MM (Art 8- Shala - Delay)
| Jurisdiction | England & Wales |
| Judge | DR H H STOREY |
| Judgment Date | 06 February 2004 |
| Neutral Citation | [2004] UKIAT 16 |
| Date | 06 February 2004 |
| Court | Immigration Appeals Tribunal |
[2004] UKIAT 16
IMMIGRATION APPEAL TRIBUNAL
Dr H H Storey (Chairman)
Mr G Warr
MM (Art 8— Shala — Delay) Serbia and Montenegro
This case is being reported in order to provide guidance on the proper scope of what has come to be referred to as the Shala “delay” point. It should be read in the light of the recent determination in the case of M [2003] UKIAT 00179 (Croatia), a case in which Mr Justice Ouseley, President of the Tribunal, presided.
The appellant, a national of Federal Republic of Yugoslavia, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr C B Kealy, dismissing the appeal against the decision of the Secretary of State giving directions for removal having refused asylum. Mr J Martin of Counsel instructed by Raja & Co Solicitors appeared for the appellant. Ms J Sigley appeared for the respondent.
The appellant's immigration history is important in this case. He entered the UK clandestinely accompanied by his dependent spouse and three dependent minors (dates of birth, 26 July 1993, 27 May 1997 and 7 August 1998) and claimed asylum when detected at port on 21 August 1999. A SEF was issued to him on 20 April 2001 to fully complete and return by 3 May 2001, but he failed to return it. On 7 June 2001 his asylum claim was refused under paragraphs 336 and 340 of HC395. The respondent considered he had failed without reasonable explanation to make a prompt and full disclosure of the facts of his claim and as a result of this failure had not established his claim.
The claimant was a farmer who as a sideline played drums in an Albanian folk band. His home was in Medvede in southern Serbia. The basis of his asylum claim was that he would be at risk on return because of his mixed ethnicity. The basis of his Art 8 claim was that the delay of one year and 8 months in the Home Office making a decision in his case meant that he had been unfairly denied a grant of refugee status or ELR.
The adjudicator noted that at the hearing the respondent was prepared to accept the appellant's explanation for his failure to disclose any asylum case prior to the hearing and did not challenge credibility. There was, in his words, a “bizarre set of circumstances” (He set them out thus:
“By the time the SEF letter was sent out he had moved from his notified address and his solicitors though aware of his move had not notified the Respondent. He had, however, in fact received the SEF letter almost immediately and taken it to his solicitors. They produced, he says, a letter purporting to come from the Respondent, and purporting to grant him asylum. The letter is an obvious forgery. The Appellant then states that the solicitor discarded the SEF and proceeded to apply for a travel document on the Appellant's behalf on the strength of the letter. An acknowledgement is said to have been received from the Respondent for that application form. There is a letter dated 13 June 2001 in which the solicitors make the claim. Those solicitors have subsequently ceased to do immigration work (the Appellant says they have closed down). Their letter to the Appellant so informing him is dated 10 July 2001 and also refers to the grant of refugee status. Despite his belief that he had been granted refugee status he seems to have decided nonetheless to instruct other solicitors immediately and has been represented by Raja & Co since 26 July 2001. The latter seem not have made direct enquires of the Respondent until March 2002 but were eventually informed that the grant letter was a forgery and that the Appellant's asylum claim had in fact been refused”.)
In such circumstances he did not consider it would be right to take a different view. There is no challenge to this aspect of his approach to the case.
In relation to the appellant's asylum grounds of appeal, the adjudicator was prepared to accept that the appellant's family home had been attacked by Albanians who perceived his father as pro-Serbian. He was also prepared to accept that his remaining family may have been killed after he left. Whilst doubting, in view of his ability to receive invitations to play at weddings, that the appellant himself continued to be a target, he did accept that it was “not at all unlikely that his father became a target of the UCPMB”. However, he considered that after the adoption of the Covic Plan in 2001 there had been a significant change of circumstances in southern Serbia, with the establishment of a multi-ethnic police force. He concluded that neither the appellant's mixed ethnicity nor the fact of having a pure Albanian wife would place him at risk of persecution or serious harm.
The Vice President who granted permission to appeal did not consider that the asylum grounds were arguable. We agree. The appeal before us was properly confined to the Art 8 issue.
In granting permission to appeal in this case, Vice President Barnes said:
“I do not consider that the limited exception created by Shala can arguably be claimed to extend to the wholly different situation where the claimed effect of delay is simply that had the decision-making process been carried out more speedily a different result might arguably have resulted. The Refugee Convention contains clear provision for cesser of refugee status when the conditions which brought it about no longer exist, and whatever the Secretary of State's practice in granting greater status than applies under the Refugee Convention may be, it does not seem to me that it can arguably be right to claim that this should impose a requirement to consider refugee status on a retrospective basis simply because the constraints of handling a numerically large number of applications mean that each application cannot be dealt with as quickly as the applicant might wish. “
For the above reasons I do not consider that the grounds of appeal raise any arguable issues having a real prospect of success. Nevertheless, in light of Shala, it is requisite that the Tribunal should have the opportunity of giving guidance to adjudicators as to the limits to be placed upon its ambit and for that reason only I grant permission to appeal limited to the issued raised at ground 2 of the grounds of appeal”.
The adjudicator dismissed the Art 8 grounds of appeal. In assessing the relevant circumstances, he identified two as requiring particular consideration. The first concerned delay. He noted that there had been a delay of some 18 months in the Home Office reaching a decision in his case. However, he did not think this period was unacceptable. The principles set out in the Shala case and in the Xhacka case did not, he said, apply here. In these two cases the claimants had changed their marital status in the interval between arrival and decision, so that removal potentially threatened to separate husband and wife. In this case, he stated, the whole family arrived together and would be removed together.
The second circumstance — or set of circumstances — had to do with the children. He stated at para 10.4:
“I accept that even if family life would not be interfered with by removal, his private life would be interfered with. The remaining factor on which the Appellant relies heavily is the effect of removal on his children. The youngest was only just one year old when he was brought from Serbia to the UK (quite possibly one of the factors underlying the decision to leave in the first place) and the eldest is now aged almost ten. It will undoubtedly be a wrench for them to be torn away from their English friends and schools and have to readapt, in Sead's case, to life in Serbia from which he has been away since he was about six, but they are a Serbian family with no legal right to be here and are at an age when adaptation is recognised to be relatively easy. I have a great deal of sympathy for the children's position, especially Sead, but on a careful balancing of the whole circumstances the Respondent has satisfied the burden placed on him by Art 8.2 to show that on balance removal would not be disproportionate to the legitimate needs of the UK. I am satisfied that removal in this case is within the range of reasonable responses and would not be unlawful. The human rights appeal is therefore dismissed”.
It was his conclusion, therefore, that as the children were of an adaptable age, removal of the appellant (together with his family) would not be a disproportionate measure.
The grounds of appeal maintained that the adjudicator had been wrong to distinguish the case from Shala [2003] INLR 349, [2003] EWCA Civ 233 CA in which, while accepting the general applicability of Mahmood [2001] 1 WLR 840, [2001] INLR 1 and Isiko [2001] INLR 175, the Court held that the circumstances and duration of a claimant's presence in the UK could be a powerful factor outweighing the respondent's undoubted right to control immigration, a right to which greater deference would normally be due. They argued that the appellant and family had fled Serbia at a time when there was a real risk of persecution: they were genuine refugees when they left and continued to be refugees for a further two years, until the fall of Milosevic in Serbia.
Before proceeding further we would make two observations.
Firstly, there was one obvious error in the adjudicator's approach to Art 8. At para 10.4 he had said that this case was “within the range of reasonable responses and would not be unlawful”. No doubt he had in mind here the judgment of the Court of Appeal in Edore [2003] EWCA Civ 840 which held that when dealing with Art 8 grounds of appeal, adjudicators are confined to considering whether the conduct of the balancing exercise by the Secretary of State was “within the range of reasonable responses”. However, as the...
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