M (Croatia) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr P R Lane,The Honourable Mr Justice Ouseley,Mr P R Moulden |
| Judgment Date | 12 February 2004 |
| Neutral Citation | [2004] UKIAT 24 |
| Court | Immigration Appeals Tribunal |
| Date | 12 February 2004 |
[2004] UKIAT 24
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Mr P R Moulden
Mr P R Lane
For the Appellant: Mr P Nathan, instructed by Sutovic and Hartigan
For the Respondent: Mr G Phillips, Home Office Presenting Officer
DM (Proportionality — Article 8) Croatia *
This is an appeal against the decision of an Adjudicator, Mr M E Taylor, who, by a determination promulgated on 28 th March 2003, dismissed the Appellant's appeal on both asylum and human rights grounds from the decision of the Secretary of State refusing his claim and directing his removal to Croatia in a letter of 24 th January 2002. The Appellant is a Croatian citizen, an ethnic Serb, from Eastern Slavonia, who was born on 6 th March 1981 and applied for asylum on his arrival in the United Kingdom on 24 th October 1999.
The Adjudicator heard evidence to the effect that the Appellant was harassed in Croatia, subjected to threats and frightened of carrying out military service because of his ethnicity and his moral principles about serving in the Croatian Army as a Serb. The Adjudicator did not accept the asylum claim. He took the view that, in reality, the evidence of the Appellant had been embellished and exaggerated in relation to his treatment and in part had been untruthful. He said that he did not think the Appellant was of any interest to the police, that he had never been interviewed by them, and that no interest had been shown when he obtained a passport or when he left the country. The incidents to which he referred were of a relatively minor nature and there never had been a physical attack on the Appellant. The Adjudicator said that he was satisfied that the main reason the Appellant left Croatia was to avoid being drafted into the Army. The Adjudicator noted that his brother had served in the Army and a number of his Serb friends from the same village presently were serving.
The Adjudicator was satisfied that the Appellant would not suffer ill-treatment in breach of Article 3 or persecution if he were to be returned and undertook his military service. The Adjudicator considered the position in relation to those matters in the light of the Tribunal decision in SK [2002] UKIAT 05613.
Although a challenge was raised in the grounds of appeal against the Adjudicator's decision on asylum and Article 3 grounds, the Tribunal refused permission to appeal on those grounds. It granted permission on only one ground, which is the sole ground which is being pursued before it. This is related to Article 8 ECHR and to the effect of the decision of the Court of Appeal in Shala [2003] EWCA Civ 233 on what was said to have been the delay between the making of the asylum claim and the Secretary of State's decision on it. As we have said, the claim for asylum was made on 24 th October 1999 but the refusal letter was not produced until 24 th January 2002, something over two years later.
The Appellant's evidence, relevant to this ground, was summarised by the Adjudicator in paragraph 11:
“The Appellant says that he has settled in the United Kingdom. The Appellant is now married, lives in rented accommodation and has been working for the last two and a half years. The Appellant states he met his wife at Christmas 2001, started a relationship in January 2002 and married her just after she attained 16, with the consent of her mother, on 24 th August 2002. The Appellant says his wife could not leave the United Kingdom because her family is here and that she would not be able to go to Croatia as she cannot speak the language.”
It was submitted to the Adjudicator, and accepted by him in the light of the decision in SK, that it was proper for the Adjudicator to take that marriage into account when considering whether return to Croatia would breach any Article 8 ECHR rights. When the Secretary of State rejected the Appellant's claim in January 2002, he had done so on the basis that the Appellant was not married, as was the case at that time. The Secretary of State simply said that he was not satisfied that the removal of the Appellant would be contrary to the United Kingdom's obligations under the ECHR. There was no explicit reference to proportionality, and no obvious reason why there should have been.
The Appellant said that the relationship had started before the Respondent's decision to refuse his application for asylum and submitted that there would be insurmountable obstacles in the way of his very young wife going to Croatia and therefore it would be disproportionate for him to be returned. She was young; she could not speak the language; the economic situation was deplorable and it was said that she would be discriminated against because she was married to a Serb. The Appellant also said that as his passport had expired and for other reasons, there would be an inordinate delay in his obtaining entry clearance and in any event there was a risk that an application would fail as his wife would not be able to satisfy the maintenance test in the Immigration Rules.
The Adjudicator said, in paragraph 27:
“I am satisfied that the Appellant married Roxanne White on 24 th August 2002. I have heard evidence from Roxanne and have had sight of the original marriage certificate.”
We read that paragraph as accepting that there was an actual marriage. The Adjudicator later expressed reservations, in the circumstances perfectly understandably, about whether the marriage was in fact a genuine marriage. He said, in paragraph 33:
“Although I am satisfied the Appellant and his wife live together in rented accommodation, it has not been proved to the required standard that their relationship is that of a closely married couple. I noted that the Appellant, at the hearing, believed his wife was still attending a hairdressing college yet the Appellant's wife stated that she had left the hairdressing college in November 2002. I have also noted that the Appellant's wife was only 15 years old when they met and would have been quite impressionable and they appeared to have married in undue haste. I have, as previously indicated, not found the Appellant to be totally truthful and has exaggerated his claims and have no doubt that the speed in which he married was in order to remain in the United Kingdom.”
The Adjudicator recognised that there would be an interference with Article 8 rights if the Appellant were returned to Croatia; he said that the wife had ruled out the first option of accompanying him for the reasons which we have already adverted to, but had said that she would support an application for entry clearance by the Appellant. The Adjudicator then considered whether the return of the Appellant to Croatia would be disproportionate in the light of the lawfulness and necessity for the proper control of immigration in a democratic society. He pointed out that the Appellant became aware of the refusal of asylum very shortly after the relationship had commenced and at a time when the wife-to-be was just over 15 1/2. If her husband returned to Croatia, she would move in with her family nearby. In the light of all that, the Adjudicator concluded that it would not be disproportionate for the Appellant to return to Croatia and concluded that there were no insurmountable obstacles to prevent an application being made for entry as a spouse. He thought there would be no difficulty in obtaining a passport. He concluded by saying:
“I believe if the Appellant seeks to apply for entry into the United Kingdom it will test his commitment to the marriage and indicate whether the marriage was for the purpose of settling in the United Kingdom.”
Events had moved on by the time the appeal came before the Tribunal. There was a further statement from Roxanne Mikac, the wife, dated 24 th October 2003. In it she said, as was obvious from her appearance in front of us, that she was pregnant. She said in this statement, which without opposition from the Respondent we admitted, that on 1 st June 2003, the very date upon which permission to appeal was granted, she learned that she had become pregnant. She said “ we did not plan to have a family so soon. We wanted to wait until Dragan's immigration case was resolved ….” Because of the pregnancy, they moved out of the accommodation they had been occupying and moved into her parents' home in August. She referred to the support that her parents had offered both of them. She emphasised that her husband worked full-time and supported her. She earned some money part-time herself. She thought that she would not be able to cope financially without him or in other ways and said that their lives would be severely disrupted.
Like the Adjudicator, we accept that the decision in SK obliges us to look at the application of Article 8 in the light of circumstances as they now are and that we are not confined to examining circumstances as they were at the time of the Secretary of State's decision.
Fundamental to the Appellant's case in relation to Article 8 before us was the contention that there had been a delay by the Secretary of State in his decision-making process, which delay was a significant factor in making the return of the Appellant to Croatia disproportionate. It was said that this delay had been unreasonable and had deprived the Appellant of the opportunity of having his asylum claim determined in line with a then favourable policy. Mr Nathan relied upon Bulletin 2/99 from the Home Office which set out advice to caseworkers in relation to Serb issues. That advice said:
“There is no ‘group policy’ towards Serbian asylum seekers from Croatia and so each case is determined on its own merit.
The general presumption is that Serbs (or those with a mixed Serbian background through parents or marriage) from the...
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