Krasniqi v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Sedley,Lady Justice Arden,Lord Justice Chadwick
Judgment Date10 April 2006
Neutral Citation[2006] EWCA Civ 391
Date10 April 2006
Docket NumberCase No: C5/2005/2345

[2006] EWCA Civ 391




Royal Courts of Justice

Strand, London, WC2A 2LL

Before :

Lord Justice Chadwick

Lord Justice Sedley and

Lady Justice Arden

Case No: C5/2005/2345

Between :
Secretary of State For The Home Department

Mr R Husain (instructed by Messrs TRP) for the Appellant

Miss K Grange (instructed by the Treasury Solicitor) for the Respondent

Lord Justice Sedley

The appellant is a citizen of the federal state of Serbia and Montenegro – all that remains of the Federal Republic of Yugoslavia – but is herself of Albanian ethnicity. Her home is the town of Medvedje in the Presevo Valley in Serbia. She is now 54 years old. She reached the United Kingdom in August 2000 and claimed asylum on arrival.


Among the facts found by the Adjudicator are the following. At the age of 15 the appellant was bigamously married off by her father to an older man who already had a family and children and who was repeatedly violent to her. She had a son and a daughter by him. Because he taught Albanian and was politically active in an Albanian party, the Serb authorities on more than one occasion arrested and harassed the entire family. Finally, in May 2000, in the course of a further Serb raid, the appellant and her daughter were gang-raped. Her husband then became violent towards them both. The appellant escaped and made her way here, but she has lost all contact with her son and daughter.


It was not until April 2004 that the Home Secretary gave a decision on the appellant's claim to protection. In the meantime she had formed a close relationship with another woman, Albana Lamaj, an asylum-seeker from Kosovo and, like the appellant, a victim of rape by Serb troops. In this country Ms Lamaj, who is now 24, had formed a relationship with an Albanian man which had broken down but as a result of which she bore a child in August 2004. The two women now live together and are bringing up the child. They form a stable and committed family.


While the characterisation of such a household for article 8 purposes remains problematical 1, no issue arises on it in the present case. The Home Secretary accepts that on any view the right to respect for private life is engaged by the intended removal, and the approach of the parties and of the tribunals below has been to treat the appellant's private life as cognate with family life.


For reasons which it is not necessary to examine, on her appeal against the Home Secretary's refusal of her claims the appellant's asylum claim was rejected. So were her claims to protection by virtue of articles 2 and 3 of the ECHR. But the adjudicator, Mrs V.A.Osborne, in a determination promulgated on 1 February 2005, allowed her appeal under article 8.


Ms Lamaj's application for asylum failed on appeal in May 2001. Her subsequent application for protection on human rights grounds is still undetermined, although a separate application has been refused under the "one-off" admission policy.


The adjudicator was understandably critical of the Home Office's failure, despite a number of adjournments, to determine Ms Lamaj's application so that either her status would have been secured (and hence be a fixed point in Ms Krasniqi's appeal) or her appeal against a refusal could be heard jointly with Ms Krasniqi's appeal. Instead the adjudicator had to determine the latter appeal on its own.


The adjudicator, having carefully considered the evidence of both women and psychiatric evidence, concluded that, while it had a sexual component, "that is not the central force of their relationship…. I am satisfied that their relationship is an exclusive and enduring one." She found accordingly that "a family life does exist for these two women".


One difficulty which confronted both the appellant and the adjudicator was that an article 8 claim had not been made in terms to the Home Secretary, so that – as the adjudicator put it – "it was technically only raised for the first time at the hearing before me". But the adjudicator, having noted it, went on to consider the proportionality of removal. She did so on alternative assumptions: that either it was the appellant alone who would be removed, since no decision had yet been reached about Ms Lamaj's status, or the two women would be removed to different countries – Ms Lamaj to Kosovo and the appellant to Serbia. The adjudicator, applying what was then thought to be the law 2, concluded that if the Home Secretary had been given the opportunity to consider the article 8 claim he could not reasonably have refused it. It is now established that the proper test was the adjudicator's own appraisal of proportionality 3, but that would necessarily have been the same. Thus the error of law, if error it was 4, was not material to the present issue.


In the Home Secretary's grounds of appeal to the IAT, no point was taken on the adjudicator's power to entertain the article 8 claim. The grounds, in substance, were that the adjudicator had erred in her appraisal of the proportionality of removal. They are poorly drafted but they appear to contain these contentions:

a) that the adjudicator had failed to explain or justify her conclusion;

b) that removal would not be disproportionate;

c) that the finding that removal would result in permanent separation was speculative;

d) that it was pure speculation that the appellant would harm herself if removed.


In giving permission to appeal, the single member, Mr S.L.Batiste V-P, wrote:

"The article 8 claim does not come within the terms of the Immigration Rules and the correct test therefore is whether it is 'truly exceptional' as described by the Court of Appeal in Huang [2005] EWCA Civ 105, which reflects the earlier guidance of the House of Lords in Razgar. The adjudicator appears to have erred in law in not identifying any truly exceptional factors and also appears wrongly to have prejudged the outcome of an application under the Immigration Rules from Serbia.

"The grounds of appeal raise issues which if sustained before the tribunal could amount to a material error of law by the adjudicator."

The question of prejudgment had not in fact featured in the Home Secretary's grounds. For the rest, the final paragraph of the grant of permission appears to open up every ground capable of being extracted from the Home Secretary's application. This is not, with respect, an ideal way of ensuring that only viable questions of law go to the AIT.


The AIT (Mr C.J.Hodgkinson, Mrs J Holt and Mr P Bompas) , replacing the IAT under the transitional provisions, allowed the Home Secretary's appeal on the ground that the adjudicator had made material errors of law. First, they held, she had made a speculative finding that the two women could not live together either in Serbia or in Kosovo. Secondly, she had wrongly treated Ms Lamaj as unable to leave the United Kingdom until her appeal rights had been exhausted. Thirdly, she had found a risk of self-harm established upon evidence that was equivocal. Fourthly, she had overlooked the possibility of the appellant's obtaining entry clearance to rejoin Ms Lamaj and the child here. Lastly, she had failed to explain why the appellant's circumstances were truly exceptional: many married couples were after all as close as this couple were.


All of these are on the face of them matters of fact, not of law, and hence outwith the AIT's jurisdiction. They become matters of law only if they are (a) demonstrably erroneous or baseless, not simply debatable; and (b) potentially determinative.


Permission to appeal to this court was granted by Mr John Freeman on behalf of the AIT, "solely on the basis that the Tribunal may not have considered all the evidence before them on the question whether the appellant and her 'partner' could live together in either Kosovo or Preševo." He added comments supportive of the AIT's reasoning under two other heads. The appellant's notice records the grant of permission and in section 7 amplifies the single member's ground. But the skeleton argument submitted by her counsel, Raza Husain, seeks to take two more fundamental points: first, that the AIT had no jurisdiction to entertain the appeal, since the Home Secretary's grounds disclosed no question of law; secondly, that the AIT in any event failed to identify any error of law in the adjudicator's decision.


Counsel for the Home Secretary, Kate Grange, invites the court to refuse permission to take these points because they have no prospect of success. On the issue on which permission to appeal has been granted, the possibility of resuming the relationship in Kosovo or Serbia, she concedes that the AIT "may not have considered all the evidence" – they plainly failed to do so—and is prepared to concede an order for remission to the AIT on this ground alone. Mr Husain is not satisfied with this: he seeks the restoration of the adjudicator's decision.


In my view Mr Husain ought to be allowed to take the new points. No objection is taken to them on grounds of time; the Home Secretary has had adequate notice of them; and they are in my view serious points of principle thrown up by the AIT proceedings.

Did the grounds of appeal to the AIT raise a question of law?


By March 2005 appeal lay to the IAT, and thereafter to the AIT 5, solely on questions of law 6. Care has consequently to be taken, when the grounds of appeal against the decision of an immigration judge take issue with his or her fact findings, to ensure that there is a sufficient foundation for an argument that the findings are...

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