MB (Huang – proportionality – Bulletins)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 25 April 2005 |
| Neutral Citation | [2005] UKIAT 92 |
| Court | Immigration Appeals Tribunal |
| Date | 25 April 2005 |
[2005] UKIAT 92
The Honourable Mr Justice Ouseley (President)
Mr G Warr (Vice President)
His Honour Judge G Risius CB (Vice President)
IMMIGRATION APPEAL TRIBUNAL
MB (Huang — proportionality — Bulletins) Croatia
For the Appellant: Mr G Lee, instructed by Sutovic and Hartigan
For the Respondent: Mr J Gulvin, Home Office Presenting Officer
This is an appeal against the determination of an Adjudicator, Professor A Grubb, promulgated on 14 April 2004. He dismissed the Appellant's appeal against the refusal by the Secretary of State of leave to enter the United Kingdom on asylum grounds, and the refusal of the claim to remain on Articles 2 and 3 ECHR grounds.
For the reasons we come to, this appeal is dismissed. We consider it appropriate to say that this is a model determination. Save for an immaterial error of law induced by the Tribunal through M* (Croatia) [2004] UKIAT 00024 and by earlier Court of Appeal decisions, as later exposed by Razgar [2004] UKHL 27, [2004] Imm AR 381, and by Huang [2005] EWCA Civ 105, it could be studied, and emulated with advantage with the availability of time, by all working judicially in this area.
The Appellant is a citizen of Croatia of Serbian ethnicity born near Vukovar in Eastern Slavonia, Croatia, in 1978. He left Croatia with his fiancée, now his wife, on 23 September 1999 and he claimed asylum in the United Kingdom on the same day. His wife now claims as his dependant. The basis of his claim was his fear of discrimination and physical violence from Croatians and that he would be forced to undertake military service in the Croatian Army to which he had a conscientious objection. The Appellant was not interviewed until 16 December 2003, over four years later. The refusal letter followed quite swiftly.
The Adjudicator considered the current position of Serbs from Croatia in the light of a number of guiding IAT decisions and concluded that there were no general or specific circumstances which meant that the return of the Appellant to Croatia would breach the Refugee Convention or Article 3 ECHR. He then rejected the separate claim that his objection to military service gave him a basis for asylum or an Article 3 claim.
The Adjudicator next considered Article 8, accepting that the Appellant had established an extant private and family life in the United Kingdom. There would be some change in the quality of family life on return to Croatia and said:
“89. There is, in my judgment, no insuperable obstacle to the Appellant and his family returning to their home village in Croatia and maintaining their existing family life together. There would, of course, be some change in the quality of their family life given the different social circumstances that exist here and in Croatia. There would also be some interference with aspects of the Appellant's private life in respect of his work and friendships. I do not, however, regard those as significant enough to amount to an interference with his Article 8 right.
90. Taking all these matters into account, I am not satisfied that the Appellant's right under Article 8.1 would be engaged by his return to Croatia. However, in case I am wrong in taking that view, I go on to consider whether any interference is justified under Article 8.2”
In the light of the then state of the law, the Adjudicator correctly directed himself in accordance with Edore v SSHD [2003] EWCA Civ 716. [2003] INLR 361, Djali v SSHD [2003] EWCA Civ 1371 and M* (Croatia). To him the crucial aspect was the delay in the Secretary of State's decision-making. He said:
“97. I have already set out the evidence, which I accept, about the Appellant's situation in the UK and that which he and his family will face on return to Croatia. I refer to and adopt the material at paragraphs [60]–[61], [84] and [86]–[87]. I do not regard his return to Croatia with his family to entail insuperable obstacles, despite the difficulties that they will surely face. They have been here 41/2 years and to their credit, they have ‘got on with life’ and made a go of things: studying, working, making friends and, most recently, deciding to have a baby which is due next month. They are not, so far as I can tell, anything other than good citizens and are not a drain on the public purse. The Appellant's ‘private and family life’ in the UK has arisen at a time when he and, of course, his wife were aware that their status was uncertain. It seems to me that apart from the issue of delay — the so-called ‘Shala point’ — the Appellant's removal to his own country from which he and his wife originate, in the circumstances that I have previously rehearsed, would not be disproportionate in furtherance of maintaining an effective and fair immigration policy. The crucial issue is, in my judgment, that of delay.”
The Adjudicator then referred to various decisions on delay, notably Shala v SSHD [2003] EWCA Civ 233. [2003] INLR 349. J (Serbia and Montenegro) [2004] UKIAT 00016, and M* (Croatia), where Shala and the facts concerning Home Office Bulletins 2/99 and 4/99 were considered. The Appellant in M* (Croatia) had arrived at almost the same time as this Appellant. The Tribunal there, and the Adjudicator here, concluded that it could not say that there was a good prospect of a favourable decision from the Secretary of State within a reasonable time of the Appellant's entry into the United Kingdom in September 1999. There was no particular advantage which the Appellant had been denied as a result of the delay in making a decision, unlike the position in Shala where a reasonably prompt decision would have enabled him to make an in-country marriage application.
Nonetheless, the Adjudicator correctly did not treat the delay in decision-making as irrelevant. He said:
“111. Context here is everything. The Appellant has not suffered any specific detriment by the delay. Indeed, it could be argued that he has had an opportunity to develop his relationship with his (now) wife and to gain experience at work and in the English language. He has, in that sense, gained from the delay when otherwise he might already have been returned to Croatia. I also note, and gratefully adopt, the Tribunal's observation in J that over the relevant period to that case, and to this appeal, it is well recognised that the Home Office has had to process a ‘high volume of asylum applications’. In these circumstances, I do not consider the delay in processing this Appellant's claim to be excessive and to be a decisive factor in determining whether the Secretary of State's decision is a disproportionate interference with the Appellant's right to ‘private and family life’.
112. In my judgment, taking account of all the circumstances of the Appellant and his family both in the UK and on return to Croatia, the decision is not disproportionate bearing in mind the area of discretion reposed in the Secretary of State. It is not outwith the range of reasonable decisions that he could make.”
The grounds of appeal contended first that the Adjudicator had erred in finding that there would be no interference with the Appellant's rights under Article 8(1) and that he erred in finding that the Appellant's rights were not engaged. The second point was that there were circumstances in which delay in decision-making could be determinative of proportionality issues: the 1998 White Paper allowed some whose decisions had not been dealt with in two years seven months to qualify for exceptional leave to remain. It hoped that by April 2001, decisions would be made within two months of receipt. Pre-July 1993 applications, if not decided by 1998, would normally attract indefinite leave to remain. For lesser delays, that would be a factor. This case fell between the “ determinative” and the “ presumptive”. It was wrong for the Adjudicator not to treat the delay as determinative and even more so for it to be treated as a windfall benefit for the Appellant. There were parallels with the October 2000 family “ amnesty” or backlog clearance exercise.
The IAT refused permission to appeal, but the Appellant contended that there were similarities with Shala including a written policy in force at the time of entry, which was said to be the May 1999 Bulletin, which it was said contained the words that there was a general presumption that Serbs from Eastern Slavonia, and certain other areas of Croatia, “ will be able to substantiate a claim to asylum on the grounds of their ethnicity”. The Court of Appeal's decision in Janjanin v SSHD [2004] EWCA Civ 448. which had considered the wording and effect of the various Bulletins issued by the Secretary of State in 1999 about Serbs from Croatia resulted from its being misled about the wording of the Bulletin of May 1999. Those arguments were being brought back before the Court of Appeal. It was also suggested that Janjanin had left open the question of a “ quasi-Shala” argument based on delay.
Statutory Review was granted, reversing the IAT's decision. Two bases were given. The first was that the Tribunal had failed adequately to address the issues which we have set out as the first contention in the appeal; this was said to have a real prospect of success. The second was that it was possible that the Shala/Janjanin point needed consideration but more importantly these arguments should be considered after the Court of Appeal's consideration of the proportionality issue in Huang.
The judge, Munby J, added and we note the comments for they are important to the way in which the case was prepared before the IAT:
“4. It is a matter of considerable concern to me that the Bundle lodged with the AC contains neither (i) the correspondence with the Home Office referred to in para 6 of the...
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