imm AR 396, para 1) put it, "that enterprise failed, first because the effect in law of such delay is already well-settled by authority binding on this court; and second because all of the four cases before us fail on grounds not related to delay". Only the present case is now before the House.

Appeals on article 8 grounds

7

In R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, para 17, the House summarised, in terms to which all members of the committee assented and which are not understood to be controversial, the questions to be asked by an adjudicator hearing an appeal against removal on article 8 grounds. It said:

"In a case where removal is resisted in reliance on article 8, these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"

In practice the fourth and fifth questions are usually, and unobjectionably, taken together, but as expressed they reflect the approach of the Strasbourg court which is (see Boultif v Switzerland (2001) 33 EHRR 1179, para 46; Mokrani v France (2003) 40 EHRR 123, para 27; Sezen v Netherlands (2006) 43 EHRR 621, para 41) that

"decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued."

8

In Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, the House made two significant decisions. First, it unambiguously endorsed the decision of the Court of Appeal in the same case ( [2005] EWCA Civ 105, [2006] QB 1) that the task of the appellate immigration authority on an appeal on a Convention ground against a decision of the primary decision-maker refusing leave to enter or remain in this country is not a secondary, reviewing, function but calls for the authority to make its own decision: see para 11. Secondly, it differed from the Court of Appeal's view expressed in the same case (paras 59, 60, 63) that an appeal should be allowed only if the case was found to be "exceptional" or "truly exceptional": see para 20.

9

In seeking to give guidance to appellate immigration authorities, the House emphasised the importance of careful investigation of the relevant facts: para 15. The reason for this was well put by Wall LJ for the Court of Appeal in Senthuran v Secretary of State for the Home Department [2004] EWCA Civ 950, [2005] 1 FLR 229, para 15:

"In our judgment, the recognition in Advic [ (1995) 20 EHRR CD 125] that, whilst some generalisations are possible, each case is fact-sensitive places an obligation on both adjudicators and the IAT to identify the nature of the family life asserted, and to explain, quite shortly and succinctly, why it is that Art 8 is or is not engaged in a given case."

As Owen J observed in Mthokozisi v Secretary of State for the Home Department [2004] EWHC 2964 (Admin), para 28, "of course all will turn on the facts of the individual case".

10

In Huang, para 16, the House acknowledged the need, in almost any case, to give weight to the established regime of immigration control:

"The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2). There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be...

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